Requirements that licensed physicians perform Instead, it would protect and promote the abortion industry, abortions sacrifice women and their health to a radical political The Freedom of Choice “Delayed enforcement” laws (banning abortion ideology, and silence the voices of everyday Americans when Roe v. Wade is overturned and/or the authority to who want to engage in a meaningful public discussion over Act: Radical Attempt to restrict abortion is returned to the states) the availability, safety, and even desirability of abortion. Prematurely End Debate Bans on partial-birth abortion Endnotes 1 Bans on abortion after viability. FOCA’s 1. This article – in substantial part -- was previously published by Over Abortion apparent attempt to limit post-viability abortions is the Culture of Life Foundation. See Denise Burke, "The Freedom illusory. Under FOCA, post-viability abortions are of Choice Act: Imposing Unregulated Abortion on Americans" at expressly permitted to protect the woman’s “health.” http://culture-of-life.org//content/view/490/96/ (last visited Denise M. Burke Within the context of abortion, “health” has been November 4, 2008). Americans United for Life, Vice President of Legal Affairs 2. Johnsen, Dawn E., "Functional Departmentalism and interpreted so broadly that FOCA would not actually Nonjudicial Interpretation: Who Determines Constitutional proscribe any abortion before or after viability. Meaning?" Law and Contemporary Problems, Supra note 152, Nearly two years ago, the public debate over abortion Limits on public funding for elective abortions available at: was irrevocably altered. In the landmark Gonzales v. (thus, making American taxpayers fund a procedure that http://www.law.duke.edu/shell/cite.pl?67+Law+&+Contemp.+Pro Carhart decision, the U.S. Supreme Court upheld the many find morally objectionable) bs.+105+(summer+2004) (last visited November 4, 2008). federal ban on partial-birth abortion and, more importantly, 3. See S. 1912, 101st Cong. (1989); H.R. 3700, 101st Cong. abdicated, at least in part, its role as the “National Abortion Limits on the use of public facilities (such has (1989). public hospitals and medical schools at state Control Board.” 4. See Planned Parenthood v. Casey, 505 U.S. 833 (1992) and S. In its decision, the Court signaled an increasing universities) for abortions 25, 103d Cong. (1993); H.R. 1068, 103d Cong. (1993). willingness to blunt attempts by abortion extremists to use State and federal legal protections for individual 5. National Right to Life, Senator Barbara Boxer 2004 Press the federal courts to unilaterally impose their radical healthcare providers who decline to participate in release, available at: agenda. The immediate reaction of activists and some abortions http://www.nrlc.org/FOCA/FOCA%20Boxer%20press%20release. pdf, (last visited November 4, 2008). members of Congress confirmed this critical shift. Legal protections for Catholic and other 6. See S. 1173, 110th Cong. (2007); H. R. 1964, 110th Cong. Abortion advocates, including some members of religiously-affiliated hospitals who, while providing (2007). Congress, hastily recycled the hyperbolic rhetoric of the care to millions of poor and uninsured Americans, 7. Nathanson, Bernard. (PHD), "Confessions of an Ex- 1970s. In one public statement after another, they refuse to allow abortions within their facilities Abortionist", available at: condemned the decision and the Court, predicting--like Notably, pro-abortion groups do not deny FOCA’s http://www.aboutabortions.com/Confess.html (last visited November 4, 2008). modern-day Chicken Littles--that the outlawing of abortion draconian impact. For example, Planned Parenthood has was at hand and that women were about to be relegated to explained, "FOCA will supercede anti-choice laws that 8. See S. 1173, 110th Cong. (2007); H. R. 1964, 110th Cong. (2007). “second-class” status. For example, then-Presidential restrict the right to choose, including laws that prohibit the 9.http://www.nrlc.org/FOCA/FOCA%20Boxer%20press%20releas candidate Barack Obama stated, “I am extremely concerned public funding of abortions for poor women or counseling e.pdf (last visited November 4, 2008). that this ruling will embolden state legislatures to enact and referrals for abortions. Additionally, FOCA will 10. See City of Akron v. Akron Ctr for Reproductive Health, 462 further measures to restrict a woman’s right to choose, and prohibit onerous restrictions on a woman's right to choose, U.S. 416, 420 n.1 (1983) (majority opinion authored by Justice that the conservative Supreme Court justices will look for such as mandated delays and targeted and medically Powell). other opportunities to erode Roe v. Wade, which is unnecessary regulations." established federal law and a matter of equal rights for The Evangelization Station women.” State FOCAs Hudson, Florida, USA Recognizing that the federal courts would no longer be Seven states have enacted versions of FOCA, further E-mail: [email protected] a reliable and viable tool for actualizing their demands for entrenching and protecting the “right to abortion” in those unlimited and unregulated abortion, abortion supporters states: California, Connecticut, Hawaii, Maine, Maryland, www.evangelizationstation.com began to look elsewhere for the means to advance their Nevada, and Washington. radical agenda. Pamphlet 472 In late April 2007, Obama along with Senator Hillary Conclusion Clinton and others, immediately re-introduced the federal Clearly FOCA will not make abortion safe or rare – on Freedom of Choice Act (FOCA), a radical attempt to the contrary, it will actively promote abortion and do enshrine abortion-on-demand into American law, to sweep nothing to ensure its safety – so, abortion advocates’ aside existing laws that the majority of Americans support-- unrelenting campaign to enact FOCA is a “wake-up call” to such as requirements that licensed physicians perform all Americans. If implemented, FOCA would invalidate abortions, fully-informed consent, and parental common-sense, protective laws that the majority of involvement-- and to prevent states from enacting similar Americans support. It will not protect or empower women. protective measures in the future. More importantly, FOCA is a cynical attempt to After its subsequent re-introduction in 1995, FOCA adopted, or implemented before, on, or after the date of prematurely end the debate over abortion and declare was not again introduced until 2004 when it was offered by [its] enactment.” “victory” in the face of mounting evidence that (a) the Representative Jerrold Nadler in the House of American public does not support the vast majority of Representatives and Senator Barbara Boxer in the Senate. What is the Legal Impact of FOCA? abortions being performed in the U.S. each year and (b) In her accompanying press release, Senator Boxer FOCA creates a new and dangerously radical “right.” abortion has a substantial negative impact on women. explained that FOCA would “supersede all other abortion It establishes the right to abortion as a “fundamental right,” Thirty-five years after Roe, abortion supporters are related laws, regulations or local ordinances5,” which elevating it to the same status as the right to vote and the dismayed that abortion remains a divisive issue and that included informed consent laws and any health and safety right to free speech (which, unlike the abortion license, are their radical agenda has not been submissively accepted by regulations imposed on abortion clinics. specifically mentioned in the U.S. Constitution). Critically, the American public. Their weapon to impose their will on The most recent version of FOCA was introduced in in Roe v. Wade, the Supreme Court did not define abortion the unwilling American public is FOCA. April 2007, following the Supreme Court’s decision in as a “fundamental right.”10 And with the exception of one Gonzales v. Carhart, upholding the federal ban on partial- justice’s attempt in 1983 to distort the Court’s abortion History of FOCA birth abortion. This most-recent version was substantially jurisprudence by framing the abortion license as a Even before Roe v. Wade was decided in 1973, there similar to the 2004 version, but also included a section “fundamental right,” the Court has not subsequently were attempts by Congress to legalize abortion. For deriding the Supreme Court’s decision in Gonzalez. defined abortion as a “fundamental right.” Thus, FOCA example in 1970, Senator Robert Packwood introduced the Specifically, FOCA mischaracterized the prohibition of goes beyond any Supreme Court decision in enshrining National Abortion Act, which sought to legalize abortion partial-birth abortion as a “legal and practical” barrier that unlimited abortion-on-demand into American law. nationwide and preempt state laws restricting or regulating hindered “the ability of women to participate in the FOCA would also subject laws regulating or even abortion.2 Although the National Abortion Act was economic and social life of the Nation.”6 Further, drawing touching on abortion to judicial review using a “strict unsuccessful, Senator Packwood later joined with Senator upon “abortion mythology,” this version of FOCA scrutiny” framework of analysis. This is the highest Alan Cranston to introduce the inaugural version of the exaggerated the numbers of Americans who availed standard American courts can apply and is typically Freedom of Choice Act (FOCA) in 1989.3 themselves of illegal abortions in the late 1800’s and early reserved