FOCA

Freedom of Choice Act Will Not Inhibit Protection from Coerced and Unsafe Abortions Act

• Abortion has been enshrined as a federally guaranteed constitutional right, part of which includes the “imperative” right to full disclosure (Danforth, at 67). The Federal Government has an interest in protecting the civil and constitutional right to full disclosure which can only be given after comprehensive screening for statistically validated risk factors.

Questions for Legislative Hearing

• New scientific evidence about the dangers of abortion to women and embryonic development may have a profound influence on abortion law. Moreover, Roe v Wade presumed that doctors would act in the best interests of their patients. But has this been the case, or are abortion providers frequently guilty of taking advantage of women in crisis situations? Indeed, what is the standard of care that should apply to abortion? Are abortion clinics operating according to the ideal standard of care for screening, full disclosure, individualized counseling based on individual risk factors and health needs, protection from coercion, and the formulation of informed medical recommendations.

• What is the proper standard of care for screening of risk factors and for full disclosure of risks and alternatives?

• The best available medical evidence based on large-scale record based studies have now shown that abortion, even in the first trimester, is associated with higher death rates among women than childbirth. According to the standard set in Roe, the states have a right to regulate abortion to protect women’s health whenever the risks of abortion outweigh the risks of childbirth. How does this new scientific evidence affect what states can and should do to protect women from unnecessary or unsafe abortions even within the confines of Roe?

• When is a physician legally or ethically obligated to refuse a contraindicated abortion? Sylvia Stengle, executive director of the National Abortion Federation, which represents abortion clinics, admitted in a Wall Street Journal interview (October 28, 1994) that at least one in five patients (probably a low estimate) are at psychological risk from abortion due to prior philosophical and moral beliefs contrary to abortion. In short, because of external pressures, they are aborting in violation of their consciences. Stengle admits that "It's a very worrisome subset of our patients. Sometimes, ethically, a provider has to say, 'If you think you are doing something wrong, I don't want to help you do that.'" Actually, it should be more than an ethical obligation. Researchers on both sides of the issue agree that women who abort against their conscience are more likely to suffer greater degrees of guilt, depression, impacted grief, and other psychological problems. I would argue that this, among other high risk factors, is a contraindication in which case the physician would be obligated to refuse to perform the abortion, because it poses too much danger of hurting more than helping, or to provide extensive counseling prior to the procedure.

• What should the standard be for counseling with regard to moral beliefs and how should counselors assist a woman who believes that she is aborting a human life? Charlotte Taft, an abortion clinic counselor was fired for requiring patients to confront the issue of saying "goodbye" to their baby. Does her position represent a standard that all clinics should be meeting, especially given the Court's opinion in Casey which states: “It cannot be questioned that psychological well-being is a facet of health. Nor can it be doubted that most women considering an abortion would deem the impact on the fetus relevant, if not dispositive, to the decision.... [This information] furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed.”

• If the state may not impose a view of when life begins on women, are statues or court rulings which exclude wrongful death claims for the death of an unborn human fetus invalid if, in the woman's mind, she believes her unborn human fetus is a "life," a "person" or a "child?" In other words, Roe does not declare the unborn non-persons, but requires states to leave this determination to the opinion of the woman, in consultation with her physician. Should not this subjectivism, then, cut both ways? If a woman grants personhood to her unborn child, is not the state obligated to grant the protections due to all born persons to her unborn child? If it does not, isn’t the state imposing a view of human life on her and her child in violation of the principles of Roe and Casey which give the mother alone the right to define when her fetus constitutes a human life?

• Many women consent to abortion only under coercion. If asked, they would state that they believe their unborn child is a human life and that abortion is a form of murder. Their consent under address to have abortion therefore involves a violation of conscience. Does the state have a right to protect women from a violation of conscience? Does the doctor have an obligation to refuse to perform an abortion that violates a woman’s conscience. If a woman believes that her pregnancy involves a human life, does this constitute her grant of personhood to her child and therefore invoke the duty and right of the state to protect her child’s life? If the Court reserves to women the subjective right to grant or deny their unborn child’s access to legal protection, under what circumstances, if any, may the protection of life be withdrawn even though the woman believes her child is a human life but is consenting to abortion only under duress? If the abortion is done in such a case because the abortionists fails to determine that her consent is in congruence with her philosophical and moral beliefs about when human life begins, should she be entitled to hold the abortionist liable for the wrongful death of the child to whom she granted personhood.?

• How are physicians exercising their basic responsibility to protect their patient’s health? Are they adequately screening patients and recommending abortion as the safest course of action, or are they merely letting women self-prescribe abortions which may be contraindicated and dangerous given their individual circumstances? (In describing the duties and obligations of the physician, the Court has been very clear. Abortion is a medical procedure which physicians are free to provide when, in consultation with their patients, it is medically determined to be in their patient's health interests. This important distinction was made in Roe where the Court concludes its decision with the emphatic statement that "the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician." [Italics added])