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I read the article you linked and do not come away with the same reaction you do. First, Cathleen Kaveny is no “unbiased” legal analyst. She is one of a trio of notorious (to faithful Catholics) legal “scholars” who came out in 2008 in support of Obama for President as supposedly the more “pro-life” of the two major candidates - the other two scholars being Douglas Kmiec and Nicholas Cafardi. (Cafardi resigned from Franciscan University of Steubenville’s Board of Visitors in the wake of the denunciations that followed his Obama endorsement.) George Wiegel - as well as many Bishops - refuted their sophistries quite convincingly in Newsweek, among other places. Kaveny also wrote an article in a Jesuit magazine last year contending that the concept of “intrinsic evil” as applied to abortion is unhelpful and essentially meaningless to Catholics making their voting decisions because the Church has used “intrinsic evil” to refer to other things, too, like contraception. Kaveny was able to make this argument only by omitting to state (either deliberately or, giving her the benefit of the doubt, negligently) the Vatican’s consistent and prominent insistence that abortion is an evil of a different and significantly higher degree than other evils, including contraception.
But let’s look at her article on the merits. The most she can say is that it’s unclear how the courts would interpret FOCA when faced with a civil action seeking to enforce the rights it confers. She suggests that the Courts might interpret FOCA’s statutory clause “interfere” [with the woman’s abortion right] as equivalent to placing an “undue burden” on that right, which is the standard applied by the Supreme Court in Planned Parenthood v. Casey; and if they did so, existing limits on the abortion right, which were found not to offend the “undue burden” standard, would remain intact.
The problem is that FOCA does not use the phrase “place an undue burden.” Rather, it uses the phrase “interfere.” I don’t know about you, TMC, but I happen to be a lawyer, and a litigator, and a former clerk for federal judges at both the trial and appellate levels, and happen to have learned something about statutory construction from more than two decades work as a lawyer. There is scant reason, if any, to expect that courts faced with a FOCA lawsuit would make the plaintiff clear the higher hurdle of “undue burden” when the legislation itself does not use that language but instead only uses the term “interfere.” The plaintiff would most certainly contend (perhaps with Kmiec, Kaveny & Cafardi supporting the plaintiff in an amicus brief) that “if Congress wanted us to have to show ‘undue burden,’ with all the Supreme Court trappings thrown up around that term in its abortion cases, Congress knew how to say so; but it did not. Therefore, we should be required to show only that the right to abortion has been ‘interfered’ with – which is and ought to be treated as a much lower burden of proof.” Even Kaveny, in her article, can only bring herself to say it’s “muddled” what the result would be. An unbiased, objective legal analyst would say that, while it may not be 100% certain, it’s certainly highly probable that the plaintiff’s burden would be much lower, if FOCA were passed, than the “undue burden” standard. Indeed, as Kaveny herself recognizes in her quotes from FOCA’s backers, that’s exactly the purpose of the legislation. Much ado about nothing? Nonsense!
You say “many solid and unbiased legal scholars” have looked at FOCA and concluded it’s much ado about nothing. Name them, and also supply your basis for calling them unbiased.
as analyses is usually done for the good of whomever is writing them.