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The Freedom of Choice Act:
Radical Attempt to Prematurely End Debate Over Abortion 1
Denise M. Burke
AUL Vice President of Legal Affairs
November 2008
Nearly two years ago, the public debate over abortion was irrevocably altered. In the landmark Gonzales v. Carhart decision, the U.S. Supreme Court upheld the federal ban on partial-birth abortion and, more importantly, abdicated, at least in part, its role as the “National Abortion Control Board.”
In its decision, the Court signaled an increasing willingness to blunt attempts by abortion extremists to use the federal courts to unilaterally impose their radical agenda. The immediate reaction of activists and some members of Congress confirmed this critical shift.
Abortion advocates, including some members of Congress, hastily recycled the hyperbolic rhetoric of the 1970s. In one public statement after another, they condemned the decision and the Court, predicting--like modern-day Chicken Littles--that the outlawing of abortion was at hand and that women were about to be relegated to “second-class” status. For example, then-Presidential candidate Barack Obama stated, “I am extremely concerned that this ruling will embolden state legislatures to enact further measures to restrict a woman’s right to choose, and that the conservative Supreme Court justices will look for other opportunities to erode Roe v. Wade, which is established federal law and a matter of equal rights for women.”
Recognizing that the federal
courts would no longer be a reliable and viable tool for actualizing
their demands for unlimited and unregulated abortion, abortion
supporters began to look elsewhere for the means to advance their
radical agenda.
In late April 2007, Obama along with Senator Hillary Clinton and
others, immediately re-introduced the federal Freedom of Choice Act
(FOCA), a radical attempt to enshrine abortion-on-demand into American
law, to sweep aside existing laws that the majority of Americans
support-- such as requirements that licensed physicians perform
abortions, fully-informed consent, and parental involvement-- and to
prevent states from enacting similar protective measures in the future.
More importantly, FOCA is a cynical attempt to prematurely end the
debate over abortion and declare “victory” in the face of mounting
evidence that (a) the American public does not support the vast
majority of abortions being performed in the U.S. each year and (b)
abortion has a substantial negative impact on women.
Thirty-five years after Roe, abortion supporters are dismayed that
abortion remains a divisive issue and that their radical agenda has not
been submissively accepted by the American public. Their weapon to
impose their will on the unwilling American public is FOCA.
History of FOCA
Even before Roe v. Wade was decided in 1973, there were attempts by
Congress to legalize abortion. For example in 1970, Senator Robert
Packwood introduced the National Abortion Act, which sought to legalize
abortion nationwide and preempt state laws restricting or regulating
abortion.2 Although the National Abortion Act was unsuccessful, Senator
Packwood later joined with Senator Alan Cranston to introduce the
inaugural version of the Freedom of Choice Act (FOCA) in 1989.3
FOCA was introduced at a time when some in Congress feared that Roe v.
Wade might imminently be overturned (as a result of on-going litigation
over abortion-related laws and restrictions including those at issue in
Planned Parenthood v. Casey), and were seeking a means to prevent
states from enacting laws prohibiting or regulating abortion. FOCA’s
main goals were to create a “fundamental right to abortion” and to
eliminate any federal, state, or local government action (including the
enactment of abortion-related legislation) that limited or “impeded”
access to abortion.
Relying on specific portions of the Supreme Court’s decision in Roe,
abortion supporters argued that FOCA would protect a woman’s right to
an abortion prior to “fetal viability or at any time…to protect the
life or health of the woman” and that states could, within enumerated
limits, enact protective laws that did not interfere with a woman’s
right to abortion.
Over the next several years, substantially-similar versions of FOCA
were repeatedly re-introduced in Congress until 1993, when the
provision allowing states to enact protective legislation was removed.
The 1993 version of FOCA instead included criticism of the Supreme
Court for abandoning the “strict scrutiny standard” (of reviewing
abortion-related laws) for the “undue burden” standard that had
recently been announced in Planned Parenthood v. Casey.4 Notably, under
the new “undue burden” standard, requirements such as informed consent,
reflection periods, and parental involvement for abortion were deemed
constitutional.
After its subsequent re-introduction in 1995, FOCA was not again
introduced until 2004 when it was offered by Representative Jerrold
Nadler in the House of Representatives and Senator Barbara Boxer in the
Senate. In her accompanying press release, Senator Boxer explained that
FOCA would “supersede all other abortion related laws, regulations or
local ordinances5,” which included informed consent laws and any health
and safety regulations imposed on abortion clinics.
The most recent version of FOCA was introduced in April 2007, following
the Supreme Court’s decision in Gonzales v. Carhart, upholding the
federal ban on partial-birth abortion. This most-recent version was
substantially similar to the 2004 version, but also included a section
deriding the Supreme Court’s decision in Gonzalez. Specifically, FOCA
mischaracterized the prohibition of partial-birth abortion as a “legal
and practical” barrier that hindered “the ability of women to
participate in the economic and social life of the Nation.”6 Further,
drawing upon “abortion mythology,” this version of FOCA exaggerated the
numbers of Americans who availed themselves of illegal abortions in the
late 1800’s and early 1900’s, inflating the actual figure of less than
one-hundred thousand to “over one-million.”7
Although expressing as its goal the simple codification of Roe, FOCA
also expressly provided that it would apply “to every Federal, State,
and local statute, ordinance, regulation, administrative order,
decision, policy, practice, or other action enacted, adopted, or
implemented before, on, or after the date of enactment.”8 As Senator
Boxer eloquently explained in 2004, “FOCA [will] supersede all other
laws,” especially those that the Supreme Court has held to be
constitutional under Roe and its progeny.9
What Does FOCA Say?
FOCA provides that “[i]t is the policy of the United States that every
woman has the fundamental right to choose to bear a child, to terminate
a pregnancy prior to fetal viability, or to terminate a pregnancy after
fetal viability when necessary to protect the life or health of the
woman.”
Further, FOCA would specifically invalidate any "statute, ordinance,
regulation, administrative order, decision, policy, practice, or other
action" of any federal, state, or local government or governmental
official (or any person acting under government authority) that would
"deny or interfere with a woman's right to choose" abortion, or that
would "discriminate against the exercise of the right . . . in the
regulation or provision of benefits, facilities, services, or
information."
Clearly, its reach is very broad. This single piece of legislation
would apply to any federal or state law “enacted, adopted, or
implemented before, on, or after the date of [its] enactment.”
What is the Legal Impact of FOCA?
FOCA creates a new and dangerously radical “right.” It establishes the
right to abortion as a “fundamental right,” elevating it to the same
status as the right to vote and the right to free speech (which, unlike
the abortion license, are specifically mentioned in the U.S.
Constitution). Critically, in Roe v. Wade, the Supreme Court did not
define abortion as a “fundamental right.”10 And with the exception of
one justice’s attempt in 1983 to distort the Court’s abortion
jurisprudence by framing the abortion license as a “fundamental right,”
the Court has not subsequently defined abortion as a “fundamental
right.” Thus, FOCA goes beyond any Supreme Court decision in enshrining
unlimited abortion-on-demand into American law.
FOCA would also subject laws regulating or even touching on abortion to
judicial review using a “strict scrutiny” framework of analysis. This
is the highest standard American courts can apply and is typically
reserved for laws impacting such fundamental rights as the right to
free speech and the right to vote. Prior to the Supreme Court’s 1992
decision in Planned Parenthood v. Casey (which substituted the “undue
burden” standard for the more stringent “strict scrutiny” analysis),
abortion-related laws (such parental involvement for minors and minimum
health and safety standards for abortion clinics) were almost uniformly
struck down under “strict scrutiny” analysis. If enacted, FOCA would
retroactively be applied to all federal and state abortion-related laws
and would result in their invalidation.
What is the Practical Impact of FOCA?
In elevating abortion to a fundamental right, FOCA poses an undeniable
and irreparable danger to common-sense laws supported by a majority of
Americans. Among the more than 550 federal and state laws that FOCA
would nullify are:
Partial Birth Abortion Ban Act of 2003
Hyde Amendment (restricting taxpayer funding of abortions)
Restrictions on abortions performed at military hospitals
Restrictions on insurance coverage for abortion for federal employees
Informed consent laws
Waiting periods
Parental consent and notification laws
Health and safety regulations for abortion clinics
Requirements that licensed physicians perform abortions
“Delayed enforcement” laws
(banning abortion when Roe v. Wade is
overturned and/or the authority to restrict abortion is returned to the
states)
Bans on partial-birth abortion
Bans on abortion after viability
. FOCA’s apparent attempt to limit
post-viability abortions is illusory. Under FOCA, post-viability
abortions are expressly permitted to protect the woman’s “health.”
Within the context of abortion, “health” has been interpreted so
broadly that FOCA would not actually proscribe any abortion before or
after viability.
Limits on public funding for elective abortions (thus, making American
taxpayers fund a procedure that many find morally objectionable)
Limits on the use of public facilities (such has public hospitals and medical schools at state universities) for abortions
State and federal legal protections for individual healthcare providers who decline to participate in abortions
Legal protections for religiously-affiliated
hospitals who, while providing care to millions of poor and uninsured
Americans, refuse to allow abortions within their facilities
Notably, pro-abortion groups do not deny FOCA’s draconian impact. For
example, Planned Parenthood has explained, "FOCA will supercede
anti-choice laws that restrict the right to choose, including laws that
prohibit the public funding of abortions for poor women or counseling
and referrals for abortions. Additionally, FOCA will prohibit onerous
restrictions on a woman's right to choose, such as mandated delays and
targeted and medically unnecessary regulations."
State FOCAs
Seven states have enacted versions of FOCA, further entrenching and
protecting the “right to abortion” in those states: California,
Connecticut, Hawaii, Maine, Maryland, Nevada, and Washington.
Conclusion
Clearly FOCA will not make abortion safe or rare – on the contrary, it
will actively promote abortion and do nothing to ensure its safety –
so, abortion advocates’ unrelenting campaign to enact FOCA is a
“wake-up call” to all Americans. If implemented, FOCA would invalidate
common-sense, protective laws that the majority of Americans support.
It will not protect or empower women. Instead, it would protect and
promote the abortion industry, sacrifice women and their health to a
radical political ideology, and silence the voices of everyday
Americans who want to engage in a meaningful public discussion over the
availability, safety, and even desirability of abortion.
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Endnotes
1. This article – in substantial part -- was previously published by
the Culture of Life Foundation. See Denise Burke, "The Freedom of
Choice Act: Imposing Unregulated Abortion on Americans" at
http://culture-of-life.org//content/view/490/96/ (last visited
November 4, 2008).
2. Johnsen, Dawn E., "Functional Departmentalism and Nonjudicial
Interpretation: Who Determines Constitutional Meaning?" Law and
Contemporary Problems, Supra note 152, available at:
http://www.law.duke.edu/shell/cite.pl?67+Law+&+Contemp.+Probs.+105+(summer+2004)
(last visited November 4, 2008).
3. See S. 1912, 101st Cong. (1989); H.R. 3700, 101st Cong. (1989).
4. See Planned Parenthood v. Casey, 505 U.S. 833 (1992) and S. 25, 103d Cong. (1993); H.R. 1068, 103d Cong. (1993).
5. National Right to Life, Senator Barbara Boxer 2004 Press release,
available at:
http://www.nrlc.org/FOCA/FOCA%20Boxer%20press%20release.pdf, (last
visited November 4, 2008).
6. See S. 1173, 110th Cong. (2007); H. R. 1964, 110th Cong. (2007).
7. Nathanson, Bernard. (PHD), "Confessions of an Ex-Abortionist",
available at: http://www.aboutabortions.com/Confess.html (last visited
November 4, 2008).
8. See S. 1173, 110th Cong. (2007); H. R. 1964, 110th Cong. (2007).
9. http://www.nrlc.org/FOCA/FOCA%20Boxer%20press%20release.pdf (last visited November 4, 2008).
10. See City of Akron v. Akron Ctr for Reproductive Health, 462 U.S.
416, 420 n.1 (1983) (majority opinion authored by Justice Powell).
[http://www.aul.org/foca]
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Abortion 
