What Would FOCA Really Do?

Emily Douglas

Would the Freedom of Choice Act force Catholic hospitals to perform abortions, as Melinda Hennenberger suggests? Unequivocally no.

Melinda Hennenberger has a
few strong words for the President-Elect.  Sign the Freedom of
Choice Act (which, any reproductive health advocate could tell you,
Congress is a long way away from passing), and Barack Obama will be
responsible for hobbling our entire, already-compromised health care
system. Why? According to Hennenberger, FOCA would require Catholic
hospitals to perform abortions, and the church hierarchy would rather
"turn off the lights" than provide comprehensive reproductive health
care. 

FOCA targets state laws that
limit abortion access, yes.  But FOCA would not have the conscience
clause repercussions that Hennenberger suggests it might. 

Hennenberger writes, "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.’"

Would FOCA do as Hennenberger
says – force Catholic hospitals to perform abortions? 

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Unequivocally no, says Jill
Morrison, senior counsel at the National Women’s Law Center. Federal conscience
clause law
, such as the Church Amendment, states
that simply receiving public funding does not turn a hospital into a
"state actor," Morrison explains.  "FOCA must be read consistently
with existing federal law, unless the new law explicitly provides that
it is intended to repeal existing law." 

Morrison adds, "A hospital
is not a state actor, and cannot be magically transformed into one due
to its getting Federal funding, as set forth in the Church Amendment." 

Hennenberger goes on to defend the Department of Health and Human Services’s proposed new, expanded provider conscience regulations that would allow providers to refuse to refer women
for critical medical care – like abortion in the case of life-threatening
pregnancy, or emergency contraception after sexual assault – that
a provider may opt out of providing him or herself.

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