Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, October 16, 2008

A Focus on FOCA (aka the “Freedom of Choice Act”)

Over the past several days we, here at Mirror of Justice, have seen a robust exchange of commentaries on the so-called “Freedom of Choice Act” which has been placed centrally into the upcoming election on November 4. In the current 110th Congress, the Senate and House have identical bills designed to codify the principles contained in the proposed Act. The Senate version bears the designation S.1173 [HERE], and the House version has the designation H.R.1964 [HERE]. For voters who wish to be informed about where their respective Federal legislators stand, it would be useful to see who has sponsored/cosponsored these bills by examining the bills themselves and also checking senators’ and representatives’ websites to see if they have become subsequent co-sponsors.

In any event, I thought it would be useful to run through these bills to offer some insight to followers of MOJ about what the proposed legislation would actually do if the bills become law—a law that would, in the final analysis, codify “an exercise of raw judicial power”, i.e., Roe v. Wade.

The versions of the bill begin with certain interesting “findings.” Included amongst them are the “core principles” of liberty—perhaps as defined by Planned Parenthood v. Casey, i.e., “the right to define one’s own concept of existence, of meaning of the universe, and the mystery of human life”; personal privacy—perhaps as defined by Roe v. Wade, i.e., the “right of personal privacy includes the abortion decision”; and, equality—perhaps as defined by Lawrence v. Texas, i.e., the “[e]quality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty” [as defined by Casey]. The bills specify that individuals must be “free to make their most intimate decisions without governmental interference and discrimination” even if those “intimate decisions” destroy another human life. I am sure this would give comfort to those in organized crime who might, from time to time, find it appropriate to destroy another human life as long as they can argue that their “choice” is an “intimate decision.”

While the findings of the bills address “the most private and difficult decisions” regarding whether “to begin, prevent, continue, or terminate a pregnancy” (I am not aware of any legislation or court decision that actually addresses privacy and difficulty regarding the beginning of a pregnancy), we are informed that such decisions are best made by the woman affected. The fact that there is some man “out there” who also has a role in these matters goes unmentioned, and this failure to mention is conspicuous by its absence.

The “findings” continue with a litany of Supreme Court privacy decisions including Griswold (making contraception available to married couples—no mention is made of Baird v. Eisentstadt which expanded Griswold to anyone regardless of marital status); Roe v. Wade; and Doe v. Bolton. These decisions were designed to augment the “privacy” argument, but the “privacy” argument has failed time after time in more recent litigation addressing the regulation of abortion. Since the privacy argument has failed, abortion advocates have had to recast their arguments on other grounds such as “equality.” But, in doing so, they always forget that the equality argument can and must also be applied to the human life destined to be destroyed. So, the equality argument that now undergirds the campaign for abortion also rests on unstable foundations.

Another curious finding made by the authors of the bills is that Roe “carefully balances the rights of women to make important reproductive decisions with the State’s interest in potential life.” The bills do no such thing for a number of reasons that include Justice White’s remark that Roe was nothing more than “an exercise in raw judicial power” (no “careful balancing” there). Moreover, reliance on the expended thesis that the embryo/fetus is nothing other than “potential life” is a contradiction of medical science: there is human life present, and it is being destroyed—there is nothing “potential” about it, for it is rather than might be. Everyone who reads this posting and everyone who does not was precisely in this same position that the bills’ drafters insist is “potential.” From a pure medical and scientific point, the sponsors and cosponsors are wrong, so, therefore, their finding on this front is wrong. And, it is unwise to base important legislation on wrong “findings.”

A further curious finding offered by the bills’ sponsors and cosponsors is that the judicial decisions that are cited in their proposals have protected the lives of women in the US; this assertion, moreover, is “substantiated” by their additional curious claim that “an estimated 1,200,000 women each year were forced to resort to illegal abortions…” [Italics mine] I wonder who did the “forcing”, but this is not addressed in the “findings.” This unsubstantiated claim about numerical instances of “forced illegal abortions” is quickly followed by another “finding” that an estimated “thousands” of women “forced” into these abortions died as a result. Since we have been told that 1.2 million women were “forced” into illegal abortions annually, it would be most helpful to know just how many “thousands” died. Was it two thousand? Ten Thousand? One hundred thousand? Nine hundred thousand? The sponsors and cosponsors are reticent in their detail with regard to these important facts that have a crucial bearing on their “findings.” In this context, we are given a further “finding” from the World Health Organization that amongst the approximately 600,000 pregnancy-related deaths reported annually, 80,000 are associated with “unsafe abortions.” However, no information is disclosed about how many maternal deaths are associated with “safe abortions” or “legal abortions.” I am not a mathematician, but when I subtract 80,000 from 600,000, I arrive at the number: 520,000—a rather large number that escapes the critical scrutiny if not of the WHO, then the bills’ sponsors and cosponsors.

Further findings include commentary on various state and Federal efforts to regulate the expansive effects of Roe. The legitimate exercise of state sovereignty and judicial scrutiny cited by the sponsors and cosponsors is categorized as direct challenges to Roe and the implication follows that such regulation is a bad or misguided exercise of democracy. Thus, the sponsors and cosponsors are implying that democracy ought not to challenge a “raw exercise of judicial power.” I would have thought otherwise, but in the estimation of the sponsors and cosponsors, I and others must be terribly wrong. The sponsors and cosponsors are particularly harsh in their reference to Gonzales v. Carhart, and they cite Justice Ginsburg’s dissent that the majority opinion is “alarming.” Yet they fail to mention in their findings the accurate description of the barbaric destruction of a baby in the process of delivery that the majority opinion described without embellishment and only clinical accuracy. I guess any abortion must, in the estimation of the sponsors and cosponsors, be a good abortion consistent with the principles of liberty, personal privacy, and equality.

While the sponsors and cosponsors offer other interesting “findings,” one of the most startling is their back-fired claim that growing, incremental restrictions on “the full range of reproductive services [that] endanger women’s health and lives” have really not had an impact on the ability to get an abortion. In spite of their intended claim that 87 percent of the counties in the United States have no abortion provider, we, as Americans, are still capable of dispatching as medical waste over one million children who are victimized by abortion every year.

The drafting of the bills is founded in large part on the Commerce Clause authority of Congress. But let us consider how the sponsors and cosponsors discuss “commerce” in the context of this legislative proposal. It is “commerce” that women not only cross state lines to destroy their children, but it is also “commerce” that they are forced to cross state lines where they cannot destroy their children in certain jurisdictions. It is also “commerce” that abortion providers are “commercial actors” who are in the business of making purchases and generating revenues as the result of the destruction of new human life. And, of course, it is “commerce” that medical personnel cross state lines in order to exercise some role in the destruction of young Americans. I would be reluctant to rely on the “commerce” powers of the Congress to write such legislation, but, I guess that’s why I am not one of the sponsors or cosponsors.

In the definitions section of the bills, the explanation of the term “viability” of the child is, at best, problematic, and, at worst, nonsensical. The definition proposed in the bills enables the abortion provider alone to determine “viability.” This delegation of life-determining authority ignores the present day reality of medical science, but it is more akin to the concentration camp commandant who determined which disembarking passengers went to the factors and which went to the death chambers. If present-day medical science can make a blastocyst “viable,” it certainly can do a lot for new human life that has gone beyond that stage. It would seem that the sponsors and cosponsors have regrettably relied on outmoded medical information regarding how to ascertain the viability of young human life.

But the bills do not stop here. It becomes clear in the section addressing “Interference With Reproductive Health Prohibited,” that medical personnel, hospitals, or anyone else who “interferes” with the “fundamental right” to destroy a new human is subject to the law through civil actions. Unspoken in the bills at this stage is whether those who interfere with the “fundamental rights” the legislation would recognize might also be subjected to criminal sanctions as well. I suppose that, with the passage of this legislation, it would be a fairly easy task to amend Title 18 of the United States Code in order to address further implementation of the Freedom of Choice Act.

A final point to mention at this stage is that the Freedom of Choice Act would, if passed in its current form, have retroactive effect on any law (legislative or judicial) or regulation that would be considered to be in conflict with the provisions of the Act. In essence, this would mean that any current regulation of abortion, regardless of its justifications, would be in peril.

I encourage the MOJ community to read the “Freedom of Choice Act” bills and to reflect on their impacts, especially as we get closer to November 4.

RJA sj


Araujo, Robert | Permalink

TrackBack URL for this entry:


Listed below are links to weblogs that reference A Focus on FOCA (aka the “Freedom of Choice Act”) :