By Osayi Osar-Empokae
2008 Blackstone Fellow

Abortion has been one of the most controversial and important issues of the last few generations. Even before Roe v. Wade was decided in January 1973, there was proposed federal legislation to legalize abortion in the United States. For example in 1970, Sen. Bob Packwood (R-OR) introduced the National Abortion Act, which would have legalized abortion nationwide and superseded inconsistent state laws.[1] Although the National Abortion Act was unsuccessful, Sen. Packwood later joined with Sen. Alan Cranston (D-CA), to introduce the Senate-version of the Freedom of Choice Act (FOCA) in 1989.[2]

First Introduction of the Freedom of Choice Act

FOCA was first introduced at a time when some in Congress feared that Roe v. Wade might imminently be overturned (as a result of on-going federal litigation over abortion-related laws and restrictions), and were seeking a means to prevent states from enacting laws prohibiting or restricting abortion. FOCA’s main goal was to create a fundamental right to abortion for all women, which would criminalize any government action that limited, or impeded access to this newly-created fundamental right.  In Roe, the U.S. Supreme Court (USSC) held that a woman’s right to an abortion was protected under the right to privacy in the Fourteenth Amendment. The Court further held that a woman had a virtually absolute right to an abortion during the first trimester of her pregnancy, but that the states could regulate to ensure the procedure’s safety.  Further, the state maintained an interest in protecting the unborn later in pregnancy and could enact laws protecting the unborn and restricting abortion in the second and third trimesters.

Relying on particular portions  — both specific holdings and dicta — of the USSC’s decision in Roe, abortion supporters proposed FOCA, stating 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.”  The inaugural 1989 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.” Under this 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.

Freedom of Choice Act’s Radicilization Over The Years

Over the next few years, FOCA was repeatedly reintroduced substantively unchanged, until 1993, where the section providing for “medically necessary” regulations was removed. This subsequent version included new sections for findings, purpose of the act, and rules of construction, while simultaneously criticizing the progression from the “strict scrutiny standard” to the “undue burden” standard for reviewing abortion-related laws, first announced in Planned Parenthood v. Casey.[3] Under the undue burden standard, requirements such as informed consent with reflection periods and parental involvement laws are constitutional because only restrictions that unduly burden a woman’s ability to choose an abortion were viewed as unconstitutional.

After its introduction in 1995, FOCA was not reintroduced again until 2004 when Rep. Jerrold Nadler (D-NY) and Sen. Barbara Boxer (D-CA) introduced it. In her press release in 2004, Sen. Boxer explained that FOCA would “supersede all other abortion related laws, regulations or local ordinances[4],” which included informed consent laws and all abortion clinic regulations.

The most recent version of FOCA, introduced in 2007 was substantially similar to the one considered in 2004. However, some major differences include a new section criticizing the USSC and its April 2007 decision in Gonzalez v. Carhart, upholding the federal Partial-Birth Abortion Ban Act of 2003 which prohibited the use of the partial-birth abortion (or “D&X”) method of abortion and did not provide for a medical emergency exception.

Instead of highlighting the Court’s decision to abolish this medically unnecessary and inefficient abortive method, the 2007 FOCA misrepresented the prohibition as a “legal and practical” barrier that hindered “the ability of women to participate in the economic and social life of the Nation.”[5] It also used misinformation to further its point by exaggerating the less than one-hundred thousand people who participated in illegal abortions between the late 1800’s and early 1900’s, alleging instead that there over one million illegal abortions before Roe.[6]

Although the 2007 FOCA stated that the codification of Roe was its objective, it also stated that FOCA 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.”[7] As Sen. Boxer eloquently explained in 2004, “FOCA would supersede all other laws,” especially those that the Supreme Court has held to be constitutional under Roe.[8]

FOCA has yet to be reintroduced in the 111th Congress which convened in January 2009.  However, one of its chief proponents, Rep. Jerrold Nadler, has promised that it will be introduced “sooner rather than later” and President Obama has promised his Administration’s support for this radical legislation.


[1] Johnsen, Dawn E., Functional Departmentalism and Nonjudicial Interpretation: Who Determines Constitutional Meaning? Law and Contemporary Problems, Supra note 152.

[2] See S. 1912, 101st Cong. (1989); H.R. 3700, 101st Cong. (1989).

[3] See S. 25, 103d Cong. (1993); H.R. 1068, 103d Cong. (1993).

[4] National Right to Life, Senator Barbara Boxer 2004 Press release.

[5] See S. 1173, 110th Cong. (2007); H. R. 1964, 110th Cong. (2007).

[6] Nathanson, Bernard. (PHD), Confessions of an Ex-Abortionist.

[7] See S. 1173, 110th Cong. (2007); H. R. 1964, 110th Cong. (2007).

[8] National Right to Life, Press release 2008.

[1] Johnsen, Dawn E., Functional Departmentalism and Nonjudicial Interpretation: Who Determines Constitutional Meaning? Law and Contemporary Problems, Supra note 152.