The "Freedom for Partial-Birth Abortionists Act" --
Pro-Abortion Lawmakers Propose "FOCA" to Invalidate All
Limits on Abortion
by Douglas Johnson
WASHINGTON (April 25, 2007) - In response to the April 18 U.S. Supreme
Court decision upholding the Partial-Birth Abortion Ban Act, prominent
Democratic members of Congress the next day reintroduced the so-called "Freedom
of Choice Act" (FOCA), a proposed federal law to nullify virtually
all federal and state limitations on abortion.
NRLC Legislative Director Douglas Johnson commented, "In the
interests of truth in advertising, the bill should be renamed the 'Freedom
for Partial-Birth Abortionists Act'."
The House bill, H.R.
1964, was introduced by Congressman Jerrold Nadler (D-NY), .
The bill number noted is from the previous legilsative session.
The Senate bill, S.
1173, introduced by Senator Barbara Boxer (D-Ca.), had 13 Democratic
cosponsors.
The bill number noted is from the previous legilsative session.
The lawmakers proposing the legislation, and groups endorsing it,
repeatedly emphasized that the bill would, among other things, completely
nullify the national ban on partial-birth abortion that the Supreme
Court upheld on April 18 in Gonzales v. Carhart.
Congressman Nadler issued a statement harshly attacking the Supreme
Court ruling. "Overturning a decision only a few years old, the
Court has, for the first time since Roe v. Wade, allowed
an abortion procedure to be criminalized," Nadler said. The FOCA,
he noted, "would bar government - at any level -- from interfering
with a woman's fundamental right to choose to bear a child, or to terminate
a pregnancy."
Kim Gandy, president of the National Organization for Women, also
tied the FOCA directly to the Supreme Court ruling, explaining in an
e-mailed alert that the bill "would legislatively reverse the
Court's damaging decision and will enshrine in federal law our right
to safe, legal abortion. . . Our ultimate success depends on electing
a president who will sign the legislation and electing a Congress that
can withstand any challenge or filibuster."
"Those promoting this bill intend to use it as a litmus test
for those who seek congressional office, or the White House, and as
a fund-raising tool," NRLC's Douglas Johnson explained. "They
know they cannot enact anything like this, so long as a pro-life president
is in the White House."
Not Only a "Codification of Roe"
The promoters of the FOCA sometimes claim that its purpose is to "codify Roe
v. Wade," the 1973 Supreme Court decision that legalized
abortion on demand. But the key binding provisions of the bill
would go further than Roe, invalidating all of the major
types of pro-life laws that have been upheld by the Supreme Court
in the decades since Roe.
"The claim that the bill would 'codify Roe' is just a marketing
gimmick by the proponents," explained Johnson. "The sponsors
hope that journalists and legislators will lazily accept that vague
shorthand phrase - but it is very misleading. The references to Roe
in the bill are in non-binding, discursive clauses. The heart of the
bill is a ban that would nullify all of the major types of pro-life
laws that the Supreme Court has said are permissible under Roe
v. Wade, including the ban on partial-birth abortions and
bans on government funding of abortion."
The bill flatly invalidates 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."
This no-restriction policy would establish, in Senator Boxer's words, "the
absolute right to choose" prior to fetal "viability."
The no-restriction policy would also apply after "viability" to
any abortion sought on grounds of "health." The bill does
not define "health," but in some past abortion cases the
Supreme Court has sometimes used the term to apply to any physical
or emotional consideration whatsoever, including "distress."
The term "viability" is usually understood to refer to the
point at which a baby's lungs are developed to the point that he or
she can in fact survive independently of the mother - currently, about
23 or 24 weeks. However, the bill contains no objective criteria for "viability," but
rather, requires that the judgment regarding "viability" be
left entirely in the hands of "the attending physician" -
which is to say, the abortionist.
The bill also prohibits any government actions that would "deny
or interfere with a woman's right to choose to bear a child," but
supporters of the bills have not cited any actual laws that would be
invalidated by that provision.
Effects Admitted by Supporters
In a factsheet posted on its website, the Planned Parenthood Federation
of America (PPFA) explains, "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."
In addition, PPFA explained, "Parental consent or notification
statutes have been used as a tool to deny access to abortion services
for minors. When such laws deny or interfere with the ability of minors
to access abortion services, they would violate FOCA."
(About half of the states have parental notification or consent laws
in effect, which the Supreme Court has said are permitted under Roe
v. Wade as long as they meet certain requirements, including
availability of judges to authorize abortions without parental notification
or consent.)
In a press release issued when she introduced the FOCA in 2004, Senator
Boxer gave a number of examples of current laws that would be invalidated
by the bill, including:
- - Laws restricting government funding of abortion. (The Hyde Amendment
prohibits federal funding of most abortions, and many states have similar
laws. The U.S. Supreme Court ruled in 1980 that these laws do not violate Roe
v. Wade.)
- - Laws prohibiting abortions in public hospitals. (The Supreme Court
ruled in 1977 that such policies do not violate Roe v. Wade.)
- - Laws requiring that girls and women seeking abortion receive certain
information on matters such as fetal development and alternatives to
abortion, and then wait a specified period before the abortion is actually
performed, usually 24 or 48 hours. In her press release, Boxer referred
to these as "antichoice propaganda lectures." (The Supreme
Court said in its 1992 Casey ruling that such regulations are constitutional
as long as they do not impose an "undue burden" on obtaining
an abortion.)
Other Effects
NRLC's Johnson said that a number of other types of laws also would
clearly be invalidated by the bill:
- - All laws allowing doctors, nurses, or other state-licensed professionals,
and hospitals or other health-care providers, to decline to provide
or pay for abortions. (Such "conscience rights" with respect
to abortion are generally protected by certain federal laws, and by
the laws in many states. Supporters of the laws usually call them "conscience
laws," but pro-abortion groups refer to them as "refusal
clauses.")
- - All laws prohibiting medical personnel other than licensed physicians
from performing abortions would be invalid because they may "interfere
with" access to abortion. (All but a handful of states currently
enforce such "doctor-only" laws, which are specifically authorized
in Roe v. Wade itself.)
- - The provision of the FOCA that prohibits any government agency
or official from taking any action that would "discriminate against
the exercise of" the FOCA-created legal rights, with respect to
any "benefits, facilities, services, or information," would
leave government officials open to lawsuits for anything that anybody
thought "discriminate(s)" against abortion. Johnson observed, "This
sweeping mandate could cover everything from rural health clinics,
to health education programs in public schools - and even to pro-life
speeches by public officials."
History of FOCA
An earlier version of the FOCA was pushed by pro-abortion forces beginning
in the late 1980s, when they feared that the Supreme Court was preparing
to overturn Roe v. Wade. When President Clinton, a
FOCA supporter, took office in January 1993, Planned Parenthood predicted
that the FOCA would be law within six months. But the bill died after
an education and lobbying campaign, led by NRLC, persuaded many pro-Roe lawmakers
that the bill went beyond Roe and would strike down many state
laws that had broad support.
Johnson noted that during the debates over the FOCA in the early 1990s,
many proponents of the bill often tried to deny some of its more radical
effects - effects that they have already admitted with respect to the
new bill, such as the invalidation of all restrictions on government
funding of abortion.
The original FOCA faded from view after Republicans took control of
the House of Representatives in the 1994 election.
Information contained in the article above was compiled by the
National Right to Life Committee.
Wisconsin Right to Life has a comprehensive plan to stop FOCA. To find
out how you can help, click the image below, or click
here.