Freedom Of Choice Act

[nemorathwald]

Barack Obama promised Planned Parenthood that the first thing he would do as President is sign the Freedom Of Choice Act. This was one of the reasons I voted for him. Essentially, FOCA will codify Roe vs. Wade into federal law. Abortion has been legal since before our generation existed, and I am comfortable knowing my mother had a choice in whether to bring me into existence. That is the one person in whose hands I would put that decision. I would like FOCA to be a definitive and unprecedented rejection of the Pro-Life movement by America.

I know that in reality, it will not reflect any such mandate. It will merely reflect the failure of the Pro-Life movement to surmount their burden of proof. They have never made a sufficient case for foetal personhood, reflected in the indecision of the vast majority of Americans on this issue. When the population regards the effects as intangible, they default to permissiveness. "Don't like abortion, don't have one" is the new climate in our culture since Roe vs. Wade, even though we would never say "Don't like slavery, don't own slaves". It may take another generation to shake our heads in wonder that we ever believed the material for a potential person is already a person. Only then will abortion rights be safe.

I am curious about the requirement, allegedly in FOCA, that all hospitals must offer abortions, or shut down. How true is this claim? Is it true that Catholic or other religiously-based hospitals will be included in this requirement? Do you think they will shut down, as some Cardinals have promised, or do you think they will have "that room in the back" and close their eyes to it?

Is it plausible or ridiculous for Pro-Lifers to claim that FOCA will force doctors to become abortionists against their will? How many branches of medicine require the student to learn how to perform an abortion? Is it true that "abortion providers would not have to be qualified with even a nursing degree", or would the opposite occur, in which it would raise the standard of institutional accreditation to perform the procedures?

How many medical professionals do you think would resign and leave the medical industry or go overseas, rather than work for a hospital that performs abortions? Not many, I postulate.

Comments

[loop-bell.livejournal.com]

Here's the actual legislation -- remarkably short and readable actually -- one version is in the House and the other in the Senate. I don't see any obvious differences
http://thomas.loc.gov/cgi-bin/query/z?c110:S.1173:
http://thomas.loc.gov/cgi-bin/query/z?c110:H.R.1964:

[loop-bell.livejournal.com]

Shoot -- Facebook killed the trailing colon. Not that a sane address should have one of those, but these do.

Try this and this.

[drkelso.livejournal.com]

foetal personhood - Are you saying that the pro-life movement hasn't surmounted the burden of proof that a fetus is "human" or "alive" or whatever from a scientific standpoint or a legal standpoint? I understand that legally they haven't been successful but I'm not so sure you could argue that from a scientific standpoint.

When would you say that the material for a potential person actually becomes a person? That seems to be the biggest argument in all of this that no one can seem to agree on.

[matt-arnold.livejournal.com]

My appendix is both human and alive. I think the material for a potential person actually becomes a person when the lights are on and there's somebody home, and there is viability outside the mother. Around the middle of the third trimester, there are the first detectable brainwaves, and because of that scientific evidence, I think at that time a fetus gains about as much personhood as a dog or chimp. It rapidly increases from there to the point of birth at nine months.

Even at nine months and viable biological independence, it does not have full rights-- merely the right to life. We don't grant full rights in this society until adulthood. It is a gradual slope.

It's true, there is little agreement on it, and that's the burden of proof the Pro-Lifers haven't surmounted. The burden does indeed lie with them. The Pro-Choicers have consistently acted like it doesn't exist, so they haven't driven home a Pro-Choice view of it.

[drkelso.livejournal.com]

In a similar way that you don't like religion dictating science, I don't like the law dictating science. On the flip side, advances in science should change the law.

So as the definition of viability changes as science and technology progress, so should the rights of a person to retain their life. I would argue that viability today is different than viability in 1973 simply because we understand the science of pregnancy better than we used to.

My personal minimum opinion of choice is that if a fetus is scientifically capable of viability outside the womb, then it should be afforded the basic right to life no matter where it is currently located geographically. And that definition should change as science reveals more about what we don't know.

[loop-bell.livejournal.com]

Having spent some more time today researching FOCA, I think I may be able to at least partially answer some of the questions you raised.

For reference, here is the "meat" of FOCA, from section 4b:
A government may not 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

Simply put, no law may prohibit or restrict abortion in any way. Period.

So, as for forcing doctors to perform abortions, yes it can. There is currently legislation that permits doctors to refuse to perform procedures on moral/ethical grounds. As that is clearly a law restricting the availability of abortions to women, it will be stricken by FOCA. And the "not even having a nursing degree" follows similarly. People without a degree or license are today prohibited for performing abortions by regulatory legislation. And again, it is legislation that interferes with the availability of abortions, and therefore would be overturned by FOCA. I fail to see any way that FOCA could raise the standard of accreditation for those performing abortions.

As a side note, other overturned legislation includes laws protecting women from unsafe clinics, laws requiring the consent of parents for a minor to get an abortion, and laws requiring that women be informed of the risks of having an abortion. (more risks, actually citing medical studies)

On the issue of forcing Catholic or other private hospitals, I don't quite understand how that would happen. These are private institutions and are generally able to restrict their services as their ethics and morals require. However, I am not a lawyer, and I have to depend on the opinions of those who are. One analsysis I have found by Michael Moses, a top attorney for the U.S. Conference of Catholic Bishops, adds that the language of FOCA is so far-reaching that it will remove any conscience clause measures from state laws that protect doctors, hospitals and medical professionals who don't want to be involved in abortions. [I mentioned this above.] Moses' reading of the proposed legislation is that if abortion is a fundamental right that can't ever be infringed, then every hospital and medical center must do abortions -- including Catholic and other religious or private hospitals that object to do them. (Quote from here, describing this analysis by Mr Moses.) I have not been able to find any interpretations to the contrary.

As you can probably see, I don't support FOCA -- and these are the reasons why. Hopefully this clears up some of your questions though.

[uplinktruck.livejournal.com]

The passage with the failure to perform club is in civil penalties:

SEC. 4. INTERFERENCE WITH REPRODUCTIVE HEALTH PROHIBITED.

(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.

(c) Civil Action- An individual aggrieved by a violation of this section may obtain appropriate relief (including relief against a government) in a civil action.

As it is written above, if a physician or facility refuses to perform an abortion on moral grounds that physician or facility will find themselves defending a legal action. Win or loose, that is an expensive proposition all the way around.

That leads me to wonder what a Christian or Muslim physician would do in that case. Think about this for a minute. Your religion says abortion is murder of an infant. But if you fail to deliver on request, you will have nothing left once the courts get done with you.

As much as I support a woman's freedom to choose her future, I strongly object to this language in the bill.

However, if passed I think the law stands very little chance of passing a constitutional challenge. Section six, the part about overriding state and local ordinances steps way over the line of the State's right to run their own show without federal interference.

It is poorly written with too many broad strokes. The same objective can be achieved without the heavy handed penalties regardless of religious or moral conviction.

[le-bebna-kamni.livejournal.com]

Please read the text of the law more carefully. It says that a government may not deny or prohibit a woman from having an abortion. There's nothing in the law about hospitals, doctors, friends and family members, or a long-term case of indecision and irresponsibility. Nor would such a law be likely to contain such a provision. The law is what it says it is: a legal codification of Roe v. Wade. Roe v. Wade is a prohibition against restricting rights, not a guarantee that services to enact such rights will be carried out.

If you'll recall, the outcome of Roe v. Wade was not suddenly to force all hospitals/doctor's offices to suddenly offer abortion services. However, what it did (in theory, at least -- in practice it didn't necessarily change things) is to allow doctors offices who wanted to do so to offer such services if they chose. Nor would it be reasonable (or feasible) to expect all clinics to offer abortion services. Religious issues aside, equipment and trained medical staff to provide abortions can potentially be expensive, just like any other medical procedure. Not all doctor's offices provide vasectomies, for example, and not just because of religious beliefs regarding the sacredness of sperm. (*cue music* ;P) You certainly wouldn't go to a pediatric office or an orthopedic surgeon's office for a vasectomy, nor will they be required to provide abortions any more than the hospitals who don't have heart surgeons on call are required to provide triple bipass surgeries.

What this legislation does say is that *government* can't pass laws that prohibit a clinic from having such services, if they so choose. It also says that the government -- local, state, and federal -- can't discriminate against clinics/hospitals that provide abortion services (which they currently do) by denying funding, imposing gag rules, or restricting the services provided based on things like income, number of children, or health of the mother.

Also, please bear in mind that the legislation goes both ways. A government on any level can never pass a law that says that a woman cannot bear a child, and that every woman who wants to carry a pregnancy full term has the right to do so and that the government cannot regulate her access to pre-natal care. So it doesn't matter whether you're a woman going to give birth to your 10th child, or a woman going to give birth to a child that may have fetal alcohol syndrome, you have every right to bear your child, and no governmental action can force you to not to.

Once again, the bill is about prohibiting legislation that restricts rights, not guaranteeing that every facility will provide the means to exercise said rights.

[uplinktruck.livejournal.com]

I did read it. In fact I just read it again. There is no question the above legislation will open the flood gates of litigation if is passed as written. If you don't believe that I recommend that you reread the section I quoted above.

Sec. 4 (c), "(c) Civil Action- An individual aggrieved by a violation of this section may obtain appropriate relief (including relief against a government) in a civil action." guarantees this. Only someone naive beyond belief could buy into your above assertion that this bill does not guarantee the compliance of any facility that offers in or out patient surgical services. Either that or they have to close down.

This is very much about religious choice. Were it not for the religious and moral issues people have with abortion, this thread would not be taking place. To try to sweep it aside with your argument on training and equipment is completely invalid.

Every surgical center that works on female plumbing is equipped to do a DNC. By default that would force them to do the job or be sued as this bill is written. Using your argument could force doctors to choose between doing pap smears and vaginal wart removal in the office or sending the patient to the hospital for the procedure.

If you still believe your own argument, you are going to need to point me to the words in the bill that support your case. If there is language in there that agrees with you, I missed it.

Don't get me wrong. I am in favor of a woman being able to abort in the first trimester without question. Government has no business telling anyone they have to violate the tenants of their religious beliefs about unborn children. As it is written now, the Freedom of Choice Act it is a prime example of bad law.

[le-bebna-kamni.livejournal.com]

And if you think the law steps over the line for states to "run their own show", you might want to re-read the introduction that gives a very explicit explanation of why abortion regulation affects interstate commerce. Whether you personally agree with the reasoning or not, lesser justifications of interstate commerce have been taken to court (and won).

Also, when it comes to the rights of citizens, the Federal government has the ultimate authority to enforce those rights. Whether you agree with something being a right or not, once the Federal government -- whether Congress or the Supreme Court -- determines something is a right, it trumps any laws that the states may have. Roe v. Wade established that at least in the U.S, choosing your own state of pregnancy (or lack thereof) is considered a right. So this legislation would trump any state laws, just as Roe v. Wade (technically) is supposed to trump state law.

[uplinktruck.livejournal.com]

There is a an enormous difference between allowing non-whites to sit at the lunch counter in Selma, AL and forcing a Catholic OB-GYN to perform abortions or be sued. Contrary to your apparent belief structure, the federal government is not all powerful when it comes to ramming policy down the state's throats.

The courts have consistently upheld this tenant when it does not conflict with constitutional law. The way the government gets around it is by bribing the states with federal money for things like highways, schools, parks etc. But when a line is drawn that is too much to swallow, the states can and do fight and win.

It will be an interesting legal case to watch if it comes to pass.

[charlie-ihsan.livejournal.com]

I imagine there would be an exemption for explicitly religious hospitals?

[(Anonymous)]

The legislation never mentions hospitals. It also never mentions religious-conscience exemptions. If a private hospital chooses not to accept government money, I'm not sure whether they would be sued for refusing to perform an abortion; but it's possible. Recently eHarmony was sued for refusing to accept gays, and the litigation forced them to create a gay dating service.

[le-bebna-kamni.livejournal.com]

The issue with eHarmony is slightly different than the issue with abortion. In the case of eHarmony, it could be argued that they were denying access to already existing services, based on the demographic of the people who wanted to use the service. This would be on par with a clinic that provides abortion services refusing to give abortions to women who had fewer than 4 children, for example -- and that is what the law is designed to protect against.

However, the law says nothing about requiring a clinic that does not already provide abortion services to do so -- just as all non-dating sites are not suddenly required to provide dating services to gays -- nor is any Supreme Court justice in the near future likely to rule that this is what the law means.