First on the Obama administration's to-do list: a stimulus package, bailouts, and ... abortion? Given the imperatives of the economic crisis, picking an abortion fight early on would seem highly unlikely.
But the Roman Catholic Church is coordinating a national postcard campaign next month to oppose the Freedom of Choice Act (FOCA). Abortion opponents fear the new Democratic majority in Washington could succeed in passing the decades-old bill and Barack Obama would make good on what he told Planned Parenthood in July: "The first thing I'd do as president is sign the Freedom of Choice Act."
The bill could wipe out federal and state restrictions on abortion such as parental notification and informed consent laws. Some say FOCA is so broad it would also imperil "conscience clauses" that protect hospitals and doctors who refuse to perform abortions because of their convictions. That's led some Catholic leaders to threaten to close their hospitals if FOCA forced them to provide abortions.
Rhetoric aside, it's not certain that FOCA will move in Congress, much less get passed in its current form. Scholars are divided on whether the current bill actually jeopardizes conscience clauses – though they agree it is too vague.
"Congress should darn well clarify this, because if we don't, we will be back where we were when Roe came down and everyone was thrown into a tailspin," says Robin Wilson, an expert on conscience clauses at Washington and Lee University in Lexington, Va. (Editor's note: The original text misstated Ms. Wilson's affiliation.)
When the Supreme Court legalized abortion, lawsuits began to fly over whether doctors and hospitals could refuse to provide the procedure. Legislators settled the question by passing conscience clauses in 47 states. These seek to balance an individual's or institution's freedom of conscience with patients' access to healthcare.
If FOCA undermines conscience clauses – Ms. Wilson says she's not sure it would – "the floodgates would be opened" for litigation against hospitals and doctors refusing procedures.
Current iterations of FOCA don't mention conscience clauses, but in 1993, the last time there was a push on it, the bill was amended to protect the clauses but ultimately failed.
"It was acknowledged by all sides this was [a danger] of the FOCA. And, in fact, the current FOCA is even broader than that one," says Douglas Johnson, legislative director for the National Right to Life Committee.
The current bill states that "a government may not deny or interfere with a woman's right to choose" nor "discriminate against the exercise" of that right. The words "interfere" and "discriminate" jeopardize conscience clauses for Mr. Johnson.
Conscience clauses tend to protect decisions made by doctors and hospitals, not the state. That leads some experts such as Nancy Berlinger of the Hasting Center, a bioethics research institution, to doubt that FOCA would apply since it is specifically directed at government action.
Lynn Wardle, a law professor at Brigham Young University, sees that argument in principle, not practice. "I'm torn about this because I think good, solid legal analysis would say, no, that's not government action," he says. "But I'm pro-life and that's the way I view it, and this law [would be] enacted by and enforced by people who view any restriction as an interference."
Many faiths oppose abortion, but few of them are so involved in providing healthcare as the Catholic Church. One out of every 6 Americans hospitalized in the US receive care at a Catholic facility.
At a gathering of US Catholic bishops last month, Bishop Thomas Paprocki told the Chicago Tribune: "If Catholic hospitals were required by federal law to perform abortions, we'd have to close our hospitals."
That could leave a hole in the safety net for inner cities and the poor. But the United States Conference for Catholic Bishops (USCCB) is not backing off from its threat.
"I hope it would not come to that, but Catholic hospitals cannot give up their identity," says Deirdre McQuade, a USCCB spokesperson.
The Catholic Health Association, which represents Catholic hospitals, says it plans to fight against FOCA but won't close up shop if it loses. "In many communities, we are the only health facility. We in Catholic health care are not going to dismantle that," said Sr. Carol Keehan, president of the CHA, in a press release.
Both Mr. Obama and the bishops are just playing to an audience, says the Rev. John Paris, a Catholic bioethics expert at Boston College. "[A]ll this rhetoric is so overblown as to be silly," he says. "No political office is going to strike down conscience clauses. That's been in our laws since 1673," when Rhode Island protected wartime objectors.
Underlying that history is the protection of religious freedoms, a principle that would come into play under any interpretation of FOCA invalidating conscience clauses, says Doug Kmiec, a law professor at Pepperdine University.
That's one reason why Mr. Kmiec, an abortion rights opponent who controversially endorsed Obama, doesn't think FOCA is a clear threat to conscience clauses. "[Obama's] approach is to give emphasis to reducing the incidents of abortion," says Kmiec. "My conversations with his [advisers] tell me he's not going to push anything in his legislative agenda that's going to distract him from the economic recovery, certainly for the first year. Beyond that, nobody is saying anything."