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FOCA forcing with federal funds

I had a brief discussion with commentator msb in an earlier thread about the question of how, exactly, the so-called Freedom of Choice Act could be used to force hospitals and doctors to be complicit in abortion. My only question has been how that coercion would work, legally. What, exactly, would the removal of special conscience protection for abortion mean? Are doctors usually required to provide or refer for any procedure if the state they are in does not have an explicit conscience provision allowing them not to provide or refer for that procedure? What would the mechanism of coercion be if explicit state conscience protections for abortion were removed?

Now, via (of all places) Slate, by way of Secondhand Smoke, comes the plausible answer: Threat of withdrawal of federal funds.

Here's the basic idea: The most recent, and most radical, version of FOCA proposed states that the government is not permitted to "discriminate" against abortion (how do you discriminate against a procedure?) in, among other things, the "regulation or provision of benefits, facilities, services, or information." (See discussion here.) Now, if a hospital expressly refuses to allow abortion on its premises, and that hospital receives federal or state funds through a program like Medicare (which of course Catholic hospitals do), this could easily be interpreted as being a case of "discrimination" against abortion in the provision of facilities, services, and information. And the same for doctors who receive public funds but will not refer for abortions (there's that "provision of information" bit). It would in all probability be argued that this was government discrimination, because the government would be funding facilities and providers who block out abortion provision and referral as a matter of principal, even when they provide other related services such as maternity care.

This helps to explain the point made in an article that msb linked. It describes pro-abortion Senator Carol Moseley Braun's argument against a less radical version of FOCA that upheld conscience provisions. She argued that the less radical version restricted "access" to abortion; she apparently believed that the retention of conscience provisions would somehow permit limitations on such access. Did she just not know what she was talking about? Well, the answer probably is that the conscience provisions prevent doctors and hospitals from having federal and state funding blocked if they refuse to allow abortions on their premises, to perform them, or to refer for them. Absent the conscience provisions, that threat of loss of funds can come into play.

I applaud wholeheartedly the Cathoic bishops' shot across the bow to Obama: Catholic hospitals will not submit.

Comments (42)

Just so I understand: Lydia, is your argument (1) that Catholic hospitals have a right to federal funds and to disregard the regulations that come with those funds? (2) What about pharmacists? Do they have the "freedom of conscience" to refuse to fill prescriptions for RU-486 and/or birth control?

I don't think anybody has a _right_ to federal funds. However, since I regard abortion as murder, I think it heinously wrong for the federal government to use the leverage of threatening to withdraw federal funds to try to force hospitals to allow abortion on their premises. Just as, presumably, you would consider it wrong for the government to tell facilities that they must lose federal funds and close their doors if they do not permit five-year-olds whose parents do not want them to have them killed by lethal injection on their premises. It would obviously be a form of pressure to try to make the hospitals complicit in the act, and so of course one's evaluation of the nature of the act will affect one's evaluation of pressure to make people and organizations complicit in it.

But I certainly do not propose to argue the morality of abortion in this thread. The point was to tell my readers, esp. those who may have read my earlier thread and exchange with my reader msb, that I now have a better understanding of _how_, legally, FOCA might bring this pressure to bear.

If you have evidence that this prediction of how the pressure would be brought to bear under the act is factually incorrect, that, of course, would be relevant.

This is kind of a weird issue for me, since I don't think government should be in the business of subsidizing hospitals in the first place. It's why I think the pharmacist issue is clearer (and why I asked you that!) :)

But here goes, with your analogy: let me assume that -- (1) for some unfathomable reason -- killing five-year-olds was an integral part of, say, automobile repair, and (2) the government had been actively subsidizing automobile repair. (Again, just remember: I am assuming this for purposes of your hypothetical, and I find these premises horribly wrong! :))

But given those two propositions, then yes, I would find it strange if there were an organization of Catholic auto repair stations that refused to kill five-year-olds. If you don't like killing five-year-olds, don't go into a business where it's an integral component.

Similarly, if you don't like dispensing RU-486, go into another profession. No one has a gun to your head forcing you to be a pharmacist.

(1) that Catholic hospitals have a right to federal funds and to disregard the regulations that come with those funds?

Those hospitals still genuinely Catholic will refuse the funds and either offer reduced levels of care, or close down. The State will expose its true colors; better to kill the unborn than heal the living.

(2) What about pharmacists? Do they have the "freedom of conscience" to refuse to fill prescriptions for RU-486 and/or birth control?

A country shaped by the Christian conception of personhood allows for the exercise of a free conscience by individuals, private businesses and institutions. On the other hand, a secularized population will cede control to an ostensibly "neutral" State and the blind, impartial forces of the Market. A slave mentality is threatened by unseemly moral disputes and discomforting dissent.

Similarly, if you don't like dispensing RU-486, go into another profession. No one has a gun to your head forcing you to be a pharmacist.

In other words; Christians need not apply. Lets leave the healing professions in the hands of those who attach no special sanctity or dignity to human life.

I get the secular part, but what exactly is "conservative" about your approach? Don't you mean authoritarian?

...go into another profession.

Such supercilious diktats should be recognized for what they are, namely, declarations that socially influential professions shall be closed to those professing the Christian religion, should they have the temerity to profess that religion as a way of life, and not as a mere personal affectation, gnostic conceit, or Soviet-style personal liberty ("between the ears alone"). It is, to put a fine point on the matter, perfectly analogous to the statutes and customs by which Christians are reduced to dhimmis in self-conscious Islamic cultures, and to statutes common in early phases of Western history by which Jews were restricted to occupations regarded as ignoble and base. It is the moral and political equivalent of subjugation and anti-Semitism. Period.

don't go into a business where it's an integral component.

Hospitals operate without various services (emergency, urology, orthopaedics) that are "integral components" of health care, but they aren't threatened with loss of funds. It is impolitic and counterproductive to withdraw support from a hospital that provides useful services because of one procedure.

Since, obviously, the hospitals are providing a huge range of health services without providing abortions, and since they have been an enormously important part of our country's medical facilities from time out of mind, and since doctors are doing the same, it is obvious that abortion is not an "integral part" of the healing arts. It cannot be made so by regulation. And the attempt to do so is clearly an attempt to force more people to be involved in abortion than have been before. It would be silly to deny this. The matter cannot be cast in neutral tones vis a vis abortion, as if there were just some fact of nature out there that performing abortions and having one's facilities used for abortions just _is_ a "part" of running a hospital, and somehow the dissenters are trying to rebel against this fact. The truth of the matter is that the pro-aborts are unhappy about the fact that lots of doctors and a huge number of hospitals don't do abortions and don't want to be involved in them, and they want to change _that_ fact. Obviously whether one thinks abortion is evil or not will affect one's evaluation of such proposed legislation.

But does it seem that the statement in the main post as to how pressure would be applied is plausible? I find it amusing to have gotten it from Slate, which is hardly a pro-life publication, but it seems very plausible to me.

Frankly, Andrew, I don't see see how a reasoned, moral answer is possible to the arguments put forth by Max, by Kevin, and by Lydia. I honestly do not. But if you have one, I sincerely want to hear it. I want to hear a point-by-point response to their collective case.

The closest I can come up with from your secularist point of view is for the government to identify whatever small percentage of its "health care" funds goes for abortion, and permit the Catholic hospitals to decline that percentage of the money, accept the rest, and to proceed in their daily business according to traditional Catholic morality regarding the value of human persons, born and unborn.


In other words; Christians need not apply. Let's leave the healing professions in the hands of those who attach no special sanctity or dignity to human life.

I get the secular part, but what exactly is "conservative" about your approach? Don't you mean authoritarian?

I don't really have a sophisticated argument here; it just seems to me that tf there's a profession that you know in advance offends your conscience, choose another career.

For example: I'm a lawyer. I wouldn't have any sympathy for someone who chose my profession, became a public defender, and then said, "Oh, but I only want to defend the innocent ones!"


It is, to put a fine point on the matter, perfectly analogous to the statutes and customs by which Christians are reduced to dhimmis in self-conscious Islamic cultures, and to statutes common in early phases of Western history by which Jews were restricted to occupations regarded as ignoble and base. It is the moral and political equivalent of subjugation and anti-Semitism. Period.

Here, let's try it this way: I'd really, really like to be a pastor. The lifestyle seems to appeal to me, I like people, and I'm pretty well-read on religion. The only hitch is that as a matter of conscience, I'd rather not talk about all this crazy Jesus stuff from the pulpit.

Is there any sane argument anywhere that says I deserve the "liberty of conscience" to be an atheist pastor?

The social fabric of this country is going to be badly torn and frayed due to its economic reckoning. While he's surrounded by Herodians, I doubt Obama is going to jeopardize his Administration's other priorities by opening up a Kulturkampf over FOCA. States and municipalities have yet to experience the real ramifications of lost tax revenues and any hospital closings in this environment would create a hellish burden on the public sector and strain the health-care industry to the breaking point. He'll enact a series of executive decisions overturning things like the Mexico City regs, corrupt the Courts and let Hilary agitate for abortion being declared a human right at the U.N. All gross enough and sure to further alienate the Southern Hemisphere and Islamic world, but more doable than asking his Congressional allies to immolate themselves over FOCA.

The hard Left is learning that Obama is all about Obama. His foreign policy will be conducted in the worst tradition of hegemonic democratic capitalism and his domestic agenda will be run by his financial angels on Wall Street. He'll buy off the true-believers with a Domestic Security Corps for aspiring storm-troopers who can harass their cultural opponents with state-issued badges and other sops.

I don't really have a sophisticated argument here;

Did you have to overstate your case Andrew? That is a ridiculous analogy.

it just seems to me that tf there's a profession that you know in advance offends your conscience, choose another career.

How many times do I have to say this? The hospitals are running _right now_ without allowing abortions on-site. They have been doing so _all along_. Gazillions of doctors, too, have been pro-life doctors. It's just totally _invented_ to say that "the profession" of being a doctor or a hospital administrator intrinsically involves having abortions on-site, performing them, or referring for them. It's _made up_. It's not something they _ever have been_ doing. It's something that the government is _just now contemplating_ trying to make them do. Therefore we are saying, "No, that's a bad idea. Don't start trying to make them do that." How hard is this to understand?

You didn't respond to their arguments. You simply reiterated your prior position, which they showed you, even before your reiteration, was discriminatory, at best, and tyrannical, at worst.

By the way, you certainly can be an atheist pastor, both religiously and legally. There are numerous atheist churches with government tax exemption, and if you are an atheist pastor, the government doesn't discriminate against you or your organization for practicing your beliefs the way the government discriminates against Catholic hospitals for practicing theirs.

Well, I actually think Andrew has a point; and Lydia does too. That is, it is not in reality the case that providing abortion and contraception etc are essential elements of the practice of medicine (whereas it is in reality essential for a Christian leader to be Christian). The whole point of this nominalist/legalist approach is to alter reality to make it the case that abortion and contraception are essential elements of the practice of medicine and healing. Nietzsche has won, at least ironically; and, as he got the death by self-inflicted syphilis that he wanted, what the free and equal superman wants today is bread and circuses. No Christianist untermensch is going to stand in the way of that.

Is there any sane argument anywhere that says I deserve the "liberty of conscience" to be an atheist pastor?

Like you lawyer analogy, this one is goofy too Andrew. The lawyer, like the pharmacist would face a loss of income, but still maintain his trade, while retaining his integrity.

The pastor of disbelief could still preach from the pulpit if he could find a flock willing to worship at the altar of the abyss. Surely no denomination of faith could be compelled by the state to endure homilies attacking their beliefs. Under your regime private individuals face a choice between violating their consciences or leaving their professions. Your analogies are exceptionally weak. Go outside and get some air, or come back wearing jackboots, a bullet-belt and epaulettes!

If somebody goes around saying that it's of the essence of being a dog that the animal wears a red hat on its head, that's a bizarre and crazy thing to say. But if somebody does say that and we show him thousands of dogs who clearly are dogs but don't wear red hats, the case should simply be closed.

Similarly, I have no idea why anyone would think that involvement in abortion is essential to being a doctor and that providing abortion services on site is essential to being a hospital. That is just a bizarre thing to think. But if we show thousands of doctors and hospitals that are not and never have been involved in abortion in these ways, the case should be closed.

You're right, Lydia, absolutely. And, if your were dealing with a worldview that actually felt the weight of arguments drawn from rationality and from righteousness, that would settle it. But to think that of secularism generally is to pay it a compliment it does not, and cannot, deserve. Yet, the secularists think YOU are irrational. You catch them in an indefensible position, and they know it, yet they do not admit their error and change their view.

All of which is why I have said before on this forum many times that while the arguments do need to be made over and over -- and I am for making them -- we live in a world where power speaks more effectually than reason. We need Christians who know how to get their hands on the levers of power and use it with right reason for the purpose goodness. But rather than doing that, we too often opt out of politics and out of the marketplace, and simply bewail evil, never actually engaging it head on in face-to-face combat, beating it to a bloody pulp with its own weapons. We're often so damn afraid of doing something wrong that we don't have the courage to do something right. (Note: When I say "we," I don't mean you personally, Lydia. I mean we Christians, generally speaking.)

The world doesn't give a sh*t how much we bewail -- and neither does God. It's time to change things. If part of Jesus' task was to destroy the works of Satan, then that task is ours as well. You know, you can use Machiavelli in a righteous way to beat the Machiavellians.

This thread simply reinforces my impression that thoroughgoing public moral relativism, and "personally opposed, but..." legal reasoning (so nicely summarized by Maximos) always ends the same way: might makes right.

No one in this thread but you said might makes right.

Is there any sane argument anywhere that says I deserve the "liberty of conscience" to be an atheist pastor?

Why, yes, there is, and it doesn't even necessitate that you coerce the consciences of your parishoners by promulgating your atheism, or avoiding distinctively Christian teachings: You could become a Unitarian Universalist or, in some places, an Episcopalian.

Michael, I think Sage is making a point on your side: That is, he is saying that if one is a moral relativist, one ends up concluding that might makes right.

As I think about it, it seems to me that whether one is a nominalist or an essentialist about the medical profession, one cannot avoid the conclusion that those who think abortion is murder are obligated to oppose this attempt to pressure hospitals. Suppose that one is an essentialist about the profession. Well, then, the notion that abortion is objectively of the essence of the medical profession is easily refuted, as we've already discussed. Suppose on the other hand that one is a nominalist on the subject. Well, then, one presumably believes that we can make the medical profession be whatever we want it to be. But in that case, obviously moral considerations are relevant as to whether we _should_ declare abortion intrinsic to the medical profession, and we're back to the conclusion that it is perfectly reasonable for pro-lifers to oppose such coercion. In neither case is there any justification for saying that it doesn't matter what one thinks of the moral nature of abortion, because it just "is" part of the profession and people who object to it just shouldn't "get into that profession." That this is true is made all the more obvious by the fact that no such legal coercion on the medical profession presently exists in the United States and that this is the obvious time for debate as to whether it _should_ exist.

Neither the Christians nor Andrew argued that might makes right.

Power is the logical social, economic and political determinate in a technological culture that exalts mastery, control, efficiency, utility and results over transcendence. State and Market work hand in hand to obliterate all the conditions necessary for cultivating a life in the Spirit. The silence and leisure necessary for reflection get swept away by our enthrallment to technique, innovation and lust for more. Perhaps it is a desire to escape from Reality, or a deep inner rebellion that drives our impulse to create a disincarnate, frenetic pace to modern life. Whatever the motive, the end result is greater disorder and discontent.

A serious Christian resistance to the grinding and subtle dehumanization of modernity can only be mounted by offering a more serious diagnosis than what many conservatives are willing to contemplate. For now, many seek to reassure themselves by reading old Reagan speeches and cheerfully delusional Wall Street Journal op-ed pieces. As the unsustainable structures and modes of 21st Century Super-Powerdom come tumbling down, a great opportunity for Christians will emerge. I just hope we're ready for it.

Michael Bauman: thanks for sticking up for me, though we obviously disagree. My point is that people agree through voluntary contract to perform a service in exchange for compensation, and that they should not resort to the coercive power of the government to alter that contract to permit them to not perform certain services because it conflicts with other beliefs they hold. To me, that's as far opposite from "might makes right" as it is possible for one to be.

Again, if people want to argue with my political beliefs, the grounds on which to do it (cleanly) is the pharmacist example, and not really the hospitals, since I don't think the state should be in the hospital-subsidizing business anyway. I recognize that's kind of a sidetracking of the main point of this post, so I'm not trying to push it.

I will say that if a private Christian pharmacy decides to pop up and refuse to dispense RU-486 or contraceptives, so long as they don't take federal funds, I would just as stridently fight for their right to do so. (That, I think, is the analogue of my being a UU pastor -- are they called pastors?)

But what I object to is a private employer deciding to dispense contraceptives, a Christian getting hired as a pharmacist knowing his employer's policy, and then complaining to the state when he is forced to do his job.

I probably shouldn't have said anything; Lydia's comment #2 indicates that she had a different purpose for this thread, and it was not my intent to derail it. I'm sure I'll have plenty of other opportunities to yak. :)

and that they should not resort to the coercive power of the government to alter that contract to permit them to not perform certain services because it conflicts with other beliefs they hold.

I'm not at all sure that I know what you are talking about. I guess some sort of attempt to require a religious accommodation by an employer for an employee. But that is emphatically _not_ something we have been talking about, one way or another. What we have been talking about is the attempt by the _state_ to require that a person do something or that an organization do something. We can assume for the sake of the argument that employers and employees all agree or are all willing to work together to refuse to do the procedure, etc. But there are (in case you didn't know) various proposals for requiring them to do so or "get out of the business." In Australia (as I have mentioned) there is a direct law using (in your phrase) the coercive power of the government _directly_ to require that doctors with conscientious objections to abortion refer to other doctors without such conscientious objections. This was passed just a few weeks ago. Some would like to pass such laws in the U.S. Another plan, as I discussed in the main thread, is apparently to threaten loss of federal funds to those who do not provide the "service" of abortion on-site. Again, these are _new laws_ under consideration. The question is whether they are right or just and whether we should lobby against them. And it seems to me that you, Andrew, have been taking a curiously amoral approach, as though such laws just happen by a force of nature and then the nature of the profession just osmotically becomes whatever the _new_ regulations say it is, even if that wasn't true yesterday, and as though one's moral beliefs are somehow irrelevant to whether one supports or opposes such laws in prospect. That makes no sense at all.

I will refrain from trying to respond to any comment in particular, but several points are relevant here:

1) Medicare is not a system for providing open-ended grants to health care providers. It's an insurance program covering elderly Americans. So amendments to the Medicare Act or relevant DHS regulations preventing Medicare payments from being distributed to hospitals or practitioners who do not perform abortions will not eliminate those institution's operating budgets. It simply will prevent them from serving low-income elderly patients. This may cause a variety of problems, destroy certain departments, etc. but given that numerous practices and hospitals already don't take Medicare, it's not the apocalypse (at least from the perspective of the health care provider---if you're a Medicare recipient, be very afraid).

2) Prohibitions on Medicare payments are probably not the sole way that FOCA would be enforced, however. The way in which the bill is written makes it likely that a federal court will hold that it creates an implied cause of action against interfering (do-not-provide-abortions) doctors and institutions. If a doctor invokes a state conscience clause in so refusing, he could quite likely be sued under an explicit federal cause of action, 42 U.S.C. 1983. The ultimate success of lawsuits brought at least under the first rationale and perhaps under the second, will depend on how courts interpret Congress's basis for enacting the statute. If Congress claims to be protecting a right guaranteed by the 14th Amendment, then well established constitutional law would probably prevent suits against private doctors and hospitals. See U.S. v. Morrison, 529 U.S. 598 (2000), U.S. v. Cruikshank, 92 U.S. 542 (1875). It is possible that a plaintiff will argue that physicians qualify as "state actors" because they receive licensing from the state, but this argument is tenuous at best. I am not aware of any state-licensed individual being made liable under a 14th Amendment cause of action on this theory. But if Congress can claim some other source of authority, besides the 14th Amendment, for enacting FOCA, then the state-actor limitation probably will not apply.

3) Physicians, pharmacists, CPAs, and attorneys are all people who hold themselves out to the community as capable of performing a certain category of professional tasks. In no circumstance does the practitioner claim to be able to render every single service that falls within his field. A physician who hung a sign on his door, "abortions available here" and then refused to perform abortions would have problems. But walk into an endocrinologist's office and try making an appointment for a skin graft---that won't go well. Same thing with going to see a divorce attorney about your will. Hell, you can probably find an electrician who doesn't work on certain brands of AC units. The idea that membership in a certain trade requires you to perform any particular single act associated with that trade is ludicrous.

Errata -- the bill explicitly provides for a cause of action; the issues about whether Congress can make individuals amenable to suit in this regard remains regardless, however.

Paul, I appreciate your legal take very much.

I'm a little surprised at your factual statement regarding federal (and state) funds. Is it really the case that Catholic hospitals (for example) would stay open, no problem, if they were able to take _no_ federal or state funds whatsoever? Medicare was obviously just an example. This seems implausible to me. My impression is that hospitals depend rather heavily, directly or indirectly, on public funds. These may come in the form of payments on behalf of individuals receiving services, of course. Surely having to do without all public funds would constitute a major change of operating budget for hospitals that presently accept them.

Regarding the "cause of action" issue, what other rationale could Congress claim for the law? Does it have to have a specific "source of authority" in order to encourage such lawsuits?

There is also, of course, the sheer fact that legislative encouragement of lawsuits is a form of indirect coercion in any event, because the process can be the punishment. Even if the institution won, it might not be worth the fight, financially. If lawsuits are encouraged, this encourages forcing institutions or individuals to spend large sums of money on defense, which is a strong motivation to them not to go there in the first place--just to give in. I have actually realized over recent years that this sort of encouragement of civil lawsuit is something that legislatures often do as a mechanism of indirect enforcement.

My surmising that most hospitals could operate without Medicare funds is an educated guess. I'm sure many hospitals receive various indirect subsidies (e.g. local tax breaks), and the tax-exempt status of non-profit Catholic hospitals is of course important. The rules for Medicaid, which is administered by state governments, are complex and vary by state. I don't know to what extent Congress could cut off those funds without passing a separate amendment to the Medicaid Act. Some hospitals also receive NIH grants that support research, and there may (although I am not sure) be grant programs for some kinds of equipment, but I suspect this last category to be rare if it exists at all. What you would see in a hospital without Medicare would be 1) essentially no geriatric department, 2) no care for disabled individuals and others who qualify for Medicare payments via Social Security, 3) increased costs for the cancer, maternity, ER, et al. patients left. Bad news, but probably doable. But I'm trying to draw on memories from healthcare policy classes taken several years ago at this point, so I might be wrong. If the folks running hospitals say they'll go under, take their words, not mine.

As for rationales, Congress could claim, 1) that it is enacting the law under its general commerce power, 2) that Roe and its progeny have recognized a compelling federal interest in abortion that exists as a background principle to the Constitutional text and permits federal regulation, 3) that it is enforcing the 9th and 10th Amendments.

There are only a limited number of common law bases for suing someone, and "I want an abortion" isn't one of them---so Congress would have to pass a law creating a right to come into court and exact a civil remedy. Because the federal government does not have plenary legislative powers, Congress always has to find a Constitutional basis for legislation, including legislation that creates a right to sue someone in court. Legislative authority flows from various parts of the Constitution, as interpreted (and manipulated) over time by the courts and via practice. Article I gives Congress the power, inter alia, to regulate things that have a significant relationship to interstate commerce, to coin money and establish post offices, regulate Indian affairs, and make intellectual property laws. Section 5 of the 14th Amendment empowers Congress to enact laws enforcing Constitutional rights and protect them from infringement by the states; it also permits Congress to punish states that interfere with such rights by making them amenable to lawsuits (something it can't do under its Article I powers alone). The 24th Amendment empowers Congress to enact laws aimed at prohibiting poll taxes, etc. The key to fighting FOCA if it is enacted will lie in picking apart the rationalization that Congress gives for why it is empowered to enact a law doing these things. Given the makeup of the Roberts Court, this should be possible, albeit not easy.

Ah, I think I see. So for example the Civil Rights acts worked in a reference to the commerce clause, and using that as its excuse for acting Congress passed a law giving someone a right to sue a private individual who discriminates in hiring on the basis of race. So FOCA would have to involve, for example, a similar invocation of the commerce clause in order for Congress to show its rationale for regulating non-state actors directly or for putting in place a cause of action against them.

My sense is that Congress probably doesn't want to do something like what they did with the Civil Rights acts. That is, I think they want to make it look like they are simply regulating _government_ actions while having the _effect_ (inter alia) of regulating non-state actors as well. There are many implications of the act--for instance, striking down state parental consent laws. But the push by the pro-aborts against retaining conscience protection (in an earlier version of the act) certainly looks like they want it to go farther still in order to increase access.

Suppose, Paul, that we were simply talking about denying federal funds. Do you think Congress could get away with that as a partial form of arm-twisting with the current courts?

Suppose, Paul, that we were simply talking about denying federal funds. Do you think Congress could get away with that as a partial form of arm-twisting with the current courts?

Congress's power simply to spend or not spend money (the "spending power") is subject to far fewer constraints than its powers to enact substantive legislation. The Court held in South Dakota v. Dole that there are essentially no limitations on the spending power that the Court is capable of enforcing. Dole is a controversial decision that the current Court might not uphold, but the parts of it that are controversial have to do with state sovereignty and aren't, at least at first glance, really relevant here.

The basic principle is that Congress is not Constitutionally required to pay anything to anyone (except, oddly enough, federal judges). So it is free to make a law paying hospitals, not paying hospitals, or paying hospitals only if the doctors stand on their heads. Congress is almost certainly free to make payments to hospitals on condition that the hospitals do things that they have a right not to do. They can do this because receiving federal funds is itself a "goody," not a right (Congress could not, for instance, pass a law making it a crime for anyone who did not waive his right to free exercise to print a newspaper.)

Lydia, your assessment of the Civil Rights Act and your analogy to FOCA is accurate. The use of the commerce power in the Civil Rights Act has long been criticized by some legal scholars as a pretty lame excuse, and Congress would probably prefer not to have to make the same argument by itself in front of the Roberts Court. The language of the act definitively foresees its covering private actors, though, so the route they take is going to be interesting.

My impression is that hospitals depend rather heavily, directly or indirectly, on public funds.

Yes, they do. Although the payment rates are pretty low for medicare/medicaid, hospitals generally try to make it up with volume (patient #'s x length of stay). It is a significant source of revenue, and helps keep hospitals at the higher end of occupied beds. Ironically, a smaller hospital or facility might be able to survive without it, but once they get to around 200+ beds, keeping occupancy up is a critical budget factor. Moreover, on a system-wide basis, medicare/aid is also critical (eg, a particular hospital within the Sisters of Charity system may do ok w/o it, but their overall network of hospitals would need it).

Paul makes a good point under #3 - even the government hired attorneys don't provide all services the governement wants - you don't see the same lawyers in the attorney general's office prosecuting environmental violations and capital murder cases, nor would you want to.

As for the medicare/caid carrot/stick, it sure does have influence, but, at the same time, a system like the Catholic healthcare network carries quite a bit of weight, and then throw in other Christian hospital systems (Baptists and Methodists are big here in the South). The government can't possibly pick up the slack, and neither can private for-profit systems (not to mention the economic impact closing so many hospitals would have on an already battered economy) and Congress and Obama would have to be insane to push it.

Federal funding, yes. Also licensing. This would work in conjunction with the state's own specific or general rules requiring health providers not to discriminate in provision of legitimate services. Doctors may not be state actors just because they have a license, but states are state actors in giving or penalizing licenses, and if the state allows doctors or hospitals to be licensed even though they discriminate by restricting access (i.e. exercising conscience), the state is itself burdening access in violation of the right to access. Something similar happens with Catholic adoption agencies. Third there is the matter of federal industry standards. If you create a regime where abortion is an equal entitlement alongside pregnancy care, then the courts and regulatory agencies tend to follow the federal standard as public policy and as the definition of what is legitimate care and what is legitimate refusal. Think of the question: does "abortion" include implantation-preventing drugs, for the purpose of whether a provider can object to the latter?

msb, what I'm understanding from Paul is that there is a question of how Congress (being the federal legislative body) would justify requiring, for example, state licensing agencies to require doctors not to "discriminate" against abortion if the state licensing requirements don't currently say that. In other words, while that might happen naturally at the state level, FOCA would, if you are right, amount to an attempt on the part of the federal government to _require_ states to have that as part of their licensing standards, and without some fig leaf of a reference to the commerce clause or whatever, it's hard to see how Congress is justifying doing that under its constitutional powers. I think Paul has made a good argument that they can't justify it under the 14th amendment. Of course, one hates to be at the mercy of the courts in this way, and it would cost a lot of money to fight it and make that argument. I imagine lots of doctors/hospitals would just give in rather than fighting.

Lydia are you talking about Congress' true constitutional power or what Congress gets away with? I know you know that the Supreme Court has struck down only two regulations under the Commerce Clause in the last 65 years. And the issue is generally not whether Congress is really regulating abortion too much for common sensibilities--it is much more lenient than that, whether abortion as a category affects interstate commerce or not. The entire argument for the right to "access" as trumping conscience is its affect on some women in areas potentially "unserviced" by a truly free market. Nearly all US courts of appeals have upheld the Freedom of Access to [Abortion] Clinic Entrances under commerce clause. Obama is going to fill those courts with his judges, in seats that the 100th congress has been holding open for him. Those judges believe that the Constitution alone, without FOCA, guarantees a right that FOCA proposes to guarantee. Not that we shouldn't try to challenge it in court. But of course the whole issue, as against the "pro-life" Obama Catholics, is what will be the actual affect on abortions and the industry at ground level. Politicians like to blame judges for abortion policy so as to excuse their own inaction; states and agencies will gladly blame the feds.

I am reminded of Kmiec's response that FOCA is no big deal because he thinks it is unconstitutional. That and $2.50 will get you a cup of coffee.

sorry that's 110th Congress

I thought of that, too, msb. I guess we're all guessing now, but I'm not sanguine. There are already so many precedents about letting Congress do whatever it darned well pleases using the commerce clause. However, there is this: The FOCA _doesn't_ (AFAIK) presently refer to Congress's commerce clause powers and openly and directly regulate doctors under those powers. So it looks like for heaven knows what reason, Congress didn't want to go that route. Sneakiness? I don't know.

Kmiec, obviously, is just trying to excuse his own bad behavior. It's pathetic. "Don't blame me for voting for a guy who swears he'll sign this incredibly radical totally pro-abortion bill and is all gung-ho in favor of it. It'll probably be struck down by the Supreme Court as unconstitutional anyway." So that makes it _okay_ to support someone like that? I mean, it's sickening.

FOCA doesn't explicitly invoke the commerce clause--neither does the text of FACE.

Both laws discuss, in their findings, issues of economics and access. FOCA's findings don't use the magic word "commerce" in its current version. I don't think liberal judges are going to consider that an obstacle if there isn't even a commerce element in the violation section of FACE.

Wait--what am I saying. The current version of FOCA does invoke the commerce clause in its findings.

This seems to be exactly the same wording as FACE.

Interesting. I had been assuming that it does not. Paul, if you're still reading this, what do you think of that? Doesn't that look like if Congress passes the most recent version they _will_ be arguing before a Roberts court that they have a right to regulate healthcare facilities in this way under their commerce powers? What are the implications of this for the conscience issue?

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