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FOCA – Incredibly Broad?

The short answer is, “Yes.”

Ah, abortion, the nuclear option of topics. Debating gay rights is a cakewalk in comparison. It’s times like these that I’m thankful I’m male. It’s such a sticky topic that I’ll be shamefully honest: I don’t have a well formed opinion either way. Is the fetus a person, is it not a person, when is it a person, when is my hamburger gonna be done? So yeah, I take the easy route, and choose not to think about it. Let the women decide!

Anyway, my friend Brian wrote an anti-FOCA post on his Facebook. Brian is one of the few rational conservatives whom I deeply respect -i.e. he doesn’t make my eyebrows twitch and we can debate rationally and civilly without insults. So FOCA, the Freedom of Choice Act, what is it? There’s actually not too much information about it, except your typical super biased yay and nay sites. But it’s essentially legislation to formally “codify the Supreme Court’s 1973 decision in Roe v. Wade“, rights that have been trimmed during the Bush II era. Obama has vowed to sign it if it ever reaches his desk. So of course, you got the crazy conservative groups coming out of the woodwork claiming that FOCA will allow all hell to break loose: Christian hospitals will be forced to commit abortions, late-term abortions will be a dime a dozen, blah blah blah. In fact, here’s one alarmist claim verbatim:

“Pro-Abortion Lawmakers Propose “FOCA” to Invalidate All Limits on Abortion”

Is it true? I wanted to find out, but like I said, there isn’t that much information. The wiki doens’t help much, either. I did find the following, however, laws that have been in effect since the late 70’s:

(b) Prohibition of public officials and public authorities from imposition of certain requirements contrary to religious beliefs or moral convictions
The receipt of any grant, contract, loan, or loan guarantee under the Public Health Service Act [42 U.S.C. 201 et seq.], the Community Mental Health Centers Act [42 U.S.C. 2689 et seq.], or the Developmental Disabilities Services and Facilities Construction Act [42 U.S.C. 6000 et seq.] by any individual or entity does not authorize any court or any public official or other public authority to require—

(1) such individual to perform or assist in the performance of any sterilization procedure or abortion if his performance or assistance in the performance of such procedure or abortion would be contrary to his religious beliefs or moral convictions; or

(2) such entity to—

(A) make its facilities available for the performance of any sterilization procedure or abortion if the performance of such procedure or abortion in such facilities is prohibited by the entity on the basis of religious beliefs or moral convictions, or

(B) provide any personnel for the performance or assistance in the performance of any sterilization procedure or abortion if the performance or assistance in the performance of such procedures or abortion by such personnel would be contrary to the religious beliefs or moral convictions of such personnel.

In other words, hospitals that receive public funds cannot be compelled by the government to perform abortions. So no, it would appear that faith-based hospitals that receive Federal funding would not be forced to commit abortions. Scratch one against the conservatives, it would seem.

However, at first glance, there does appear to be a hole. Section C states:

(c) Discrimination prohibition
(1) No entity which receives a grant, contract, loan, or loan guarantee under the Public Health Service Act [42 U.S.C. 201 et seq.], the Community Mental Health Centers Act [42 U.S.C. 2689 et seq.], or the Developmental Disabilities Services and Facilities Construction Act [42 U.S.C. 6000 et seq.] after June 18, 1973, may—

(A) discriminate in the employment, promotion, or termination of employment of any physician or other health care personnel, or

(B) discriminate in the extension of staff or other privileges to any physician or other health care personnel, because he performed or assisted in the performance of a lawful sterilization procedure or abortion, because he refused to perform or assist in the performance of such a procedure or abortion on the grounds that his performance or assistance in the performance of the procedure or abortion would be contrary to his religious beliefs or moral convictions, or because of his religious beliefs or moral convictions respecting sterilization procedures or abortions.

In other words, while a religious hospital receiving Federal funding can’t be compelled to perform an abortion, they can’t purposely not hire personnel that would be willing to perform an abortion, because that would be discrimination. “Yes, this is a Christian hospital, and yes, our doctor is a LeVayan Satanist. He will perform your abortion.” Back in favor of the Religious Right?

Kinda, maybe. One more “however.” Back to Section (b)(2)(A) in the very beginning:

does not authorize any court or any public official or other public authority to require—

(2) such entity to—

(A) make its facilities available for the performance of any sterilization procedure or abortion if the performance of such procedure or abortion in such facilities is prohibited by the entity on the basis of religious beliefs or moral convictions, or

While they can’t discriminate against who they can hire, they don’t have to actually provide the facilities to perform an abortion. So the “offending” doctor would have to go to a different hospital. Religious conscience is mostly spared, other than the discomfort of having an “abortionist” as a coworker. Although I suspect the social dynamics at the workplace would cause someone like that to find employment elsewhere anyway. Not to mention that discrimination at the hiring phase is incredibly easy to get away with in the first place.

Back to FOCA. I’ve read the bill, S. 1173, and it doesn’t appear to affect the aforementioned laws; so no, passing FOCA should not force religious hospitals to perform abortions. However, the bill is definitely quite vague.

Here’s the meat of the bill:

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.

Pretty simple, right? The government can’t interfere with pro-choice, and if an individual is interfered with by a violation of FOCA, that individual can sue. It looks like it can co-exist with existing laws so far.

However, “viability” as defined by FOCA seems a bit broad:

(3) VIABILITY- The term `viability’ means that stage of pregnancy when, in the best medical judgment of the attending physician based on the particular medical facts of the case before the physician, there is a reasonable likelihood of the sustained survival of the fetus outside of the woman.

That’s not the worst demarcation point, but it seems to give the physician enormous leeway. While the the spirit of the bill seems to be against late-term or partial-birth abortion unless the woman’s life is in danger, the physician has almost no oversight. The limits as written aren’t really limits if the sole arbiter of said limits is the physician him- or herself. Is that OK? I’m not really sure. I would lean towards “no.” How many unethical doctors are out there? I doubt there’s much, if any, data on it. And with no oversight, that’s not going to change. Yet something like this would probably be incredibly difficult to oversee (but not impossible).

Reading further led me to Section 6:

SEC. 6. RETROACTIVE EFFECT.

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.

That section would appear to negate nigh everything. So was the claim that religious facilities could be forced to perform abortions not so alarmist after all? It appears possible. “Every” is a pretty encompassing word.

Then, after researching Roe vs Wade, FOCA actually seems to go beyond merely codifying it. Roe vs Wade ruled:

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician. Pp. 163, 164.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. Pp. 163, 164.

(c) For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. Pp. 163-164; 164-165.

That is similar to FOCA but different in important aspects. Basically, during the first trimester, abortion is restricted to the judgment of the attending physician, and not the government. But after the first trimester, the State can effect laws regulating abortion in various ways. FOCA on the other hand, would appear to eliminate that priviledge completely, as well as push back the first cut off from the end of the first trimester to “viability.”

While Roe vs Wade didn’t exactly iron out the definition of “viability” either (it did attempt to, typifying week 22 which is some point during trimester 2), it at least allowed States the flexibility of creating relevant laws as a stopgap solution. That can either work for or against pro-choice/pro-life. That’s one characteristic of the state system (depending on who you ask, that’s a good or a bad thing). With FOCA, it’s entirely in the hands of the physician.

So after reading all this, FOCA just seems a bit too undefined, a bit too unlimited. You know, for such a complicated issue, it’s amazing only less than half a page of text was dedicated to actual law-making. Here, I can actually summarize it in 3 lines:

  1. No government interference.
  2. Otherwise you can sue.
  3. All previous laws are superseded by this one.

Ullllltra combo! Hey, I can be a legislator, too! I would be very surprised if the Democrats allowed the bill, as it stands, to reach Obama’s desk. As it stands, the potential to eliminate religious exceptions and the seeming complete reliance upon perfect ethical physician behavior seems a bit…unrefined. But hey, people have been screaming for simplified laws, and here we are, we got a small, catch-all bill.

My head is starting to spin. I’m not a lawyer, so if i’ve made any errors, please correct me.


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One Response to “FOCA – Incredibly Broad?”

  1. Robert says:

    You’ve pretty much hit the nail on the head.

    This is only tangentially related, bu Roe was decided with the idea of State’s rights in mind (which is why the Supreme Court left much of the actual administering of Roe to States). FOCA, on the other hand, unifies all states under one regime. A major tread on State’s rights. While FOCA does roll back everything, all of this only works if the Supreme Court still interprets abortion as being a constitutional right (filed under “privacy”). If that changes, then all bets are off. Abortion regulation falls back to the states. FOCA becomes unconstitutional and the only way the Federal gov’t can regulate abortion is through the Commerce Clause.

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