20 Cath. Law. 289 (1974)
Diocesan Attorneys' Papers Abortion and the Conscience Clause: Current Status

handle is hein.journals/cathl20 and id is 301 raw text is: DIOCESAN ATTORNEYS'
PAPERS
ABORTION- AND THE
CONSCIENCE CLAUSE:
CURRENT STATUS
DENNIS J. HORAN*
The abortion controversy is currently in the coercive stage. The hard
core proponents of legalized abortion are now busy opposing abortion'legis-
lation that keeps abortion in the criminal code, or that seeks to regulate
abortion other than through the medical practice act. Their aim is the
psychological satisfaction of making abortion not only legal, but morally
acceptable to all but the cranky Catholics. Part of the plan includes oppo-
sition of conscience clauses. Obviously this latter stance smacks of a be-
trayal of their promise that their wish was only freedom now, and thus they
are somewhat at a disadvantage before the courts, at least as far as the
conscience clause is concerned.
The initial campaign is aimed at the public hospital. In this they have
been successful and the federal courts, as exemplified by Nyberg v. City
of Virginia,' are requiring public hospitals to provide facilities and man-
power for the performance of first and second trimester abortions. The
Nyberg opinion clearly indicates that no individual can be compelled to
perform abortions or participate; yet we do hold that the hospital facili-
ties must be made available for abortion services ..  2
The usual mistaken assumption is that Roe v. Wade3 and Doe v.
Bolton' have created a constitutional right to an abortion. The acts of a
state or municipal hospital are acts of the state and their refusal to provide
facilities thus violates the equal protection clause or the due process clause
and can be rectified under 42 U.S.C. § 1983, goes the argument. This is a
typical result of Supreme Court activity which, while claiming only to
*Member, Illinois Bar. The author wishes to express his thanks to Dr. Joseph Stanton and
Mrs. Carol McAvoy for their medical research.
1 495 F.2d 1342 (8th Cir. 1974) (petition for rehearing denied, June 3, 1974). See also Doe v.
Hale, 369 F: Supp. 976 (D. Mass. 1974).
' 495 F.2d at 1347.
3 410 U.S. 113 (1973).
- 410 U.S. 179 (1973).

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