Brave new fundamentalism unfurled
It is an axiom that Illinois politics and politicians are dirty, corrupt, factious and belligerent. Indicted governors, crooked mayors, a budget so broke even MacGyver couldn’t salvage it into anything helpful — to study IL politics is to long for a return to blissful ignorance. Not even Obama in all his splendor can cover over this multitude of sins and sinners.
And yet, in the face of the worst economic turn-down since at least the 30s, in the face of an $11.5 billion IL budget deficit, despite last year’s absurd budget fiasco of earmarks and in-fighting and childish squabbling, the Illinois General Assembly is considering passing a fiscally, legally, morally irresponsible bill concerning abortion.
Right now the Illinois General Assembly is considering passing HB 2354, entitled the Reproductive Health and Access Act. Illinois already has fewer abortion restrictions than most states. As the bright blue bedrock in the red Midwest, IL stands in stark contrast to its neighbors, lacking laws pertaining to informed consent, waiting periods, parental notification [and so forth] that most other states have deemed necessary. Americans United for Life believes that only nine states have worse records than IL for defending life.
It appears the IL General Legislature is shooting for dead last.
At this moment, I’m not here to argue Roe v. Wade or ‘right to privacy’ or when life begins. If you’re even vaguely pro-life, you are already opposed to this bill.
I’m here to argue that even if you’re pro-choice you should be against this bill. Rather, if you’re pro-choice because in your mind this is what is best for women and society you should be against this bill. If you’re an ideologue [and make no mistake, they exist on both sides], then you want to ‘win’ at any cost and will furiously support this bill regardless of the negative consequences it will surely have.
This is quite simply bad legislation, for many reasons and by nearly any standard, so I’ll just discuss two particularly egregious clauses.
The abortion debate is often framed purely as a health issue for women, a necessary option to maintain her emotional and physical well-being.
Section 25A states, “A qualified medical professional is not liable for civil damages or subject to criminal penalty relating to a pregnancy termination performed in good faith.” Thus abortion doctors — or rather, “a person licensed to practice medicine in all of its branches,” which may or may not include nurses, technicians, etc — will enjoy a greater legal freedom from liability than virtually any other medical professional.
Since an abortion doctor’s vulnerability to litigation depends on the unclear and undefined concept of ‘good faith,’ I imagine it will become nearly impossible to sue for a botched abortion. This immunity from the law, above and beyond that afforded to other procedures, is remarkably flagrant. In addition, it seems as though it’s putting the health of the woman last rather than first. Is this the ’safe, legal, and rare’ we’ve been promised was the healthiest ‘compromise’ for this issue?
[I suspect this provision was included to spur more young doctors into this field. The continuing advancements in ultrasound technology and embryology research have resulted in an increasing reluctance of young medical professionals to embark on this career].
Section 35 deals with patient access and is a bit more difficult to parse down for summary, but basically individuals who object to participating in abortion may do so only if they fulfill four separate criteria. The criteria essentially amount to the state mandating that if you personally do not want to participate in abortion, you must help the woman find someone else who will. Thus the right for an educated and qualified medical professional not to support what she views as murder only stretches far enough for her to refuse personal participation while decreeing she must at least be involved in the chain of referral and concurrence.
I find these sorts of laws incredibly disrespectful. Why a woman’s dubious right to an invasive and highly contested medical procedure should trump the personal convictions [and Hippocratic oath] of every medical professional she meets is beyond absurd. Is there any other medical procedure in which the doctor is required to figure out for you how to obtain an operation he himself does not feel comfortable performing?
There is a systematic refusal from pro-choice quarters to acknowledge the slightest legitimacy of the pro-lifer’s claim of life in the womb. But 72% of Americans believe that abortion should be illegal from the second trimester on and 86% of Americans believe abortion should be illegal in the third trimester. Presumably, they believe this is a life and deserves to be protected. Laws like HB 2354 prefer to strike any confusion from the record by steamrolling over the majority opinion and demanding that this woman get her abortion.
There is also a clause mandating ‘prior written notice’ to patients and employers. I’m not sure what that would mean practically applied [how prior, how public, do you have to wear a button next to your nametag that says 'I refuse to choose?'], and unfortunately no one in my representative’s office seems to know either — though he is a co-sponsor of the bill. In fact both times I called his office the person with whom I spoke told me if I wanted to ask specific questions about the bill I should talk to the person who originally sponsored it, indicating that co-sponsorship in the IL Senate means even less than it does in the UN.
[Still waiting for that call back, Rep. Miller.]
This is far-reaching and overbearing legislation at its finest. Because Section 20 promises “financial assistance for reproductive healthcare at least to the same extent as other comparable services,” the ILGA is also adding an unnecessary and unpopular burden to our already fiscally drowning state.
Why?
There are two motives driving the supporters of this bill. First, Planned Parenthood stands to gain a great deal of revenue and their IL lobbying arm is particularly strong, even by PP standards. It is no secret they engineered this legislation.
The second motive is ideological. Abortion is fought at the extremes. Activists tend to be strong advocates of either an all-or-nothing approach. Every incremental decision is greeted as either a massive victory or a heartbeaking defeat. The past eight years held a great deal of frustration for the pro-choice side, and now the time is finally ripe for vicious and bloody payback. This legislation, however, and its federal counterpart, the Freedom of Choice Act, do not merely recoup the ground lost during the Bush years. They go about as far as they can go.
This is unfettered abortion on demand, your tax monies footing the bill and your qualms and scruples ignored, denied, and forgotten. No restrictions, no limits, no room for doubt.
This legislation is for the extreme pro-choicers, the very small minority who support radically unconstrained abortion. It is not an accurate representation of what people want. It does not even pretend to be. It is a bitter and resentful retort to the last eight years.
This impulse may be understandable but it is also foolish. HB 2354 is terrible legislation, and mandates cannot last forever. There is not even a shadow of the compromise and bipartisanship the blue party’s standard-bearer has promised us so many times.
Is this the bold new era of fiscal restraint and mutual respect that our current political and economic climate demands?
No. This is the same old story of interest group politics and ideological hubris at the expense — in every sense — of all others.
Comment by Brandon on 23 March 2009 at 10:44 am:
Do you care about nothing other than abortion?
Ok. Let’s see here. The good faith clause (25A) appears to bar civil suit from people who have buyer’s remorse, or at least that seems to be the intention. It’s not very well drafted though, so there is the chance it could be interpreted more broadly. If it’s the former I’m not sure what the complaint is, if the latter then the complaint is sensible.
Section 35 makes sense in rural areas or low-income areas because people might not have access to other providers. Of course this doesn’t solve the transportation issue, but I’m guessing that the goal is increased information because most people know their own doctor and no others.
Just as you ask “Why a woman’s dubious right to an invasive and highly contested medical procedure should trump the personal convictions [and Hippocratic oath] of every medical professional she meets is beyond absurd,” we can flip it on its head and get a different feel. Why should a doctor be able to withhold valuable information from a woman who wants to have a medical procedure performed? The reason doctor’s aren’t forced to give similar information for other procedures is that there really aren’t many other procedures that are anywhere near as contentious.
Really don’t talk about “a systematic refusal from pro-choice quarters to acknowledge the slightest legitimacy of the pro-lifer’s claim of life in the womb.” It goes both ways. Pro-lifers tend to play down the fact that a solid majority of Americans support abortion rights in quite a number of circumstances. The language you use puts you pretty firmly on one side of the debate, but only about 1/5 of Americans oppose abortion in all circumstances. The rest are divided more or less evenly between those who want it generally available and those who want some additional restrictions. Of course the issue is highly obfuscated because a) most people have very little idea about how widely or not widely available abortion is and b) each state makes its own supplemental laws so what people really want is state laws to modify the federal abortion jurisprudence.
Comment by Fran Eaton on 23 March 2009 at 11:36 am:
Congrats on a great piece, Brenda. With John Bambenek’s recommendation, we’ve featured on Illinois Review today!
http://illinoisreview.typepad.com/illinoisreview/2009/03/prochoicers-should-oppose-ils-foca-.html
Comment by Brenda Kay on 23 March 2009 at 1:07 pm:
Brandon,
Fair point. I anticipated that response from someone, but since HB 2354 will likely be voted on this week, decided to post about it anyway and content myself with promising to write on something else next time. Actually considering the number of times you’ve randomly referenced Puerto Rican government sterilization 60 years ago — which is clearly a less salient issue today than abortion — I just didn’t think you’d be the person to call me out.
You agree with me that section 25A is poorly drafted. If for nothing else then, you should be against this bill. We both know poorly drafted legislation creates more problems than it solves, so the legislators should rethink this one.
You are not addressing my arguments concerning section 35. I argue that it is not the duty of any and every doctor to make sure women get abortions if they want them. And your hyphotheticals concerning ‘valuable information’ are unclear. What is this information? Are there really women out there who are unaware of the abortion option? If not, you must just be addressing where they can procure an abortion and you are advocating penalizing doctors for ‘withholding’ information found in phonebooks and google searches. Do you really think it is the responsibility of every pro-life doctor to be keeping tabs on the nearest abortion facility and be ready to hand out the phone number? Does the fact that she believes abortion is murder mean absolutely nothing every time some confused pregnant woman knocks on her door?
You’re absolutely correct that abortion is one of the most contentious procedures on the market. Perhaps this means that no one should be forced to participate in one. Perhaps it is a contentious procedure for a reason.
I will reference the unreasonableness of pro-choicers as I see fit. I used the word ‘fundamentalism’ for a reason. Pro-lifers are consistently painted as angry ideologues; I cannot deny these exist within our ranks but I submit the other side is just as bad if not worse and yet consistently gets a free pass from the media. I used the statistics I did to show that current abortion law — legal throughout the entire pregnancy — already allows abortion to a significantly greater extent than people want and instead of rectifying this dissonance, HB 2354 is taking this ‘right’ even further.
Comment by John Monchhichi on 24 March 2009 at 2:10 pm:
First, I have no idea what relevance these poll numbers as to the opinions of all Americans on aboriton hold. Illinois law has no jurisdiction over most Americans. If you had poll numbers as to what Illinoisians think of abortion, those would be germane to the discussion
Second, I think Brandon makes some good points. Simply because some sections are poorly drafted does not mean that on balance it is a bad bill. No doubt interpreting it will be some work for the IL Supreme Court. As happens with all laws, ambiguities are fixed with case law and if the legislature does not like the way the courts interpret the law, they can fix it themselves. Certianly it would be better if bills were clear, but lack of clarity does not make the bill automatically bad.
Finally, the abortion issue is one in which moderate positions don’t really make a lot of sense. Either the fetus is a human life worthy of human rights or it isn’t. If it is, then the only morally acceptable position is completely and unapologetically pro-life, no exceptions except possible life (not health, but life) of the mother. If the fetus is not human life, then the sole goal is to guarantee access to a medical procedure to all who need it. I don’t see a particularly compelling argument that this bill does not succeed in furthering this latter goal.
Comment by Tim on 24 March 2009 at 2:48 pm:
Mr. Monchhichi,
To suggest that moderate positions on abortion have no value is ignorant of 30+ years of the courts’ opinions on such matters. Even in Roe, the Court placed a much lower restriction on the government regulating post-viability abortions.
From my observation, even those who believe in broad abortion rights believe that post viability abortions present a serious problem. Courts have refused to strike down laws banning them unless there is an exception for the life of the mother, however.
I think it’s clear to anyone who doesn’t have a preconceived opinion on the abortion debate to see that the courts have taken a middle ground in a lot of cases. Whether or not a fetus has “human rights” worthy of government protection seems to have been well-debated and written down in our laws and court opinions.
Comment by John Monchhichi on 24 March 2009 at 4:37 pm:
Tim,
The non sequiturs in this argument leave you chasing your tail. First, I stated that moderate positions don’t make a lot of sense in this debate. Your first non sequitur is that “don’t make a lot of sense” is equal to “have no value.” It is not. Your second non sequitur is that if an argument it is in a court opinion, it must have value. This is also false.
On the upside, you provide a prime illustration of this second point by citing the well worn yet philosophically vapid viability test that SCOTUS seems to think is important.
It is correct to say that courts have have taken a middle ground in a lot of cases. It is also correct to say that those opinions don’t make a lot of sense.
I am curious as to what you think my “preconcieved opinion” on the abortion debate is, as you seem to have concluded that I have one.
Comment by Brandon on 24 March 2009 at 5:15 pm:
We all know you’re the product of a botchie Monchichi. It’s ok. I love you anyway.
Comment by John Monchhichi on 24 March 2009 at 5:41 pm:
And I love you, Brandon, so much so that it is a rare occassion indeed that I wish the umbilical cord had wrapped all the way around your neck.
Comment by Tim on 30 March 2009 at 2:41 am:
Monchhichi,
I didn’t mean to imply that you had a “preconceived opinion” on the issue, and it is inconsequential to my point as to whether you do or not. I am rather neutral on this issue, if for no other reason than as a matter of law, it is completely irrelevant what I think simply because I possess a y chromosome, but you need not be.
I think there is a lot of “sense” to come out of many years of all the noise made in Washington about abortion, because the issue is not black and white as you suggest. This explains at least some of the mixed opinions from courts on this issue. I also think that all of it has no value. In the big picture, abortion adds nothing to our law. I’ve yet to find any valuable precedent that extends outside of this issue in any abortion case on any level.
I think the law has a long way to go on this issue, but as the author of this blog entry mentioned, “mandates cannot last forever.” The only way there is going to be any legitimate analysis of this issue, in my perception, is if abortion cases lose their apparent uniqueness in constitutional law. When that occurs, I think the more moderate positions on abortion, whatever they may be, may gain the necessary traction. Until that day, what continues is a climate of extremes–but that does not mean that said climate reflects the viewpoints of all Illinoisians.
And while I agree that the statistics quoted by the author do not infer anything about the smaller population of only those within the jurisdiction of this state, I also doubt that properly sampled poll of Illinoisians would deviate “significantly” (I mean that in the common usage, not the statistical meaning) from that of national polls. I suspect, if you had that data, the distribution would look an awful lot like a distribution of Americans polled in that manner.
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