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Catholic Wars

A Commentary by Susan Estrich

Friday, March 19, 2010

The nuns are right. The bishops are wrong.

I know what you're thinking: Who am I, a nice Jewish girl from Lynn, to be telling bishops and nuns who is right?

If this were a theological question, I'd agree; I wouldn't go near it. But the current war raging inside the Catholic establishment has nothing to do with theology and everything to do with law. On the latter topic, I have a few decades of experience under my belt.

The nuns who run the Catholic Health Association and Catholic hospitals across the country have come out in favor of the president's health bill based on their view that the Senate bill, like the House bill, prohibits the use of federal funds to finance abortions. The Conference of Bishops, on the other hand, is pushing hard to defeat the bill, not because they oppose national health insurance (they don't), but because they read the Senate bill to allow federal funding of abortions.

Does it? Law professors everywhere are weighing in. Best as I can tell, they're saying what I'm saying: Neither bill allows federal funding of abortion. Both bills say that. The Senate bill, which is the one the bishops are attacking, repeatedly references the Hyde Amendment, a decades-old law that prohibits federal funding even of "medically necessary" abortions for poor women.

A very good case can be made (and we tried) that if a woman has a constitutional right to choose (and she still does), then the government has no business trying to influence that decision by funding pregnancy and childbirth but not abortion. Sure, you have a right to choose. But if you pick vanilla, I'll buy you the cone; chocolate, you're on your own. Even a child would throw up their hands if you called that their "choice."

When it comes to other fundamental rights, like speech or religion, the government is required to be neutral. The easiest way to win those cases is to even suggest that the government is in the business of content regulation.

So why the content of this choice?

From a strictly economic point of view, funding abortion is a lot less expensive than paying for prenatal care and childbirth, not to mention the question of who provides for the unwanted child once born. It was Rep. Barney Frank, D-Mass., who once chided opponents of abortion funding, claiming their concern with life began at conception and ended at birth.

But we lost -- Barney and me and all my friends in the pro-choice movement. We lost then, when the Hyde amendment was enacted and upheld and repeatedly reaffirmed. And we lost again last fall, when anti-abortion members of both the House and the Senate insisted on anti-abortion language in both the House and the Senate bills -- and got it.

So what's the problem?

The Senate bill provides for additional funding for community health centers. Community health centers don't perform abortions. Longstanding regulations, which could be changed only with great difficulty, and which no one is trying to change, prohibit it. The new money, like the old money, is governed by those regulations.

Health and Human Services Secretary Kathleen Sebelius, along with the president, House Speaker Nancy Pelosi and Majority Leader Harry Reid, have all affirmed that those regulations bar abortion funding. But, the bishops ask, what if someday, somehow, someone tried to change those regulations? Then the new money included in the Senate bill might be used for abortions. On that logic, community health clinics should all be de-funded right now, because someday the regulations might change, even though no one is trying to change them.

I understand why Republicans are against the bill. I understand why insurance companies are against the bill. But the bishops? They won the abortion funding fight. Maybe they have another agenda here, one that even the nuns don't see. But as best as I can tell, what they're really doing is trying to grasp defeat from the jaws of victory.

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