Melinda Henneberger worries that 1) Obama will sign the “Freedom of Choice Act” (FOCA), which pre-empts state abortion restrictions; 2) that these restrictions will also pre-empt “freedom of conscience” laws that exempt (among others) Catholic hospitals from requirements that they provide abortions; and 3) this would be a very bad thing, because expanding health care requires Catholic hospital participation and Obama’s cultural campaign to reduce abortions should not take this route. (h/t Sullivan).
At the very moment when Obama and his party have won the trust of so many Catholics who favor at least some limits on abortion, I hope he does not prove them wrong. I hope he does not make a fool out of that nice Doug Kmiec, who led the pro-life charge on his behalf. I hope he does not spit on the rest of us—though I don’t take him for the spitting sort—on his way in the door. I hope that his appointment of Ellen Moran, formerly of EMILY’s List, as his communications director is followed by the appointment of some equally good Democrats who hold pro-life views. By supporting and signing the current version of FOCA, Obama would reignite the culture war he so deftly sidestepped throughout this campaign. This is a fight he just doesn’t need at a moment when there is no shortage of other crises to manage.
I have some sympathy with this argument, but it overlooks what might be called the equal and opposite problem: in many states, the Catholic Church is acquiring other hospitals through mergers, and then restricting abortions in hospitals that used to provide them. This is not a one-time occurrence; it is becoming a highly significant problem. Catholic hospitals are also restricting access to contraception and other related services.
In other words, the economics of America’s dysfunctional health care system might prevent what one might call (even without irony) Henneberg’s “live-and-let-live” proposal. There seems to be no neutral baseline upon which to ground a modus vivendi (again, so to speak). I don’t have an answer to this offhand, but we shouldn’t pretend that this is a matter of simply refusing to “reignite a culture war.” The ground is shifting beneath our feet.
Author: Jonathan Zasloff
Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees.
Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses.
Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.
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