Rights of Conscience: The Threat of the Freedom of Choice Act

I have been asked to comment on the Freedom of Choice Act, that would seek to impose a single federal standard on abortion regulations. I have not done so until now because I did not know enough about the details and wanted to wait until and unless it became a likely law.

I still don’t know much about the FOCA, but a columnist in Slate named Melinda Henneberger, discussing recent speeches by Catholic Hierarchs about an Obama Administration seeking to force Catholic hospitals to violate Catholic moral teaching, worries that passing the FOCA would blow up in all of our faces. From the column:

And the most ludicrous line out of them [the speeches], surely, was about how, under Obama, Catholic hospitals that provide obstetric and gynecological services might soon be forced to perform abortions or close their doors. Auxiliary Bishop Thomas Paprocki of Chicago warned of “devastating consequences” to the health care system, insisting Obama could force the closure of all Catholic hospitals in the country. That’s a third of all hospitals, providing care in many neighborhoods that are not exactly otherwise overprovided for. It couldn’t happen, could it?

You wouldn’t think so. Only, I am increasingly convinced that it could. If the Freedom of Choice Act passes Congress, and that’s a big if, Obama has promised to sign it the second it hits his desk...Though it’s often referred to as a mere codification of Roe, FOCA, as currently drafted, actually goes well beyond that: According to the Senate sponsor of the bill, Barbara Boxer, in a statement on her Web site, FOCA would nullify all existing laws and regulations that limit abortion in any way, up to the time of fetal viability. Laws requiring parental notification and informed consent would be tossed out. While there is strenuous debate among legal experts on the matter, many believe the act would invalidate the freedom-of-conscience laws on the books in 46 states. These are the laws that allow Catholic hospitals and health providers that receive public funds through Medicaid and Medicare to opt out of performing abortions. Without public funds, these health centers couldn’t stay open; if forced to do abortions, they would sooner close their doors. Even the prospect of selling the institutions to other providers wouldn’t be an option, the bishops have said, because that would constitute “material cooperation with an intrinsic evil.”

Whether that would happen, of course, would depend on whether the administrators of Catholic hospitals would truly have the courage of their convictions, or whether they would be swayed by counter arguments that the harm of going out of business would be greater than acquiescing to the law. Frankly, I think that the emphasis in Catholocism on social justice is so strong, that many Catholic hospital administrators would find ways around the problem, with a wink and a nod from the government.

But surely some institutions would close their doors. Thus, I think Henneberger is right: Whatever one thinks about abortion rights, FOCA is certainly a bad idea merely from a practical sense.

But that might not dissuade the new Democratic majorities from passing it. I believe there is a drive gaining energy within some ideological quarters to force people of certain moral persuasions to either be complicit in what they perceive to be a culture of death or force them out of health care altogether—as we have seen already in Australia on abortion and in California regarding euthanasia-related proposals.

Then there is the foolishness of attempting to shut down democratic discourse about profoundly morally contentious issues, which never works—as Dred Scott, and Roe v Wade clearly demonstrated. If President Elect Obama truly wants to “bring us together,” the FOCA is exactly the wrong way to go about it. It would cause an explosion of dissent.