I'd like to think that Barack Obama will be a "great uniter," but when it comes to his abortion policies, I'm not so sure. Stephanie Cutter, chief spokesperson of Obama's transition team, confirmed that our next president will, as promised on the campaign trail, support the controversial Freedom of Choice Act. This legislation declares that a 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." It also says that federal and local governments can't "discriminate" against a woman's right to choose by, say, funding pregnancy or contraception coverage but not abortion. It was first introduced in Congress in 2007 but stands a much better chance of passing with a president who's willing to sign it into law.
Activists both for and against FOCA are already staking out their battle positions. The U.S. Conference of Catholic Bishops says the law, if passed, is likely to invalidate a range of state laws including: parental notification requirements, abortion clinic regulations (even those designed to make abortions safer for women), laws protecting the "conscience rights" of doctors and nurses who don't wish to participate in abortions—perhaps even abortion bans in Catholic hospitals. The organization says it could even nullify laws requiring that abortions be performed only by a licensed physician. "We're very concerned if this goes through," says Anthony Picarello, the conference's general counsel. "It should not be passed, period."
Of course, these folks will be thrilled if the Department of Health and Human Services issues a new "conscience rights" regulation, as planned this week, which would guarantee that medical providers can refuse to participate in anything they find morally objectionable, whether it's inserting an IUD or handing you a prescription for birth control pills. Women's health activists, like National Women's Law Center copresident Marcia Greenberger, are firmly against this regulation and firmly supportive of FOCA. "The act would simply ensure that Roe v. Wade protections remain in place," Greenberger says. "It isn't radical." She says it won't force doctors to perform abortions—a violation of their civil rights—but it also wouldn't force abortion providers like Planned Parenthood to hire doctors who refuse to participate in abortions, something outlined in the conscience rights regulation.
What impact will the law really have?
I posed this question to Yale Law School Prof. William Eskridge, an expert on constitutional law, who tells me he's a pro-choice, religious Presbyterian who used to teach at the Jesuit-run Georgetown Law School. While he certainly has his own biases (as do we all), I called on him to give me a balanced analysis of the new legislation.
The law won't force doctors or private hospitals to perform abortions, he says. Nor will it overturn state laws protecting a woman's health, such as clinic regulations that say only licensed doctors can perform abortions. The wording simply says that a government may not deny or interfere with a woman's right to choose... "It could, though, force a number of municipal hospitals, run by the state or city, to provide abortions where they now aren't," Eskridge says. This could impact a lot of public hospitals, considering that nearly 90 percent of U.S. counties currently have no abortion provider. Catholic hospitals might be affected in terms of public funding. "There's a lot of ambiguity in the legislation as to whether their funding will be cut off if they don't provide abortions, but," he adds, "I personally don't read it this way."
Women in the military might also have better access to abortions. The new law would ensure that if military hospitals provide family planning services and pregnancy care, they also must provide abortion services. Currently, soldiers have to go off-base to get an abortion, which is a huge problem for those serving overseas in places like Iraq and Afghanistan. Government health insurance, like Medicaid, would also have to cover pregnancy termination.
The thorniest issue in the proposed law is whether the right to an abortion applies to all pregnant females—including those as young as 11 or 12 as well as those who are over 18. The legislation refers to protecting the rights of a "woman," but neglects to define what that means. If "woman" is defined as any pregnant female then that will overturn state laws that require a parent to be notified if their minor child is having an abortion. If "woman" is defined as anyone over legal age then pregnant teenagers could be denied access to abortions. Eskridge says the ambiguity is intentional and frequently built into congressional legislation: "It's plausible deniability," he explains, where legislators can vote for something and then tell their constituents that they didn't know what the real impact would be. "In my opinion, the woman-ambiguity question will be resolved in state court battles," he adds, "where they'll look for how woman is used in common parlance in news articles like yours."
I, personally, only use the word when I'm referring to a female over 18; otherwise, I use "girl".
There's no question that abortion is a polarizing issue with strong views on both sides, but most Americans seem to fall somewhere in the middle. We support a woman's right to choose but would like to see far fewer abortions in this country. And only 30 percent of Americans want abortions to be legal under any circumstance. Where I think all of us can agree is that there needs to be fewer unplanned pregnancies in this country. I'm just hoping that the new president will pay attention to another campaign promise: To implement better programs to address this issue so women can avoid having to make the difficult choice.