The Shotgun Blog
« US bailouts now more than all major historic government expenditures combined, including WWII. Is inflation far behind? | Main | Fine living in Western Canada: hunting, good music and a nice cabernet sauvignon »
Tuesday, November 25, 2008
Will the Democrats force Catholic hospitals to provide abortions?
Melinda Henneberger has a surprisingly balanced article in Slate this week on FOCA, the Freedom of Choice Act.
The issue: While campaigning, Obama promised pro-choicers that he would sign FOCA ("That's the first thing I'd do," he said.) According to its supporters, FOCA would merely codify Roe v. Wade. However, even Nancy Keegan of NARAL admits that it would, if passed, effectively overturn the federal ban on partial-birth abortions.
Since the U.S. Supreme Court has already upheld the constitutionality of that ban, that would be a major change -- one I would be hesitant to describe as "mere codification" of Roe.
In addition, according to some, FOCA would also force hospitals receiving public funds (that would be pretty much all of them) to perform abortions. That's Benneberger's concern, too.
Here's the relevant text from the proposed bill:
First, the act recognizes that women have an absolute right to abortion before fetal viability.
A government may not deny or interfere with a woman's right to choose...to terminate a pregnancy prior to viability or to terminate a pregnancy after viability where termination is necessary to protect the life or health of the woman.
Then the act prohibits governments from "discriminat[ing] against the exercise of" these rights "in the regulation or provision of benefits, facilities, services, or information."
So FOCA prohibits governments from discriminating, right? Well, according to the definition set forth in the bill:
The term `government' includes a branch, department, agency, instrumentality, or official (or other individual acting under color of law) of the United States, a State, or a subdivision of a State.
I believe it is this somewhat broad definition of "government" that has raised concerns. In addition, when explaining the constitutionality of the proposed legislation, the authors of FOCA specifically refer to the powers Congress has under the Commerce Clause:
Federal protection of a woman's right to choose to prevent or terminate a pregnancy falls within this affirmative power of Congress, in part, because...reproductive health clinics are commercial actors that regularly purchase medicine, medical equipment, and other necessary supplies from out-of-State suppliers; and reproductive health clinics employ doctors, nurses, and other personnel who travel across State lines in order to provide reproductive health services to patients.
As some may recall, business regulation is often justified -- erroneously, most of the time -- under the Commerce Clause. But the argument for these regulations is that since "commercial actors regularly purchase supplies, etc. from out-of-state", the federal government can therefore impose regulations on their businesses.
These two aspects of the proposed legislation, taken together, are worrisome. Hospitals receive public funds, if only from Medicare, and there are some Democrats who would undoubtedly press the case that hospitals should be subject to additional federal regulation under the Commerce Clause. The way FOCA is written, there is nothing unreasonable about the worry that it would force all hospitals to provide abortion services.
Except Catholic hospitals would sooner close their doors than participate in the provision of abortion. As is their right; even their duty, perhaps.
Thus, this is an issue both pro-choice libertarians and pro-life conservatives can unite behind. Even pro-choice people should be wary: after all, if the Catholic hospitals close their doors, who will pick up the slack?
Posted by Terrence Watson on November 25, 2008 in Current Affairs | Permalink
TrackBack
TrackBack URL for this entry:
https://www.typepad.com/services/trackback/6a00d834515b5d69e20105361a26ec970b
Listed below are links to weblogs that reference Will the Democrats force Catholic hospitals to provide abortions?:
Comments
i doubt that will happen, plus i think it would be unfair to force them to do something they are against. We might as well have a dictatorship government if they can start telling people and businesses what they can and cant do
Posted by: intra | 2008-11-25 3:46:49 PM
Terrence,
You're being paranoid and alarmist. There is nothing in the passages you quoted to suggest that Catholic hospitals could be forced to perform abortions. A Catholic hospital is not a branch of the United States, a State, or a subdivision of a State. It is not a department of the United States, a State, or a subdivision of a State. It is not an agency of the United States, a State, or a subdivision of a State. It is not an instrumentality of the United States, a State, or a subdivision of a State. It is not an official (or other individual acting under color of law) of the United States, a State, or a subdivision of a State.
Furthermore, there has never been any serious suggestion by anyone that Catholic hospitals should be forced to perform abortions. Those who want to protect a woman's access to abortions are being smeared by such suggestions.
Posted by: Fact Check | 2008-11-25 4:29:21 PM
Don't think we need to worry about Catholic Hospitals in the US being forced to perform abortions. For that matter, even having a law suit against them when they refuse.
In Canada it's a different story. We have Trudeau's Charter which in a Court challenge could come down on the side of the person demanding an abortion as a right. We really have no concept of how intrusive the Charter is. Freedoms are selective when the courts get involved.
Posted by: Liz J | 2008-11-25 5:05:26 PM
Fact Check,
We both know schools that receive federal funding are subject to federal regulations.
We both know the Commerce Clause is often the justification when the federal government imposes regulations on various non-governmental institutions.
The proposed legislation makes use of the Commerce Clause to justify the use of federal power. It also mentions the 14th Amendment. If FOCA was only about limiting the authority of a particular state to regulate abortion, it would have had the following form:
1. Abortion before the fetus is viable is a right.
2. The 14th Amendment gives the federal government the power to ensure that states respect that right.
3. Etc.
Instead, it looks like this:
1. Abortion before the fetus is viable is a right.
2. The 14th Amendment gives the federal government the power to ensure state governments respect that right.
3. The Commerce Clause gives the federal government the power to ensure that non-state actors also respect that right.
Let me put it this way: if the aim was to justify federal power over the states with regard to abortion, the authors of the legislation only needed to refer to the 14th Amendment.
So why make use of the Commerce Clause at all? My worries would go away if someone could explain that to me.
Obviously, no SANE politician is going to go through with forcing Catholic hospitals to provide abortions. But if FOCA even makes it a possibility, that's a problem. AND it belies the view that FOCA is merely a codification of Roe.
Posted by: Terrence Watson | 2008-11-25 11:06:57 PM
Terrence,
IANAL and IANAAmerican, but here is what I do know:
(1) You say "The Commerce Clause gives the federal government the power to ensure that non-state actors also respect that right." Well, if that's true, it's not what is said in the passage you quoted. The commerce clause reference seems necessary to assert that the federal government has jurisdiction to tell public hospitals that might only be directly under state or local authority that they, too are covered by FOCA. Without reference to the Commerce Clause the federal governement would have no jurisdiction to force them to provide abortion procedures.
(2) As I said before, there is not now nor has there ever been any significant constituency that has wanted to force Catholic hospitals to provide abortions. Just as in Canada there was a great deal of noise made by alarmist opponents to same-sex marriage that the Catholic Church would be forced to perform such marriages, there has not ever been any push by anyone to make that the case. Canada has successfully guaranteed the right of same-sex couples to get married and not forced Catholic Churches to marry them. The idea that FOCA is more sinister is either senseless paranoia or intentionally manufactured alarmism to oppose women's access to abortions.
(3) Suppose you are right. Suppose that there are some sinister fringe proponents of abortion who are trying to pull a fast one that then will allow them to force Catholic Churches to perform abortions in sacred ceremonies on their altars, or whatever. The first day that they try to make this happen the outcry and backlash will be HUGE. And it won't just come from Catholics, other religious denominations, and other pro-lifers. As I said at least twice already, there are lots and lots and lots and LOTS of pro-choicers who also respect private religious organizations right not to be involved, just as the pro-same-sex marriage lobby respects their right not to perform weddings. So even if your delusion becomes reality, it won't. The public would never allow it.
Posted by: Fact Check | 2008-11-26 7:45:30 AM
FC,
Sorry, just prior to the last thing I quoted, the act cites the actual constitutional provisions they're drawing on.
They are Article 1, Section 8 (which includes the commerce clause) and the 14th Amendment.
The reason I inferred the commerce clause was what they meant was because of the reference to the role health clinics play in interstate trade (that's mainly the passage I quoted.)
Anyway, my point wasn't so much that there is an active group out there just waiting to force Catholic hospitals to perform abortions (although I'll say I've met lefties who would.) My point was that, if, for whatever reason, FOCA is so badly written that it even opens the door to the coercion of Catholic hospitals, then it is not a mere codification of Roe (which does not have that implication in any way, shape, or form.)
And it should also lead us to take a harder look at FOCA's most vocal proponents. That's all.
Best,
Terrence
Posted by: Terrence Watson | 2008-11-26 12:24:04 PM
On the medical subject it's interesting to see that the Carleton University students' union has dropped a cystic fibrosis charity as a beneficiary of it's annual medical research fundraiser. The students' union has determined that cystic fibrosis is not "inclusive" enough as it seems that most people afflicted with it are white males. I guess if more negroes got the disease they wouldn't have dropped it. In the future the Carleton University students' union should include research into Zebulon Punkosis, the homicidal hatred of whites.
http://www.nationalpost.com/news/story.html?id=996581
Posted by: The Stig | 2008-11-26 12:36:07 PM
The comments to this entry are closed.