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An Inauspicious Anniversary for a Continuing Threat: The Freedom of Choice Act Turns 20

by Denise M. Burke
Vice President of Legal Affairs

As debate rages over healthcare legislation currently under consideration in Congress and, specifically, whether abortion should be taxpayer-funded under the guise of “healthcare reform,” it would be easy to overlook an important and very inauspicious milestone:  the 20th anniversary of the federal “Freedom of Choice” Act (FOCA).

A Brief History of FOCA

Twenty years ago, in November 1989, FOCA was first introduced in Congress by Senator Alan Cranston and Representative Don Edwards, both California Democrats.  This radical new legislation seemed, in part, to be a response to the February 1989 decision by the U.S. Supreme Court in Webster v. Reproductive Health Services where the Court upheld a Missouri law that restricted the use of state facilities and personnel for the performance of abortions and required viability testing in pregnancies of 20 weeks or more.

Notably, FOCA was first introduced at a time when pro-abortion activists and some in Congress feared that Roe v. Wade might imminently be overturned (as a result of on-going federal litigation over state abortion-related laws and restrictions) and were seeking a means to prevent states from continuing to enact such laws.  FOCA’s goal was to create a fundamental right to abortion for all women, which would criminalize any government action that might limit or impede unfettered access to this newly-created “fundamental right.”

Relying on particular portions from the Supreme Court’s opinion in Roe, abortion advocates proposed FOCA, arguing that it 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.”  This inaugural version of FOCA purportedly attempted to codify Roe, by including a section permitting states to “impose requirements medically necessary to protect the life or health of the woman.”  Thus, under this early version, states could enact protective laws that did not interfere with a woman’s right to abortion, but served instead to improve abortion-health conditions.

Over the next few years, FOCA was repeatedly reintroduced substantively unchanged, until 1993, when emboldened by the election of openly pro-abortion President Bill Clinton and responding to the concerns of many abortion advocates that FOCA did not go far enough, sponsors modified the legislation to remove the section permitting “medically necessary” regulations on abortion.  Since 1993, versions of FOCA introduced in Congress have gotten more radical and more defiant in the face of mounting evidence of the negative impact of abortion on women and the public’s decreasing support for abortion.  For example, the 2007 version of the law, introduced in April 2007, publicly criticized the Supreme Court’s recent decision upholding the federal ban on partial-birth abortion, a ban supported by the vast majority of Americans.

To date, FOCA has not yet been reintroduced in the current Congress, but its “spirit” is pervading the current debate over healthcare and innumerable actions and initiatives championed by the Obama Administration and the Congress.

Beware of FOCA-by-Stealth

Over the past year, abortion advocates and their allies have begun insisting in the media and in communications with supporters that FOCA, while “important,” is not an immediate priority and that concerned Americans have overreacted to a piece of legislation that has not even been introduced.  And despite having control of Congress and the Executive Branch, some even appeared to confess they do not have the support needed for passage.

What are the reasons for this apparent sudden change of tune?  Why—when they have President Obama’s promise to finally enact FOCA, 20 years after it was first proposed—do they appear to be quickly conceding defeat?

This apparent back-pedaling on a long-established priority is a testament to the ferocious opposition engendered by this radical legislation.  However, as history repeatedly shows, abortion advocates’ apparent concessions should be viewed with a great deal of skepticism.  Now more than ever we need to beware of “FOCA-by-Stealth”: attempts by the Administration, Congress, and abortion advocates to enact FOCA piecemeal while purposefully attempting to deflect—or at least neutralize—public opposition to their far-reaching abortion-on-demand agenda.

To achieve their aims, the Administration, Congress, and abortion advocates have stolen a page from the successful pro-life playbook.  However, instead of enacting targeted laws designed to fence in the abortion license and to protect women from the negative impact of abortion, they are using a variety of executive, budgetary, and legislative means to realize their “full vision of reproductive freedom” —code words for unrestricted, unregulated, unapologetic, and taxpayer-funded abortion-on-demand.

Rather than a direct and possibly losing battle and debate over FOCA as a whole, they are resorting to a strategy of incremental and relentless implementation of the principles, spirit, and intent of FOCA.  In pursuit of this strategy, they are already using a variety of tools including Executive Orders; Executive Branch appointments; federal budget appropriations; federal legislation; action on long-standing budgetary riders; potential Senate ratification of international conventions; and even the debate over healthcare reform to advance and fund a radical pro-abortion agenda.

Here are just a few examples of how FOCA-by-Stealth is already being implemented: 

  • On January 23, 2009—just three days after his inauguration—President Obama signed an Executive Order to repeal the Mexico City Policy prohibiting U.S. taxpayer funding of international family planning programs that promote and perform abortions overseas.  Among the groups denied funding under this former policy was the International Planned Parenthood Federation (IPPF), the parent organization of the Planned Parenthood Federation of America.
  • President Obama has nominated Dawn Johnsen, a former staffer with the American Civil Liberties Union (ACLU) and the National Abortion Rights Action League (NARAL), to head the Office of Legal Counsel, one of the President’s primary legal advisors.  In 1989, as the legal director of NARAL, Johnsen filed an amicus brief in the Webster case, arguing that any restrictions making abortion less accessible are tantamount to “involuntary servitude” and that such “forced pregnancy” reduces women to “fetal containers” and violates the Thirteenth Amendment’s prohibition on slavery.
  • On March 11, 2009, President Obama signed the fiscal 2009 Omnibus spending measure.  This $410 billion measure needed to keep the federal government functioning through September 2009 also included significant distributions of U.S. taxpayer dollars to international family planning programs—programs that often promote abortion and sterilization as effective and acceptable means of family planning.  First, the measure allocated $50 million to the United Nations Population Fund (UNFPA) which is on record supporting abortion as an appropriate solution to child poverty and has been complicit in brutal population control programs in China, North Korea, and elsewhere that include forced abortions, forced sterilizations, and other human rights abuses.  Further, the spending measure provided $545 million for a variety of bilateral and multilateral family planning and “reproductive health” (i.e., abortion-promoting) programs worldwide.  This allocation was $82 million over 2008 funding levels and a 66 percent increase over the budget request made by the outgoing Bush Administration.
  • True to his expressed intent to appoint pro-abortion judges who will interpret the American Constitution in light of ever-evolving circumstances and principles rather than the original intent of the Framers, President Obama used his first judicial appointment to select a radically pro-abortion judge for the U.S. Court of Appeals for the 7th Circuit.  On March 17, 2009, the President nominated David Hamilton, a federal district court judge from Indiana, as well as a former Vice President for Litigation and board member of the Indiana branch of the ACLU and a former fundraiser for Association for Community Organizations for Reform Now (ACORN).  Hamilton was first appointed to the federal bench in 1994 by President Bill Clinton even though the American Bar Association (ABA) had given him a “not qualified” rating.  As a federal judge, Hamilton issued multiple rulings over seven years preventing Indiana’s informed consent law—a law that fully complied with the Supreme Court’s requirements for such laws —from going into effect.  The Seventh Circuit—the same court to which he is nominated—later reversed him, stating “[n]o court anywhere in the country (other than one district judge in Indiana [i.e., Hamilton]) has held any similar law invalid in the years since Casey.”  Notably, in response to Hamilton’s nomination, the New York Times opined that Hamilton’s nomination was meant to send a signal as to the types of judges President Obama would appoint.
  • President Obama has consistently maintained that a complete overhaul of the nation’s healthcare system is one of his top priorities and has already taken steps to bring about his expansive vision including comprehensive abortion and family planning services funded by taxpayer dollars.  In the lead-up to the current debate over healthcare reform, President Obama hosted the White House Health Care Summit, purporting to bring together 150 healthcare leaders, including key members of his Cabinet, White House staffers, members of Congress, and others to discuss how to reform the nation’s healthcare system.  Among those invited to participate was Cecile Richards, President of Planned Parenthood, along with other abortion advocates.  Notably, the President asked no pro-life healthcare group to participate.  During the Summit, Richards opined that healthcare reform must ensure women have “access to comprehensive family planning and reproductive healthcare”—more code words for unrestricted and unregulated abortion-on-demand.  She also actively promoted universal healthcare including abortion services funded by taxpayer dollars. [1]

Recently, Rep. Jerrold Nadler, a chief Congressional proponent of FOCA, promised that FOCA would be introduced in the 111th Congress “sooner rather than later,” but he did not elaborate on specific plans for its introduction and debate.  However, it is clear from the actions of the Obama Administration, Congress, and their pro-abortion allies that a campaign to implement FOCA-by-Stealth is already well underway.  If we are to effectively counter this radical agenda, we must remain vigilant and continue to speak out against any legislation, policy, or action by the Administration or Congress that furthers the “spirit” of FOCA and its radical vision of an America (and a world) of unrestricted, unregulated, unapologetic, and taxpayer-funded abortion-on-demand.

On this 20th anniversary of FOCA, the Administration, Congress, and abortion advocates are counting on the economy and other pressing issues to divert the attention of the American people so they can surreptitiously and with little resistance advance their radical pro-abortion agenda.  We cannot afford them success.  Future generations are literally counting on us to remain motivated and vigilant against this discretely and stealthily-advancing culture of death.



[1] For more information about FOCA-by-Stealth, see D. Burke, “Beware of “FOCA-By-Stealth”: Radical Abortion-on-Demand Agenda Being Implemented Piecemeal,” available at www.aul.org/FOCA_by_stealth.

This article was published with permission from Culture of Life Foundation. To view the original publication, see their website.