President-Elect Obama and The Freedom of Choice Act (FOCA)

While standing before a live audience at a Planned Parenthood event, President-Elect Obama was asked the following from a member of the audience:

What would you do at the Federal level, not only to ensure access to abortion, but to makesure that the Judicial nominees, that you will inevitably be able to pick, are true to the core tenets of Roe v. Wade?

In responding to this question, President-Elect Obama unhesitatingly responded,

The first thing I do as President would be to sign the Freedom of Choice Act (FOCA) (for the video of this event, go here)

What is FOCA?  If President-Elect Obama were to sign this bill into effect, what would that accomplish?  Is this legislation that should be a cause for concern? 

What is FOCA?

FOCA is a bill that was introduced to the United States House of Representatives and Senate in 2004.  From the Library of Congress, the title of the bill is “to prohibit, consistent with Roe v. Wade, the interference by the government with a woman’s right to choose to bear a child or terminate a pregnancy, and for other purposes” (Senate Bill S. 2020).  With the passage of FOCA, this would guarantee the following:

Freedom of Choice Act – Declares that it is the policy of the United States that every woman has the fundamental right to choose to: (1) bear a child; (2) terminate a pregnancy prior to fetal viability; or (3) terminate it after fetal viability when necessary to protect her life or her health.

Prohibits a governmental entity from: (1) denying or interfering with a woman’s right to exercise such choices; or (2) discriminating against the exercise of those rights in its regulation or provision of benefits, facilities, services, or information.

Authorizes an individual aggrieved by a violation of this Act to obtain appropriate relief, including relief against a governmental entity in a civil action.

States that this Act applies 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 of this Act.

In a general gist, if this bill were signed by President-Elect Obama as promised, it would overturn and abolish any restrictions or limitations imposed by the government on a woman’s right to terminate her pregnancy. 

What Would the Passage of FOCA Do?

From the Planned Parenthood website, the passage of FOCA would “The legislation would invalidate existing and future laws that interfere with or discriminate against the exercise of the rights protected” (Planned Parenthood).  With the recent ban on partial birth abortion, Planned Parenthood has vowed to redouble their efforts in seeing FOCA passed, in order to protect the “health” of women and right to choice for future generations. 

Since this bill applies to the Federal and State level, it would automatically overturn existing state abortion reporting requirements, state laws concerning parental involvement, state laws on restricting later-term abortions, states conscience protection laws for individual health care providers, state conscience protection laws for institutions, state bans on partial-birth abortion, state laws requiring counseling before an abortion, and state laws concerning ultrasounds before an abortion (Family Research Council).

Also contained within FOCA is a clause protecting women from discriminatory acts by the government in regulating the provision of abortion through facilities, services, or information and authorizes individuals “aggrieved” by such a violation to obtain appropriate relief.  In other words, “The bill would give women the right to file civil suits against any person or government agency that sought to limit their ability to get an abortion“ (Tom Curry, MSNBC).    

Denise Burke, Vice President of Legal Affairs for Americans United for Life, observed that FOCA,

…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 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 (Americans United for Life).

In a nutshell, the passage of FOCA not only provide abortion on demand, but this bill would disable state and federal legislators from introducing any restriction and/or limitations against FOCA, and presumably would limit certain individual rights as well.

Is FOCA a Cause for Concern?

If the points cited above is not enough to be a cause for concern, if we observed the abortion rates of states that have similar legislation to FOCA – California , Connecticut , Hawaii , Maine , Maryland , Nevada and Washington – then we would not only discover increasing abortion rates, but that these states have higher abortion rates than the national average. 

Let’s look at Maryland for example.  In 1991, when the state of Maryland passed a similar law to FOCA, the state possessed similar abortion rates with the national average (see chart below.  Courtesy of Guttmacher Institute).  By observing the chart below, what we see is that Maryland’s abortion rates have increased (roughly 8%), whereas the national average decreased nearly 9%, to create a difference of 17% in those years!  (for further analysis, see Freedom of Choice Act Would Harm Women and Remove Freedoms).

In Concluding

FOCA is not a trans-formative policy that would be for the betterment of America.  The passage of FOCA will have a detrimental affect upon American citizens today and tomorrow.  Today by tying the hands of State and Federal Legislators from promoting any restrictions or limitations in obtaining abortions, thus, silencing the right of American citizens from speaking out against this legislation through their representatives. 

Moreover, FOCA will take away the “right” of future citizens of America by never allowing them the choice of their most basic freedom, the freedom to life.    

Food for Further Thought:

What to Expect from President-Elect Obama on Same-Sex Marriage and Homosexuality in 2009

Planned Parenthood’s Gift Certificate of Health

Planned Parenthood Cover-Up: Part 1 and Part 2

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DHHS: Physicians' Conscience Clear….For Now.

On September 24, we reported about the US DHHS’ proposed rule that would promote the freedom of conscience among physicians.  If you follow that link, you can also read the comments we submitted.  I know many of you submitted similar comments as well.

We are pleased to report now, that DHHS has adopted the proposed rule, despite the objections of groups like Planned Parenthood and others.

Thanks to all of you who submitted comments in support of a physician’s right of conscience.  Remain vigilant.  Secretary Leavitt has done a fine thing by adopting this regulation, but it appears that his incoming replacement will be former Senator Tom Daschle.  Given President-elect Obama’s repeated commitments to passing the Freedom of Choice Act and expanding the death grip of Planned Parenthood, we must remain active in our stewardship of government.

About Jeremy Dys

Jeremy Dys is the FPCWV's President and General Counsel. In addition to his duties of providing strategic vision and leadership to the FPCWV, Dys is the chief lobbyist and spokesman. Dys is regularly featured in local, state, and national print, radio, and television outlets. He lives close to Charleston with his wife and growing family.