The following points are based on the language of the Senate version of FOCA (S.1173) as it was introduced during the first session of the 110th Congress. Again, they are not likely to be new to fellow pro-lifers, but the way I treat of them below may be useful to everyone involved in the larger national discussion. This, at least is my hope.
- FOCA does not respect the moral agency of medical professionals, even as it makes the moral authority of individuals seeking abortions absolute.
- FOCA would reduce the states' power to regulate the practice of medicine (one of the most basic police powers); FOCA also tends to erode states' authority to regulate the medical profession.
Pro-lifers disagree basically with the sponsors' understanding of the Constitution, and the terms of the basic disagreement are so well known to all interlocutors, that there is no reason to rehearse them here.
Though there is basic disagreement regarding the proper interpretation of the Constitution, we can be pleased to share a desire to see that it be properly applied in every particular. It is in this confidence that I now address the first point.
Section 4b (1) & (2) of FOCA make it virtually impossible for states to restrict abortion in any way, shape or form. In proposing to grant women effectively unlimited access to abortion, the legislators are motivated by a concern that "[I]ndividuals are free to make their most intimate decisions without governmental interference and discrimination. [@2.(1)]" This concern of the bill's proponents is a consequence of their belief that, "The United States was founded on core principles, such as liberty, personal privacy, and equality."It is with this last, equality, that I am presently concerned.
The bill, in short, is designed to protect certain citizens' rights to act according to conscience. In effect, the bill would guarantee this right to one class of citizens, namely women, by denying it to another, namely medical professionals. Pro-life doctors are no less conscientiously motivated in their refusal to perform abortions, than are women who seek abortions. To require a doctor to perform abortions as a condition of his practice of the medical profession at all (and this would be the effect, or a direct consequence, of the current language of the bill), is precisely to deny doctors the right, "to make their most intimate decisions without governmental interference and discrimination." This is precisely the right, the exercise of which by a certain class of citizens the bill is designed to protect. So the FOCA is what Martin Luther King, jr. called in his Letter from a Birmingham Jail, "an inequality made legal."
Without clear exemptions for those medical professionals conscientiously opposed to abortion, the FOCA will be unjust, as the plain language of the bill itself amply attests.
The second point deserves more fulsome treatment than I am presently at liberty to give. I would only say that the power to regulate the practice of the medical profession is an important element of states' police power. To curtail it in one or another particular is to create or stregthen a tendency to erode states' power, in favor of the federal power. This tendency, if it is not arrested, will finish in the annihilation of the states. Our system of government is based on the preservation of a dynamic equilibrium between the states and the federal government. The FOCA would not be a momentary shift, something tidal; it would represent a sea change; it would permanently unbalance the powers.