"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: .)
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.