This article first appeared in the St. Louis Beacon, March 10, 2009 - The Freedom of Choice bill, which would protect the "fundamental right" of a woman to have an abortion, would not force Catholic hospitals to perform abortions, a St. Louis legal expert says. Recently, some Catholic bishops have claimed that the bill could force Catholics to close their hospitals rather than perform abortions.
Susan Appleton, a Washington University law professor and expert on family law, said in an interview, "I just didn't read anything on the face of this bill as compelling Catholic hospitals to perform abortions."
No bill has been introduced yet in Congress. When the last version of the "FOCA" bill was introduced during the last Congress -- and defeated -- it provided that the government could not "discriminate" against a woman's right to an abortion. That ban on discrimination applies only to the government.
"Under the definition of what constitutes a government instrumentality," Appleton said, "I don't think that Catholic hospitals would qualify as one of the entities that the law is targeting.
"I think it is a scare tactic because I don't think there is necessarily a cause-and-effect relationship between the Freedom of Choice Act and Catholic hospitals having to perform abortions."
The bill, as it was considered in the last Congress, would write Roe v. Wade -- the 1973 abortion decision -- into federal law. The bill stated: "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." Any government infringement on that right or discrimination against it would violate the law.
Proponents argue that the bill is needed because many state regulations make it hard for women to obtain an abortion. When the Supreme Court reaffirmed constitutional protection for the abortion right in 1992 in Planned Parenthood v. Casey, it downgraded the amount of constitutional protection it afforded. The abortion right recognized in Casey was something less than the "fundamental right" recognized by Roe. That opened the door to a host of new state laws restricting abortion -- laws that would be wiped off the books by FOCA.
The claim about forcing Catholic hospitals to perform abortions arose last fall when auxiliary Bishop Thomas Paprocki of Chicago spoke at the Baltimore meeting of Catholic Bishops. The National Catholic Reporter quoted Bishop Paprocki saying that the law "could mean discontinuing obstetrics in our hospitals, and we may need to consider taking the drastic step of closing our Catholic hospitals entirely. It would not be sufficient to withdraw our sponsorship or to sell them to someone who would perform abortions. That would be a morally unacceptable cooperation in evil."
The bishops followed up in January with a big postcard campaign to Congress opposing passage of the Freedom of Choice Act.
The hospital closure claim received renewed attention last week with a front page story in the Post-Dispatch on the threat by the bishops "to shutter the country's 624 Catholic hospitals -- including 11 in the Archdiocese of St. Louis -- rather than comply." The Post-Dispatch story reverberated around the Internet where it was cited by about a dozen anti-abortion websites as proof that the FOCA bill threatened Catholic hospitals.
Not all Catholic officials believe that FOCA poses a threat to Catholic hospitals. In late January, the Catholic News Service issued a news release denying that the bill would force Catholic hospitals to close. "Internet rumors to the contrary, no Catholic hospital in the United States is in danger of closing because of the Freedom of Choice Act," the release said.
Bishop Robert N. Lynch, a trustee of the Catholic Health Association, was quoted saying, "There is no plan to shut down any hospital if it passes." The release also quoted Sister Carol Keehan, a Daughter of Charity who is CHA chief executive, as "equally sure that FOCA poses no threat to Catholic hospitals or to the conscience rights of those who work there."
Sister Keehan pointed out that a new bill had not yet been introduced into Congress and predicted that the bill would fail, as it has in the past. In a statement, Sister Keehan said, "As for the impact on Catholic hospitals, we expect that, even if this bad legislation were to pass, we would not be forced to participate, and we will fight for that."
Bishop Lynch, like Sister Keehan, said that if Congress passed a law forcing Catholic hospitals to perform abortions, they would refuse to obey the law but would not close the hospitals.
SSM Health Care, which operates Catholic hospitals in St. Louis, also believes FOCA would not require it to perform abortions. In a statement, the hopsital group said: "SSM Health Care opposes the Freedom of Choice Act because it promotes abortion, seeks to increase access to abortion, and attempts to remove restrictions to abortion. ... However, if it were to pass, we do not believe our Catholic hospitals would be forced to participate and we would advocate strongly for our right of conscience to decline to provide abortion services."
Time magazine and FactCheck.org analyzed the claims that some bishops have made about FOCA. FactCheck said that the bishops' claim about hospitals was "unclear." The Time article -- "The Catholic Crusade against a Mythical Abortion Bill" -- called the claim "false."
Deirdre McQuade, spokesperson on abortion and related issues at the U.S Conference of Catholic Bishops, said there actually isn't disagreement among Catholic officials. It is true that there were false Internet rumors, she said. But the rumors claimed that President Barack Obama would sign FOCA shortly after his inauguration. The Catholic News Service had not meant to call the hospital claim a false Internet rumor, she said.
McQuade said that the law's prohibition of "interference" with the abortion right would void conscience laws that protect medical personnel and hospitals that object to abortion on moral and religious grounds. FOCA's requirement that government not "discriminate" against the abortion right would jeopardize the federal funding of Catholic hospitals, she maintained.
"If the law is interpreted as the co-sponsors hope it will be ... and if the government isn't allowed to discriminate against abortion, then this law would interpret the government's role in promoting abortion, so Catholic health care could stand to lose public funding," she said.
McQuade was asked if the co-sponsors of last session's bill -- Rep. Jerrold Nadler, D-N.Y., and Sen. Barbara Boxer, D-Ca. -- had said that Catholic hospitals would have to perform abortions or lose funding. No, she said, but added, "it is often what is not said that is as important as what is."
The legal analysis of the general counsel for the U.S. Conference of Catholic Bishops does not say that the FOCA bill from the last Congress would force closure of hospitals.
Appleton, the law professor, said that government decisions to favor childbirth over abortion have not been viewed as discrimination by the courts. The U.S. Supreme Court ruled in the years after Roe that a government decision to favor childbirth over abortion did not amount to discrimination in violation of the Constitution's Equal Protection clause. For this reason, a government decision to reimburse Catholic hospitals for obstetrics and not for abortion, is not likely to be considered discrimination under FOCA, she said.
St. Louis was the setting for one of these funding cases, Poelker v. Doe from 1977. St. Louis refused to provide non-therapeutic abortions in its public hospitals, which were staffed by medical personnel from Saint Louis University's hospital, a Jesuit institution at the time. The Supreme Court ruled that it was not government discrimination for the city hospitals to provide obstetric care and not abortions. The St. Louis decision was based on another 1977 case, Maher v. Doe, in which the court held that the state did not discriminate when it paid for poor women's obstetrics but not their abortions.
Jill Morrison, a lawyer with the National Women's Law Center, also says that FOCA would not force Catholic hospitals to perform abortions. She notes that the federal conscience clause law, referred to as the Church amendment, says that the receipt of federal money does not authorize the courts to require the recipient to perform an abortion.
FOCA, if passed, would overturn many state laws restricting abortions, such as so-called "partial-birth" abortion laws, informed consent requirements and 24-hour waiting periods.
Supporters acknowledge that passage of the bill is unlikely. Any legal requirement to force Catholic hospitals to perform abortions or condition federal money on the performance of abortions is viewed as having no chance of passing.
William H. Freivogel, a longtime journalist in St. Louis, heads the school of journalism at Southern Illinois University Carbondale.
