The Freedom of Choice Act:

Endangering the Unborn, Women, and Catholic Health Care

 

By Denise M. Burke

AUL Vice President of Legal Affairs

 

This article was originally published in Ethics & Medics 34.2 (February 2009): 1–3 © 2009 The National Catholic Bioethics Center. All rights reserved. Reprinted by permission.

 

In April 2007, 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 arbiter of abortion policy. The decision also signaled the Court’s increased willingness to blunt attempts by abortion extremists to use the federal courts to impose their radical agenda. The immediate reaction of abortion advocates confirmed this critical shift.

 

Abortion supporters, including members of Congress, hastily recycled the hyperbolic rhetoric of the 1970s. In one public statement after another, they condemned the ­de­- cision 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. Recognizing that the federal courts would no longer be a reliable tool for actualizing their unyielding desire for unlimited and unregulated abortion, abortion supporters began looking elsewhere for an effective means to advance their radical agenda.

 

Immediately, abortion supporters in Congress re-­introduced the federal Freedom of Choice Act (FOCA), a radical and sweeping attempt to enshrine abortion-on-­demand into American law, to eliminate existing laws that the majority of Americans support—such as requirements that only licensed physicians perform abortions, that women give fully informed consent, and that young girls have parental involvement—and to prevent states from enacting similar protective measures in the future.

 

Later, in July 2007, in a response to a question about how he would ensure the protection of “women’s rights,” then-Presidential candidate Barack Obama promised the Planned Parenthood Action Fund that “the first thing I’d do as President is sign the Freedom of Choice Act.”1 Importantly, FOCA will be debated in the 111th Congress, which convenes shortly before President Obama is sworn into office on January 20, 2009.

 

FOCA also poses a significant danger to the nation’s Catholic health care system—a system providing care to millions of poor, uninsured, and under-insured ­Americans each year. If enacted, FOCA could force hundreds of ­Catholic hospitals across the nation to either permit abortions within their facilities or forgo government funding assistance and perhaps close their doors. Moreover, ­Catholic health care providers would be put in the unenviable position of choosing whether to follow the dictates of their faith and their consciences or begin performing or participating in abortions in order to advance their careers and maintain their livelihoods.

 

History of FOCA

Even before Roe v. Wade was decided in 1973, there were attempts in 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 Senator Alan Cranston to introduce the inaugural version of FOCA in 1989.3

 

FOCA was introduced at a time when some in Congress feared that Roe v. Wade might imminently be overturned, 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 v. Wade, abortion supporters argued that FOCA would protect a woman’s right to an abortion prior to “fetal viability or at any time [in order] to protect the life or health of the woman,” and that states could, within ­enumerated limits, enact protective laws that did not otherwise “interfere” with a woman’s right to abortion.4

 

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 established in Planned Parenthood v. Casey.5 Notably, under the new “undue burden” standard, requirements such as informed consent, reflection ­periods, and parental involvement in abortion decisions were deemed ­legally permissible.

 

Although expressing as its goal the simple codification of Roe v. Wade, FOCA also expressly provides 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.”6 Senator Barbara Boxer, a key supporter of FOCA, has forthrightly explained that FOCA will supersede all other laws, especially those that the Supreme Court has held to be constitutional under Roe v. Wade and its progeny.7

 

 

What Does FOCA Say?

FOCA provides that “it 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.”8

 

Furthermore, 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. As noted, 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.” And with the exception of a couple of minor attempts to distort the Court’s jurisprudence and classify abortion as a “fundamental right” in later opinions, the Supreme Court has not subsequently defined abortion as a “fundamental right.”9 Thus, FOCA goes beyond any Supreme Court decision by 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, protective laws that are supported by a majority of Americans. Among the more than 550 federal and state laws that FOCA would nullify are

Importantly, FOCA also threatens state and federal protections for individual health care providers and religiously affiliated institutions, including Catholic hospitals, that decline to perform or participate in abortions. 10

 

 

What Is FOCA’s Potential Impact on Catholic Health Care?

Currently, federal law and the laws of forty-seven states protect (to varying degrees) the rights of individual health care providers and religious and private hospitals to decline to participate in abortions for reasons of religious, moral, or ethical beliefs.11 In essence, these laws allow providers to practice medicine in accord with their beliefs as well as the founding principles of this nation, particularly the right to be free from coercion of action or conscience. These laws also protect individual health care providers and religious institutions from discrimination for declining to provide or participate in abortions.

 

FOCA would eliminate these protections. If, under FOCA, abortion is deemed a “fundamental right,” then hospitals must provide it and individual health care providers would be forced to choose between their deeply held beliefs and their careers.

 

Moreover, current limitations on federal and state funding for abortion would also be eliminated, and many sources of future government funding would not be available to institutions that refuse to comply with FOCA. Thus, Catholic hospitals and other health care apostolates that rely heavily on federal and state funding for their operating budgets would have to capitulate to demands that they participate in or permit abortions or forgo government funding and, in some cases, cease operation.

 

 

A Wake-up Call

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 will invalidate commonsense, protective laws that the majority of Americans support. It will not protect or empower women. Instead, it will protect and promote the abortion industry, sacrifice women and their unborn children 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. It will also threaten the continued existence and viability of Catholic health care in this nation.

 

To defeat FOCA and to protect women and the unborn, there are several things that we can do now: (1) unequivocally and frequently voice our opposition to FOCA by educating others about its potential deleterious effects on the unborn, women, our families, Catholic health care, and the right of the people through their elected representatives to determine abortion laws and policies; (2) continue to support efforts in state legislatures and in Congress to protect the unborn and combat the negative impact of abortion; and (3) inform our elected representatives of our opposition to FOCA and educate them on its impact.12 FOCA can be defeated, but we must be vigilant and outspoken in our opposition and in our defense of life.

 

 

 1 A video clip of this promise to Planned Parenthood can be viewed at www.fightfoca.com.

 2 Dawn E. Johnsen, “Functional Departmentalism and Nonjudicial Interpretation: Who Determines Constitutional Meaning?” Law and Contemporary Problems 67 (2004), note 152, http://www.law.duke.edu/shell/cite.pl?67+Law+&+
Contemp.+Probs.+105+(summer+2004).

 3 See A Bill to Protect the Reproductive Rights of Women, S. 1912 and H.R. 3700, 101st Cong., 1st sess. (November 17, 1989).

 4 To Protect the Reproductive Rights of Women, H.R. 25, 103rd Cong., 1st sess. (January 5, 1993).

 5 See Planned Parenthood v. Casey, 505 U.S. 833 (1992) and A Bill to Protect the Reproductive Rights of Women, S. 25, 103rd Cong., 2nd sess. (January 21, 1993), and H.R. 1068, 103rd Cong., 2nd sess. (February 23, 1993).

  6 See A Bill to Protect, Consistent with Roe v. Wade, a Woman’s Freedom to  Choose to Bear a Child or Terminate a Pregnancy, S. 1173 and H.R. 1964, 110th Cong., 2nd sess. (April 19, 2007).

  7 Public statement by U.S. Senator Barbara Boxer, January 2, 2004, http://www.nrlc.org/FOCA/FOCA%20Boxer%20press%20release.pdf.

  8 All specific language from FOCA is drawn from its most recent iterations: S. 1173 and H.R. 1964 (2007).

  9 See City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 420 n. 1 (1983) (majority opinion authored by Justice Powell) and Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 772 (1986) (“a woman’s right to make that choice freely is fundamental.”).

10 For a comprehensive list of these laws, visit www.fightfoca.com.

11 See D. Burke, A Primer on Protecting Healthcare Rights of Conscience, Americans United for Life Web site, http:
//www.aul.org/ROC_Primer.

12 One tool for engaging elected officials is a petition opposing FOCA.  Such a petition is available at http://www
.fightfoca.com.