A close look at FOCA
“In November 2008,” says the USCCB “Pro-Life Activities” website, “the full body of bishops voted unanimously to mobilize the resources of the USCCB, dioceses and the entire Catholic community to:
- retain current pro-life laws and policies, and
- oppose the federal funding and promotion of abortion, including the so-called ‘Freedom of Choice Act’ (FOCA) or any similar pro-abortion measure.”
This initiative is called the “National Pro-Life Postcard Campaign to Congress” — but the title bar of the browser calls it the “National ‘Fight FOCA’ Postcard Campaign to Congress.” FOCA is the rallying cry, and many Catholics who hardly know what FOCA is know they’re supposed to be praying that it fails.
Today is an excellent day to join others in prayer for the protection of human life. But is FOCA as much of a threat as its most vocal opponents — and supporters — suggest? In the forthcoming issue of Commonweal, Cathleen Kaveny takes a close look at the bill’s text and the legal circumstances that surround it. You can read the article online now.
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In his Inaugural address, President Obama said: “For as much as government can do, and must do, it is ultimately the faith and determination of the American people upon which this nation relies. …It is the firefighter’s courage to storm a stairway filled with smoke, but also a parent’s willingness to nurture a child that finally decides our fate.” He also said, “What is required of us now is a new era of responsibility — a recognition on the part of every American that we have duties to ourselves, our nation and the world; duties that we do not grudgingly accept, but rather seize gladly, firm in the knowledge that there is nothing so satisfying to the spirit, so defining of our character than giving our all to a difficult task.” So, today, I am praying that — with God’s grace and with the help of the Church — more expectant parents will find that courage and seize that responsibility.
Regarding FOCA, one thing I know for certain is True, God is not in the details.
The law is in the details, though.
Let me be clear. I think it is a Bad Law (title of the article). It is bad for a number of reasons, including the difficulty of figuring out what it would do.
Cathleen, thank you for the analysis and the article, and Mollie, thank you for making it available on-line.
FWIW – our parish is hosting a parish cluster pro-life mass this evening (the parishes involved even bought a large ad in the local newspaper to promote it), and the USCCB anti-FOCA postcard campaign will be going on in the back of the church after mass. As a monster to mobilize against, FOCA seems to be fairly compelling. But I’d hate to see all this energy expended on something that may never come to pass, when it seems that real, concrete things are actually happening (e.g. repeal of Mexico City policy).
Wooops. Bad bill. It’s not a law.
Cathleen Kaveny’s article is very informative, and further reinforces my belief that not only will it not be passed, but that it wasn’t even written to become law.
As I have observed before, there has been no sign at all from the incoming administration that FOCA is of any interest whatsoever, and forthright declarations about the administration’s support of stem-cell research. However, the Catholic pro-life campaign seems to be all about “fighting FOCA.” It’s very strange.
For the record, the headline was ours and not (I think) Cathy’s. We meant it speculatively, I suppose — it would be a bad law, and not simply in a moral sense.
Jim — you’re welcome, but I’m just the messenger! We all thought it was a good idea to post this one a little early, though, given the slowness of the mail and the (apparent) urgency of the moment.
First, thanks to Cathy for an incisive piece on this.
The NPR report this morning on the Roe/Wade anniversary ended with a vital point Cathy touched on -finding common ground.
The NPR reporter sounded very unhopeful, but, as NCR reports today there is a broader pro-life movement happening, and…
It is happening with those who want to come at the issue through reducing abortions and emphasizing maternal health/support. Sen, Casey, if I read reports right, will introduce the Supporting Pregnant Women’s Act in the Senate perhaps today.
Strikes me as clear that in some qurters the effectiveness of the pro-life movement has moved to the forefront and a broader approach is at hand.
If the key to advancing the message is to utilize a more “common ground” approach, the ultimate goal may begin to become more accheivable.
I like the title–and I never give titles to my pieces, because I’m so bad at that part. That’s one of the blessings of having editors, IMHO.
Very interesting analysis. My only critique is it ignored the potentially sweeping changes in the composition of the Court over the next eight years. I think it is fairly certain the majority of the Court will look much more like the dissenters in both the Morrison and Lopez cases mentioned (Justices Souter, Stevens, Ginsburg, and Breyer), for example, than that of the current Court. I my view, the pro forma look of the Court when potential challenges to the law would make it there would be the real key.
I also do not know if I agree with the following premise: “With one of their own in the White House, prochoice activists should have no need to raise it. ” That seems a bit too cynical. I find it hard to believe prochoice activists contributed tens of millions of dollars to get someone elected to just maintain the status quo for eight years and roll the dice in 2016. They have an historic moment with absolute control of two of the three branches of federal government and, by all reasonable estimates, all three branches by 2016 – why would they pass-up that opportunity?
“As I have observed before, there has been no sign at all from the incoming administration that FOCA is of any interest whatsoever, and forthright declarations about the administration’s support of stem-cell research. However, the Catholic pro-life campaign seems to be all about “fighting FOCA.” It’s very strange.”
Aren’t the Mexico City and ESCR issues executive orders whereas FOCA is a legislative matter, where the people theoretically could have some influence? The President has been pretty forthright about his support of ESCR, death penalty, etc so I would bet the time is perhaps better spend on influencing members of Congress. I don’t know, but I think that may be a reason.
Interesting article, although this paragraph seemed clearly wrong:
On the vexing issue of abortion funding, one can read the nondiscrimination provision (4)(b)(2) as mandating abortion funding. But does this reading make the most sense of the text as a whole?
Not only can one read FOCA as mandating abortion funding, it’s the most obvious reading, and one that would almost certainly be adopted by courts. FOCA says that governments may not discriminate against abortion in the “provision of benefits.” Despite the article’s straining on this point, it’s hard to read such language as referring to anything other than paying for abortion. How, after all, would a government discriminate against abortion in the “provision of benefits” in some way that didn’t involve the question of whether to pay for abortion or not? And if not providing the “benefit” of paying for abortion is “discrimination,” then only one remedy suggests itself: payment. That’s certainly what supporters of FOCA think would happen (see, e.g., <a href=”http://www.now.org/issues/abortion/070430foca.html).
The Boerne analysis seemed right on point, however.
Barack Obama is going to fill the United States Courts of Appeals with judges so radically pro-abortion that they think the Constitution alone, without FOCA, requires all the horribles that FOCA’s opponents and sponsors agree it was introduced to do: mandate tax funding of abortion, prohibit parental involvement and informed consent, strike down the partial birth abortion ban, lust to name a few items. The only people who are downplaying FOCA’s effects are the same people who have publicly advocated that Barack Obama, who is radical in the extreme on every abortion issue and policy matter, is really a pro-life abortion-reducer with an undeserved image–an image they also think is undeserved for the top policy priority in Obama’s heart of hearts–FOCA.
“the top policy priority in Obama’s heart of hearts–FOCA.”
Catholic Catechism section 2483 Lying is the most direct offense against the truth. To lie is to speak or act against the truth in order to lead someone into error. By injuring man’s relation to truth and to his neighbor, a lie offends against the fundamental relation of man and of his word to the Lord.
Have you no shame, sir?
A very thorough look, but I for one am not willing to conclude that FOCA is as potentially devoid of content as this.
Clearly those who support this bill think it will have all the ill effects (from the prolife perspective) that are predicted. Ought we not to take them at their word, or roll the dice that courts will interpret ambiguous language in a way that makes the statute meaningless?
It might be that the bishops have learned their lesson from other such unlikely, and far fetched predicitions. Look at what politicians and lawyers were saying about abortion in the late 60′ and early 70′s. The idea that the right to privacy would lead to legalized abortion on demand was considered alarmist. This was back, of course, when there were still pro-life liberals. The direction of the laws on gay rights laws in Massachusetts the 80′s and 90′s was criticized by “alarmists” as paving the way for same sex marriage and infinging on religious conscience – welcome to 2009.
If these alarmists didn’t have the unfortunate habit of being right so often, I might be willing to buy the “not-to-worry” attitude. As they say, “Fool me once . . .
First, I read through most of the “BAD LAW” article and wanted to post a question in relation to that article, but was unable to. So I pose it here and apologize if it’s been answered elsewhere.
I’ve encountered arguments/concerns about FOCA and more generally abortion law concerning the right to abortion based on the “health of the mother” 4(C) in FOCA. The concern has been that the health language can be interpretted broadly to include mental anguish as well as the daunting task of bearing and raising a child. (Perhaps akin to Obama’s statements of being “punished with a child” for a mistake.)
What provisions are there to calm this concern which seems to fuel the notion that this is about “abortion on demand” because it seems the back and forth is that one side sees it that way and the other is replying we don’t want to force people to have their babies.