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November 30, 2008



"Moreover, it would compel Catholic health-care facilities to provide the heinous procedure."

I don't believe this is true, as it is not written to overturn existing federal conscience clause laws, nor does it make all facilities that receive public funds automagically into government activities. As for taxpayer funding of abortion, I'm not aware of how this would be the case, though if true I of course don't support it.

Joyless Moralist

Sorry, I know this is an old thread, but I've been out of town and I wanted to add a few words.

It's not entirely clear at present what the FOCA would do. The bill itself (at least as it was presented before) is quite short and now legal theorists are fighting over the actual implications. The main relevant parts are this:

(a) Statement of Policy- It is the policy of the United States that every woman has the fundamental right to choose to bear a child, to terminate a pregnancy prior to fetal viability, or to terminate a pregnancy after fetal viability when necessary to protect the life or health of the woman.
(b) Prohibition of Interference- A government may not--

(1) deny or interfere with a woman's right to choose--
(A) to bear a child;
(B) to terminate a pregnancy prior to viability; or
(C) to terminate a pregnancy after viability where termination is necessary to protect the life or health of the woman; or
(2) discriminate against the exercise of the rights set forth in paragraph (1) in the regulation or provision of benefits, facilities, services, or information.

and this:

This Act applies to every Federal, State, and local statute, ordinance, regulation, administrative order, decision, policy, practice, or other action enacted, adopted, or implemented before, on, or after the date of enactment of this Act.

So, that's the bare wording, which obviously could be taken in lots of ways. But proponents and opponents alike clearly anticipate that it will, at the very least, be used to overturn most state legislation regulating abortion, including parental consent laws, waiting periods, and laws requiring abortion providers to give their patients information about alternatives to abortion, and to give them accurate information about the level of physical development of their unborn child. Even more significantly, it would overturn the Hyde Amendment and a plethora of state laws designed to prevent tax dollars from being used to fund abortions. So while it's true, Nato, that FOCA would not actually IMPLEMENT Federal or state sponsorship of abortion per se, that result would almost certainly follow in short order, particularly with Obama and a Democratic congress in charge.

The fate of religious doctors and Catholic hospitals is more hotly disputed. However, many pro-abortion advocates clearly do regard conscience clauses (or "refusal clauses" as they prefer to call them) as "interference" in the relevant sense. And they have reasons for wanting to tear them down. Even in my own not-so-conservative state of Minnesota, I've read that abortion clinics are having trouble finding doctors who are willing to perform the procedure; the old guard of enthusiastic pro-abortion advocates from the 1970's are retiring now, and very few young doctors want to take their places. And even ones who do take up the job often quit after a short period. In part, of course, being an abortion doctor is fraught with social difficulties (you have to be from a pretty liberal family for all your relations to accept without abhorrence your decision to take a job that involves killing unborn children on a weekly basis), and occasionally also safety issues (though actual incidents of violence at abortion clinics are really quite rare.) But also, there's a big difference between accepting on an abstract level that poor women somewhere are getting abortions, and actually being the one to pick up the knife. Most people become doctors because they want to *heal* others.

But anyway, the upshot is that I'm not sure you're right that the FOCA "is not written to overturn existing federal conscience clauses." I think that IS one of the aims of many of the bill's supporters.

Although the favored rhetoric of the pro-abortion camp is that they merely want to "codify" Roe through the FOCA, it would mark a significant shift in the philosophy. Roe said that women have a "right to privacy" and that government could not therefore prevent them from getting abortions. The FOCA wants to label abortion itself a "fundamental right." In general, when we label something a "fundamental right", we tend to think that the relevant social institutions are obliged to supply it, particularly if they get Federal funding (as all hospitals do, if you count Medicare and Medicaid.) Anyway, I obviously can't say exactly what would/will actually happen, but the idea that doctors and hospitals may soon face serious pressure to perform abortions is not a fanciful one.

Nathan Smith

At least FOCA would be a democratically passed law rather than a frontal attack on democracy by judicial Pinochets. Of course, the legal malpractice that is Roe vs. Wade would still stand, but it would be rendered somewhat less relevant.

That, of course, is no comfort to Joyless Moralist. What might be some comfort is that FOCA could be overturned by a democratic process. And possibly people would start to say, "Wait a minute! If we could vote for or against FOCA, why can't we vote for or against Roe?" I think a lot of people who are pro-choice don't actually understand that America is unique among advanced nations in not allowing the abortion question to be subject to democratic choice. Many pro-choicers lack the honesty to admit that obviously spurious interpretations of the Constitutions are a morally unacceptable way to get what they want, but if the issue got reframed through this macabre act of extremism, some who hadn't thought through it before might, possibly, realize that pro-choice anti-Roe is a tenable position in a way that pro-Roe is not.

However, I don't really want to sound like I'm looking for a bright side of FOCA. Here's a question that's been bothering me. If this passes, and if government revenues end up financing abortions, will it be permissible for a Christian to pay taxes? The idea of engaging in civil disobedience and going to prison for refusing to pay taxes to an abortion-financing state is not appealing at all. Yet it seems to me the arguments point that way. Where do you draw the line? Would we keep paying taxes if the federal government was exterminating the Jews? Joyless Moralist has argued before that the government is complicit in abortion for declaring abortion to be a right. I'm not sure I agree with that. A commitment *not* to use coercion to *stop* something, combined with a claim to the exclusive right to coercive force, does seem to come close to complicity, but doesn't seem to be an absolutely open-and-shut case. Financing is another matter. I can't quite get my head around how Christians could remain loyal to that kind of a regime.

The Catholic Church has no doubt faced this problem elsewhere. I wonder how they handle it.


I don't know what the jurisprudence is on "fundamental rights" as described in an ordinary law to be "policy", but I don't see how it would somehow automatically elevate the bill over other bills passed by the same body to the extent of repealing them. Perhaps that *is* the private wish of some of FOCA's supporters - websites of those supporting FOCA do not take this position - but intent doesn't make any difference to the SC's legal interpretation of a bill unless it was the publicly-expressed intent of those involved in actually passing the bill.

I will ask my con law friend about the fundamental rights issue and see what she says.

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