The Freedom of Choice Act:
A Radical Attempt to Prematurely End Debate Over Abortion1
Provided by: Denise M. Burke, AUL Vice President of Legal
Affairs
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 Catholic and other
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.
What Can You Do to Bring an End
to This Modern-Day Holocaust?
Clearly, it is our duty as Christians, and
because it is God's Law, our irrefutable obligation as Catholics, to
defend life in all cases. The Holy Father, Pope Benedict XVI
has made it perfectly clear that the church worldwide can never
support abortion or euthanasia. It is therefore incumbent on
each Catholic to not only pledge to remain pro-life, but also to try
to convince as many people as possible to take the same position.
Please refer family members and friends to
this website, and to any others referenced on this page, and to
research the so-called Freedom of Choice Act so you are fully
aware of how its passage could cause irreparable harm to the
sanctity of life.
~Contact
your Congressman or Congresswoman
It is important that we all let our
elected officials know how we feel about the tragedy of
FOCA and demand that they remain
opposed to passage of any such legislation that legalizes murder
and/or penalizes legal and medical professionals who refuse to
commit such crimes against humanity. Call, fax or email your
U.S. Senator or Representative as listed below. Encourage
family and friends to do the same.
*These elected
officials represent the 70791 geographical area.
This is a letter written last fall by Carrolin Rodgers in the
National Writing Project, "letters to the next president".
Carrolin's teacher was pro-choice, until she read Carrolin's
original letter which provided much greater detail about abortions
than is published here. The teacher is now pro-life. Because the
intended audience was students from elementary to high school, the
teacher felt that it was too gruesome, and asked Carrolin to rewrite
it. This is the letter that is now on the national website.
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).
