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Date / Time: 3/2/2009 1:54 AM UTC

A Letter to My Bishop on FOCA

His Excellency, Paul S. Louverde

The Diocese of Arlington

Arlington, Virginia

Your Excellency,

I write today regarding your annual Lenten appeal and your recent outreach efforts regarding the Freedom of Choice Act.  As I suspect that the appeal includes support for the diocesan pro-life office, I am afraid I cannot contribute this year.  Instead, we will contribute directly to Catholic Charities, among other agencies.

FOCA materials distributed at Mass in January.  I did not complete and return the postcard to the volunteers collecting them and will not be doing so any time soon.  The fact that they were centrally collected leads me to expect that the purpose of this campaign had more to do with grassroots organizing than it did with communicating with Congress.

Make no mistake, I do not agree with many of the provisions of FOCA, however given that it has never made it out of committee, I suspect its mention has more to do with the usual opportunism of those who make their living from fundraising on the abortion issue.  Likewise, its mention during the campaign likely had more to do with Republican coalition politics than any real danger of the Act’s passage.

One of the myths advanced to support the post card effort is the contention that FOCA would create a right to abortion in law.  That has already occurred in both Roe and as the result of the passage of the Unborn Victims of Violence Act, which recognizes in federal law the right to abortion (Section 1841, Clause (D) (c)).

Another myth was that Catholic hospitals would have to close.  According to the leadership of the Catholic Health Association, this is also false.

On January 22^nd, as every year, thousands marched on the Supreme Court to mark the bittersweet anniversary of Roe v. Wade and Doe v. Boulton  in 1973.  What makes it all the more bittersweet is the focus of the pro-life movement on Republican electoral politics and organizational fundraising.  While some efforts have been at the margins, the fact that these could be annihilated by one congressional action testify to thirty six years of failure to address the real issues involved in reducing abortions.

Overturning Roe makes for a nice slogan, however there is almost no chance that this can happen, nor should it.  In United States v. Carhart, three of the Justices in the Majority rejected the analysis that Roe was wrongly decided, relying instead on the authority of the Commerce Clause to regulate medical practice.  They could have easily have used the plain language of the Fourteenth Amendment, which empowers the Congress to enforce and therefore interpret the Amendment itself by conferring legal recognition on the fetus at some point prior to birth.  Justice Kennedy’s revulsion at the procedure as an act of infanticide demonstrates the Courts continued reliance on the Amendment for guidance on when to recognize the rights of the child.  That the most recent appointees to the Court agreed with Justice Kennedy testify to the fact that Roe will not be overturned at any time in the near future.

While the result of Roe may be tragic (although the argument can be made that the majority of abortions which occur today would have occurred without it), its conclusions are not.  The central holding was that women have a right to medical privacy on this issue.  This holding is based on the premise that there was nothing in the law which gave recognition to the fetus as anything more than chattel.  This can be demonstrated by the fact that the penalty for abortion was a simple fine, which is approximately the penalty for killing the neighbor’s dog.  This provided no basis for finding that the fetus had legal rights under the law. 

Neither the Court nor the States can constitutionally grant these rights under the Fourteenth Amendment.  As stated previously, Congress as the sovereign legislature must be the source of any recognition of the rights of the unborn, both because of its enforcement power under the Fourteenth Amendment and its power to regulate the terms of citizenship.

More alarming in the body of pro-life rhetoric is the “federalist” position that the matter should be returned to the states (although the original Federalists would chafe at the use of the term, which more faithfully represents an anti-federalist states’ rights position).  Overturning Roe in this way would create the specter of abortion states and non-abortion states, repeating the mistake of antebellum America’s handling of slavery.  If Roe were reversed in this manner judicially, the effects would be more far reaching, as this could conceivable gut federal supremacy in a variety of areas, including civil rights, the rights of criminals, the privacy rights of gays and lesbians and the rights of the Catholic Church to operate without interference in areas with large Protestant majorities. 

While overturning federal supremacy is something of an article of faith for conservatives, it must be abandoned by the pro-life movement, particularly among Catholics, who were an integral part of the civil rights movement in the 1960s, cosponsoring the original and subsequent Marches on Washington.  Given the fact that the recent election of President Obama would have been impossible without the civil rights movement, perhaps it is time to disassociate the pro-life movement from any position which would be seen as an attempt to repudiate the gains of the civil rights movement.

There only remain two options for protecting the unborn legally.  The first is a constitutional amendment.  There are at least thirteen reasons this will never happen, that being the number of states required to block any amendment from ratification.  The chance that a Human Life Amendment will even make it to this stage is remote, given the propensity of pro-life politicians for pandering over action over the past 36 years.  This leaves simple legislation, which as I have pointed out is entirely possible, although it may prove fatal to Republicans with ulterior motives, since success would likely de-radicalize a major portion of its base.

The reliance on a judicial strategy and the possibility of a constitutional amendment allows pro-life candidates to avoid discussion of several of the difficult issues raised when the prospect of limiting abortion is seriously discussed.  Often, these issues come from the base, particularly the resistance to any compromise at all.

When abortion was banned as a medical procedure, the punishment was a fine.  This would not be possible today, since the only way to get beyond privacy rights is to provide legally unprecedented recognition of the child.  With that recognition will come equal protection rights, including the right to justice and the right to sue for torts.  When the child is a separate entity, any fetal loss of life goes from private tragedy to public event.  The implications of this change have received scant analysis, the burden of which is on the proponents. 

The impact on the practice of obstetrics will not be trivial, as the principle of equal justice would demand that the survivors of any legally recognized fetus lost to miscarriage would be entitled to at least sue for monetary compensation.   As most miscarriages result from genetic abnormalities in the deceased child, most such cases would not go far, if they are not instead settled by insurance carriers.  Such nuisance filings, however, would indeed impact the availability of prenatal care.  The empowerment of prosecutors and attorneys with a pro-life political agenda should also not be underestimated.  The victims of such zeal would most likely be families who have recently suffered a miscarriage.  The last thing these individuals need at such times is the presence of zealous attorneys.

The pro-life movement does not like to say that women will be jailed for having abortions, however under the principles of equal justice, this is what must happen.  If the proponents do not have a taste for this, they must pursue a different course of action. 

Studies have shown that women in poverty are four times as likely to have an abortion.  This is an embarrassing statistic to those who resist economic remedies for abortion.  If eighty percent of abortions have to do with income and the empowerment of women and young families, perhaps economics is where the solution lies.

The Church has been proactive in working for living wage legislation, increased access to health care and daycare and all of those traditionally liberal measures which makes the rightward tilt of some Bishops, including your Excellency, all that more disconcerting.

Over and above the Church’s policy advocacy, there is much more it can do without the assistance of the government.

Catholic business-owners and stock holders who do not provide a living wage could be excommunicate, although to do this, parishes and diocesan agencies would have to set an example by giving a sizable wage increase whenever a child is to be born – irregardless of the base wage of the employee.  While this would be easier to do if federal and state tax credits supported the effort, perhaps Church leadership in this area would spur the government to act.

More vexing is the problem of Catholic parents obtaining abortions for their daughters.  These parents do not utilize family planning clinics, but rather arrange for hospital abortions (thus avoiding prayerful witness or identification by the parish priest).  Considering that the Catholic Church owns and operates the largest private educational system on the planet, this does not have to be.  Parents obtain abortions for their children so that they can have a future.  It should not be the parents’ choice.  Rather, when a teenage girl is pregnant, the new life should be celebrated and the couple wed, with both parents offered both free tuition, room, board, daycare and a stipend for their high school and college years.  For those students who are not college bound – an underserved majority of Catholic youth, Catholic vocational-technical schools should be established with the same set of benefits – or scholarships and housing offered at a non-Catholic institution while Catholic institutions are being established.  The witness of Catholic education should not be limited to those bound for college.

Catholic sexual morality is also part of the blame for the number of abortions among Catholic teens.  Many parents insist on abortion rather than adoption or marriage for their children because of the reflection on them as parents.  This issue should be addressed in no uncertain terms. 

Until the Church does everything it can in its own purview, it should refrain from telling me how to vote.  It is no sin to not give my vote to opportunists who talk a good game on abortion, yet refuse to act.  Indeed, Republican welfare reform provisions capping benefits at five years are likely a cause of abortion.  If abortion is truly the most important issue facing us today, one cannot in good conscience vote or support Republicans without seeking absolution.

Yours in Christ,

Michael Gerard Bindner

Blessed Sacrament Parish

• Tags:
• FOCA
• abortion
• Catholic