Legislation / Court Cases

FOCA: The Freedom of Choice Act (2008)

The Freedom of Choice Act:
Endangering Women and Silencing the Voices of Everyday Americans

By Denise M. Burke
AUL Vice President & Legal Director
June 2008

“The first thing I will do as President is sign the Freedom of Choice Act.”

— Senator and Presidential Candidate Barack Obama

July 17, 2007, Address to the Planned Parenthood Action Fund

 
In the days after the U.S. Supreme Court’s historic decision in Gonzales v. Carhart, upholding the federal ban on partial-birth abortion, Senator Barack Obama, along with Senator Hillary Clinton and others, introduced the federal Freedom of Choice Act, 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, the Freedom of Choice Act 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, like Senator Obama, are dismayed that abortion remains a divisive issue and that their radical agenda has not been submissively accepted by the American public. Rather than confronting legitimate issues concerning the availability and safety of abortion, they choose to blatantly ignore the concerns and interests of everyday Americans, as well as the growing evidence that abortion hurts women. In his address to Planned Parenthood last summer, Senator Obama indicated that he is “absolutely convinced that culture wars (including the on-going debate over abortion) are “so nineties,” and that it is “time to turn the page” since he and other abortion supporters are “tired about arguing about the same ole’ stuff.”

Their tool of choice to end the public debate over abortion is the Freedom of Choice Act (FOCA), an alarming single piece of legislation that would nullify virtually every state and federal law that regulates or places limits on abortion.

History of FOCA

FOCA was first proposed in the late 1980s, when abortion proponents feared that the U.S. Supreme Court was poised to overturn Roe v. Wade. Since then, pro-abortion politicians have routinely pledged support for FOCA and promised, if elected, to push for the enactment of this dangerous legislation to the delight of its supporters.

For example, when Bill Clinton took office in January 1993, Planned Parenthood (and others) gleefully predicted that FOCA would be the law of the land within six months. However, the legislation languished after Republicans took control of Congress in November 1994.

Since the early 1990’s, pro-abortion members of Congress have, from time-to-time, reintroduced FOCA. In 2004, Senator Barbara Boxer introduced the legislation, publicly arguing that popular laws requiring that women be fully informed about the risks and alternatives abortion, mandating a teenager involve her parent or guardian in her abortion decision, and limiting public funding and the use of public facilities for abortions should be invalidated.

Upon its reintroduction in April 2007, proponents of FOCA railed against the U.S. Supreme Court’s decision in Gonzales and argued that FOCA was simply a codification of the principles enunciated in Roe v. Wade. This assertion is blatantly untrue and intentionally deceptive. FOCA goes far beyond Roe, envisioning a nation with no meaningful regulation of abortion and seeking to undo years of progress made in protecting women and their children from the negative consequences of abortion and in reducing abortion rates (by nearly 20% in the 1990’s).

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, FOCA’s 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, the U.S. Supreme Court has never (in Roe v. Wade or in any subsequent decision) defined abortion as a fundamental constitutional right. Thus, FOCA goes beyond any U.S. Supreme Court decision in enshrining unlimited abortion-on-demand into American law.

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 federal and state laws that FOCA would nullify are:

    * Informed consent laws
    * Waiting periods
    * Parental consent and notification laws
    * Health and safety regulations for abortion clinics
    * Requirements that licensed physicians perform abortions
    * 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
    * Legal protections for individual healthcare providers who decline to participate in abortions
    * Legal protections for Catholic and other religiously-affiliated hospitals who, while providing care to millions of poor and uninsured Americans, refuse to allow abort

ions within their facilities

Notably, pro-abortion groups do not deny FOCA’s draconian impact. For example, Planned Parenthood has explained, “FOCA will supersede 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.”

Thus, under FOCA (as introduced and supported by Senator Obama and other pro-abortion members of Congress), a 12-year old girl could have a late-term abortion performed on her by an under-qualified non-physician without her parents’ knowledge. The parents would have no opportunity to speak with the abortion provider about their daughter’s medical history, and they would have no opportunity to make arrangements for her follow-up care.

Clearly FOCA will not make abortion safe or rare — on the contrary, it will actively promote abortion and do nothing to ensure its safety.

Conclusion

FOCA is a tremendous threat to the rights of everyday Americans, to women, and to the unborn. Once implemented, it would invalidate laws that protect the rights, health, and safety of women and their unborn children and endanger the constitutional rights of healthcare providers and religious organizations and employers. Conversely, FOCA protects and promotes the abortion industry and takes away the ability of the American people, through their elected representatives, to engage in meaningful public debate over abortion.

Senator Obama’s bold promise to Planned Parenthood shows that he cares very little about the well-being of women or about truly ending the debate over abortion in America.
[http://www.aul.org/FOCA, 2008; Pro-Life America Daily News, 11June08, http://www.prolifeamerica.com/commentaries/]

Americans United for Life (AUL) is a nonprofit, public-interest law and policy organization whose vision is a nation in which everyone is welcomed in life and protected in law. The first national pro-life organization in America, AUL has been committed to defending human life through vigorous judicial, legislative, and educational efforts at both the federal and state levels since 1971. The Wall Street Journal has profiled AUL, and PBS's Frontline program chronicled our successful efforts in Mississippi.