Using a handful of mostly anonymous anecdotes about pregnant women who were denied abortions at religiously affiliated hospitals, the group is demanding that Berwick's agency rewrite the rules of the Emergency Medical Treatment and Active Labor Act to force care providers to perform abortions.
The ACLU's argument stands on flimsy legal ground, according to attorneys at the Becket Fund for Religious Liberty, which has vowed to defend any hospital that comes under attack. First of all, the law in question clearly requires hospitals to safeguard "the health or safety of the woman or the unborn child." So it's no wonder that no court has declared that it requires religious hospitals to violate their conscience.
Congress passed the 1986 law simply to keep hospitals from refusing service to poor patients. That's not an issue here, because even the ACLU doesn't claim that religious hospitals provide abortions only to the rich.
Of course, the ACLU's lawyers will have an easier time making their case if, as they are asking, Berwick slips in some new regulations that they can cite in arguments before activist judges. If the organization succeeds, it will score two victories: a new path to abortions, and a massive blow to the rights of religious Americans.
That won't bother the ACLU's friends in the Obama administration. In its early days, the administration began to throw out federal regulations that protect the consciences of health-care workers. Soon after, it began pressuring a religious school, Belmont Abbey College, to provide employees with insurance coverage that violates the school's conscientious beliefs.
