The most demanding responsibility of a member of Congress, in my experience, was to remain open to the extraordinary diversity of opinion among my constituents and my colleagues. It's hard, and demands profound respect for those with whom you disagree, sometimes deeply. But it is the only way to govern in a free society.
I open with this reminder because it underlies why pro-choice legislators can support the provisions of the Blunt Amendment.
Our constitutional guarantee of religious freedom, for example, led to the development of the conscientious objector status when the draft was mandatory, the right of federal prison employees to be exempt from participating in executions, and the right of physicians to refuse to perform abortions if they had religious or moral objections.
The phrase "religious beliefs or moral convictions" or nearly identical conscience protection language has appeared in many of our laws, especially since 1973. In 1993, the Religious Freedom Restoration Act was passed overwhelmingly with the leadership of Sens. Edward Kennedy, D-Mass., and Orin Hatch, R-Utah, and Reps. Charles Schumer, D-N.Y., and Christopher Cox, R-Calif., specifically to clarify the balance between our constitutionally guaranteed individual right to religious freedom and the inherent right of a nation to address compelling national interests.
It is through this long legislative history and the constant appearance of exemptions for "religious beliefs and moral convictions" in important laws that we understand why members can be both pro-choice and pro the Blunt Amendment.
Sen. Kennedy's language in his Health Insurance Bill of Rights Act of 1997 is instructive. "An health insurance issuer may fully advise … enrollees … of the coverage's limitations on providing particular medical services (including limitations on referrals for care outside the coverage) based on the religious and moral convictions of the issuer." Sen. Daniel Patrick Moynihan's 1994 "Hillarycare" bill contained similar language. "Nothing in this title shall be construed to … prevent any employer from contributing to the purchase of a standard benefits package which excludes coverage of abortion or other services, if the employer objects to such services on the basis of a religious belief or moral conviction."
Sen. Roy Blunt's, R-Mo., language was "Nothing in this title … shall be construed to require an individual or institutional health care provider to provide, participate in, or refer for a specific item or service contrary to the provider's religious beliefs or moral convictions." His purpose was to add to the Affordable Care Act the type of language that has appeared in every other health bill of recent decades to reflect significant differences of opinion among us that emanate from religious beliefs and moral convictions. I believe the language would have been added in conference committee had the bill followed the regular legislative process as it proceeded through the Congress.
Its omission, however, has great significance and, hence, the controversy. The Affordable Care Act for the first time in our history gives the federal government the right to mandate the benefits of a national insurance package. All plans on the exchanges and all employer plans, including those self-insured by an employer, will have to provide at least these benefits. Although the Affordable Care Act includes a narrow exception for places of worship, it does not include the full religious rights language of the Religious Freedom Restoration Act nor reflect the thinking on this subject of strong pro-choice senators such as Sens. Kennedy and Moynihan. If the administration mandated coverage of abortion in a bill without a conscience clause, the issue would have been joined clearly.
It is the fear raised by the new federal power to mandate benefits without Religious Freedom Restoration Act protections that is behind the Blunt amendment. Mandates regarding both beginning of life care and end of life care will raise religious concerns, so denying these protections, which were specifically to balance the individual's right to religious freedom and the nation's right to address compelling interests, is troubling.
Strong pro-choice representatives and senators, women and men, have understood the value of the Religious Freedom Restoration Act. Until the Affordable Care Act dramatically limited protection, it was seen as essential in a democracy that guarantees religious freedom. I respect Republican Senate candidate Linda McMahon for understanding that being pro-choice does not mean denying others the right to seek the well-established protection of our conscience exemption.
Nancy L. Johnson represented Connecticut's 5th Congressional District from 1983 to 2007 and is now a senior public policy adviser at Baker, Donelson, Bearman, Caldwell & Berkowitz, PC in Washington.Copyright © 2015, Los Angeles Times