Merry Newspeak Freedom
by Donald Devine
Issue 120 - November 19, 2008

As Christians prepare to enjoy their most popular holiday, concern is growing that President-elect Barack Obama will fulfill his 2007 promise to Planned Parenthood that the Freedom of Choice Act would be among the first laws he would sign upon becoming president. Unfortunately, FOCA would actually deny freedom of choice to a large segment of those Christmas celebrants.

At their recent December annual meeting in Baltimore, the Catholic bishops of the United States were advised by their lawyers that if FOCA were adopted, the law would no longer allow their hospitals and personnel to refuse to perform abortions. “ For once,” the left-leaning National Catholic Reporter commented, Catholic Church leadership was “remarkably” united on a major issue. As the Reporter noted,

Cardinal Francis George of Chicago, president of the conference, floated some “talking points” on Tuesday for a statement on policies under Obama. He alluded to FOCA but did not mention it by name. Several bishops, including Cardinal Edward Egan of New York and Archbishop Joseph Naumann of Kansas City-Kansas, insisted that FOCA be explicitly denounced in the text, and in the end George followed their lead. “FOCA would have lethal consequences for prenatal human life,” says the statement released by George, in the name of all the bishops, on Wednesday. “It would be an evil law that would further divide our country, and the church should be intent on opposing evil.”

Even liberal Archbishop George Niederauer of San Francisco, demanded that the church make the case against FOCA “early and often, both with members of Congress and with the new administration.”

Auxiliary Bishop Thomas Paprocki of Chicago was most concerned with the problems FOCA posed for Catholic hospitals.

It 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.

Cardinal George said such fears are “well-founded,” because “once something is enshrined as a right in law, then I have no authority to deny it to someone.” When asked what the country would do without its Catholic hospitals, George replied there could be “one-third fewer facilities for health care in the country than you have now, wouldn’t you, at least in the state of Illinois?” About 12.5 percent of U.S. hospitals nationally are Catholic, treating 5.5 million patients annually. With the ubiquity of government health programs, almost all receive government funds directly or indirectly and therefore could be considered as acting under cover of law.

The Act’s purported goal is to allow women to have a free choice to have an abortion. It proposes that the U.S. national government grant a “fundamental right” to every woman “ 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.” Yet, to grant such a broad right to termination requires that others must be forced to perform it. The proposed law does not simply provide that no one may forcibly prevent abortions. FOCA not only grants the right to abortion but also forbids others to “ discriminate against the exercise” of that right.

Any individual denied this “abortion right” is allowed to sue for civil remedy. Nominally, only federal, state and local governments are forbidden from discriminating against the right but the Act would also allow suits against any “other individual acting under color of law.” This means that if doctors, nurses, or other state-licensed professionals, and hospitals or other health-care providers, decline to provide abortions, these individuals can be sued for “discriminating” against those desiring an abortion. Federal “conscience laws” allowing those morally offended by abortions to refuse to participate in them would be annulled under the reasoning that these are actually “refusal clauses” because they allow individuals to refuse to perform an abortion.

When an individual is not allowed to refuse to do something, he or she is refused the freedom of choice. So the “freedom of choice” provided by FOCA is an absolute requirement that that some individuals receive an abortion that others are forced if necessary to provide. Moreover, FOCA overrides all state and local laws, including their conscience clauses but also parental notification and consent requirements for minors seeking abortions, 24 hour waiting periods, partial-birth abortion bans and funding prohibitions - forbidding a federalist option of diverse solutions in different states. This national preemption over state law is justified under the interstate commerce clause of the Constitution merely because women and abortion providers cross state lines and clinics receive medicine and supplies that cross state lines. While such minor degrees of interstate activity have passed federal judicial scrutiny in the past, these have pushed the extremes of interpretation and are viewed by many as wildly excessive especially in such a sensitive area as abortion.

Clearly, some very large percentage of the U.S. population considers abortion gravely immoral. Whatever the precise number, being forced to participate in what one considers evil is an extremely broad use of the government’s coercion power against a very large number of people. The Catholic Church is the nation’s largest single organized religion. Orthodox Christians, Jews and Muslims have similar strictures against abortion, as do many traditionalist Protestant churches and even some who are not religious at all. But if these people are doctors, nurses or other health professionals or even support staff, FOCA would require these to assist in providing something they consider reprehensible. This is hardly freedom of choice for them.

To assess the degree of opposition, one bishop at the Catholic conference went further than merely threatening to close hospitals. Arlington Virginia Bishop Paul Loverde said if he had a hospital in his diocese, he would not close it but would order its management and staff to ignore the law.

I would say, ‘Yeah, I’m not going to close the hospital. You’re going to arrest me, go right ahead. You’ll have to drag me out, go right ahead. I’m not closing this hospital, we will not perform abortions, and you can go take a flying leap.’

Actually, according to the official teachings of the Catholic Church, its Catechism states that Catholics are “obliged in conscience not to follow the directives of civil authorities when they are contrary to the demands of the moral order, to the fundamental rights of persons or the teachings of the Gospel.” Catholics may refuse to obey governments, “when their demands are contrary to those of an upright conscience.” 

Catholics have already faced such circumstances. When one house of the Australian state of Victoria passed a bill not only requiring physician assistance in abortions but also pharmacists and nurses to administer abortifacients, Archbishop Denis Hart declared simply that “Catholic hospitals cannot be any part of any abortion. Even providing a referral is cooperation in evil, and that impacts very strongly on us as Catholics.” Consequently, he said would be forced to close the fifteen hospitals that accommodated one-third of the births in the state.

In America, when the Connecticut Senate required all state hospitals to provide the Plan B “morning after pill” to rape victims, state bishops William Lori and Henry Mensell originally claimed the bill was “a violation of church and state” and maintained that this would “involve Catholic hospitals in the performance of early abortions and would violate Catholic principles.” When the bill was signed into law, however, they then declared “there is serious doubt about how Plan B pills work,” and retreated on their demand that a prior test for ovulation was necessary to assure the woman was not pregnant, although concluding that they would reopen the matter if they found that abortions did occur at Catholic hospitals as a result of administering the pill.

When the full power of the government is put behind the law, even the freedoms that seem most valuable can be threatened as those who are targeted shrink at the consequences of disobedience. This is especially the case if it is done gradually, one step at a time. As Nobel economist Milton Friedman often emphasized, no frog would be harmed if thrown into boiling water. He would simply jump out. But if he is put in cool water and the temperature is slowly raised, he will be lulled into abandoning his freedom of action and will slowly become frog soup.

Has freedom come to this, President-elect Obama? Shall some large group of Americans be forced to choose between shutting down their hospitals, performing civil disobedience, or violating their consciences so that they are forced to serve the “freedom of choice” demands of others with special rights? As George Orwell dramatized so well in his classic novel “Nineteen Eighty Four,” the most effective trick is to employ a “newspeak” language defining the proper freedom for society to be slavery.

Donald Devine, the editor of Conservative Battleline Online, was the director of the U.S. Office of Personnel Management from 1981 to 1985 and is the director of the Federalist Leadership Center at Bellevue University.