By Rebecca Mastee
AUL Spring 2009 Extern
For years, while promoting the Freedom of Choice Act (FOCA), pro-abortion groups have publicly claimed that the law would merely codify Roe v Wade and Doe v Bolton, two United States Supreme Court Cases that legalized abortion. Lobbying for FOCA began with its introduction in 1989. For example, in 1992, Kate Michelman, former president of the National Abortion Rights Action League (NARAL), claimed that women no longer had a fundamental right to abortion, and were being moved one step closer to back-alley abortions. NARAL, Planned Parenthood, the National Organization of Women (NOW), and the American Civil Liberties Union (ACLU) all maintain that FOCA will guarantee a woman’s fundamental right to abortion.
Specifically, NARAL contends that FOCA is essential because “a woman’s right to choose is being chipped away both by the courts and state lawmakers” and that the right to abort has been eroded by “more than 500 anti-choice measures…, essentially rolling back this fundamental right for many women.” The ACLU reiterates this by stating:
Since the landmark 1973 Roe v. Wade decision, anti-choice legislators in the states and in Congress have systematically eroded reproductive rights… Other state and federal restrictions threaten to make reproductive freedom an empty promise for many American women, and many of these restrictions fall most heavily on low-income women and young women. For example, 33 states and the District of Columbia currently restrict low-income women’s access to abortion; several federal laws, such as the Hyde Amendment, bar access to abortion care for low-income women who rely on the federal government for their health care.
In 2007, when the United States Supreme Court (USSC) upheld the Partial-Birth Abortion Ban of 2003, pro-abortion organizations saw this as yet another threat to the “right” to abortion and once again renewed efforts to enact FOCA. Yet while attacking the Court’s decision, NARAL masked the substance of the federal ban on partial-birth abortion and simply referred to it as the “first-ever federal ban on a safe abortion method.” Planned Parenthood too criticized this “federal abortion ban” and omitted the term “partial-birth.” This ban, and any other state or federal limitation on abortion, although permitted by Roe v Wade, are seen by abortion supporters as an erosion of the “right” to abortion. Hence, they market FOCA as imperative and necessary to retain this controversial “right.”
However, setting aside whether or not abortion truly is a woman’s fundamental right, asserting that FOCA is a mere codification of the rights granted by Roe is in and of itself misleading. Although Roe v Wade provided the right to choose an abortion, USSC jurisprudence has consistently permitted state and federal regulations and restrictions on this “right,” such as the nationwide ban on partial-birth abortion, requirements for parental involvement or informed consent, and limitations on the use of taxpayer funding for abortions.
Yet any regulation of or restriction on abortion is unacceptable to abortion supporters. They are pushing FOCA as a way of establishing a woman’s “absolute right to choose whether to continue or terminate [her] pregnancies before fetal viability” [emphasis added] and, in reality, at any time of pregnancy up to live birth. For example, NOW argues that FOCA will also provide for post-viability or late-term abortions to preserve a woman’s life or health. In the context of abortion, the term “health” is very broadly interpreted. “Health” encompasses not only a woman’s physical health, but also includes factors such as “emotional, psychological, familial, and the woman’s age…” as relevant to medical judgment, which notably allows attending physicians unlimited discretion.
Therefore, this “right” to post-viability abortions establishes a wide open door to unlimited late-term abortions. With no consensus as to when viability occurs and an indefensibly broad definition of women’s “health,” abortionists will be able to find justification in any case.
Addressing the expanse of FOCA, Senator Barbara Boxer (D-CA), who introduced FOCA in both 2004 and 2007, further admits:
FOCA supersedes any law, regulation or local ordinance that impinges on a woman’s right to choose. [Emphasis added.]
The ACLU also proclaims the goal of FOCA.
By superseding existing anti-choice laws that restrict the right to choose abortion, and prohibiting any level of government from enacting measures that deny or interfere with a woman’s right to choose to continue or end a pregnancy, FOCA would stop the erosion of a woman’s right to choose. [Emphasis added.]
While NOW admits:
FOCA applies to measures enacted or implemented before, on, or after the date of its enactment. [Emphasis added.]
FOCA creates a no-restriction policy on abortion, impacting all laws, current and future, that might curtail abortions. This expansive, unlimited “right” was not set out in Roe.
According to the most recent version, FOCA will prohibit all state and federal governments from:
- Denying or interfering with a woman’s right to choose to bear a child, terminate a pregnancy prior to viability, or to terminate a pregnancy after viability where term is necessary to protect the life or health of a woman
- Discriminating against a woman’s exercise of these rights in the regulation or provision of benefits, facilities, services, or information
Pro-abortion organizations readily admit this “no-regulation and no-restrictions policy” that FOCA would establish. These admittances are more elusive and veiled, though, as the true implications of FOCA are not fully evident in their statements.
For example, Senator Boxer selectively noted that FOCA will invalidate all current laws restricting government funding of abortion, prohibiting abortion in public hospitals, requiring women seeking abortion to receive information about the procedure and alternatives to abortion, or those laws requiring a waiting period prior to obtaining an abortion. Denise Burke of Americans United for Life states that FOCA will also nullify laws which currently allow medical staff or centers to conscientiously object to performing or participating in abortions, as well as a multitude of other common-sense and medically-supported laws such as requirements that only licensed physicians perform abortions.
NOW and Planned Parenthood both acknowledge
FOCA will supersede laws that restrict the right to abortion, including laws that prohibit the public funding of abortion care for poor women or counseling and referrals for abortion services. [Emphasis added.]
Additionally, “FOCA will prohibit onerous restrictions on this right, such as mandated delays and medically unnecessary regulations.” These “restrictions” being federal and state bans on partial-birth abortion ban and restrictions on taxpayer funding of abortions, while “mandated delays” and “medically unnecessary regulations” refer merely to state sanctioned reflection (or “waiting”) periods, informed consent requirements, and parental involvement laws.
NOW argues that parental involvement laws are really used as a
[T]ool to deny access to abortion services for minors [and] when such laws deny or interfere with the ability of minors to access abortion services, they would violate FOCA. [Emphasis added.]
The ACLU backs this belief denouncing state laws that it views as “restrict[ing] young women’s access to abortion by mandating parental notice or consent.” Under FOCA then, teenage girls will have the “right” to abortion and parents will not only have no right to any participation in or knowledge of the abortion, but they will also have no right to protect their daughters.
FOCA guarantees abortion, by voiding all current restrictions and prohibiting future regulations. Answering whether FOCA goes beyond the rights granted to women in Roe v Wade, NOW and Planned Parenthood both admit that FOCA goes after the “full vision of reproductive freedom” by forbidding “government from interfering with a woman’s right to choose to bear a child” and “prohibits discrimination against the exercise of reproductive rights.” Planned Parenthood further admits
The legislation would invalidate existing and future laws that interfere with or discriminate against the exercise of the [abortion] rights protected.
Clearly FOCA does more than just codify Roe.
As a result, NARAL and the ACLU applaud FOCA for establishing federal law that guarantees reproductive freedom for future generations. Under this guise of “freedom,” the voiding of all restrictions on abortion will, in reality, leave women unprotected and more vulnerable. For example, FOCA would enable a 12 year old girl to obtain an abortion, not only without parental consent, but without her parents ever being alerted that she had an abortion. Her abortion could be performed by a non-physician, who, without informed consent laws, would not be required to tell her about the inherent risks of the procedure. Additionally, with no limitations on government funding, all of this would be paid for by taxpayer dollars.
 NARAL is now known as NARAL-Pro-Choice America.
 Federal News Service, News Conference with National Abortion Rights Action League Re: Supreme Court Decision in Pennsylvania Case, June 29, 1992.
 NARAL Pro-Choice America, Freedom of Choice Act (FOCA) fact sheet, January 1, 2008, available at http://www.prochoiceamerica.org/assets/files/Abortion-Access-to-Abortion-FOCA.pdf, last visited January 30, 2009.
 Caroline Fredrickson and Gregory T. Nojeim, ACLU Letter to Senator Boxer and Representative Nadler Thanking the Lawmakers for Introducing the Freedom of Choice Act (FOCA), April 2006, available at http://www.aclu.org/reproductiverights/abortion/25062leg20060417.html, last visited February 3, 2009.
 Supra, note 3.
 Planned Parenthood, Freedom of Choice Act, May 5, 2008, available at http://www.plannedparenthood.org/issues-action/abortion/freedom-of-choice-act-19942.htm, last visited January 30, 2009.
 Statement by U.S. Senator Barbara Boxer, January 22, 2004, available at http://www.nrlc.org/FOCA/FOCA%20Boxer%20press%20release.pdf, last visited January 30, 2009.
 NOW, Freedom of Choice Act would Guarantee Roe Protections in U.S. Statutes: Questions & Answers about FOCA, April 30, 2007, available at http://www.now.org/issues/abortion/070430foca.html, last visited January 30, 2009.
 Doe v. Bolton, 410 U.S. 179, 192 (1973).
 Viability is the time at which a fetus is capable of sustained survival outside the womb.
 Supra, note 8.
 Supra, note 7.
 Supra, note 4.
 Supra, note 8.
 FOCA, 2007.
 Supra, note 2.
 NOW, Supra, note 8. See also, Planned Parenthood Federation of America, Questions and Answers about FOCA, January 22, 2004, available at http://www.nrlc.org/FOCA/PPFAfoca-questions-12445.pdf, last visited January 30, 2009.
 Supra, note 8.
 Supra, note 4.
 Supra, note 18.
 Planned Parenthood, Support the Freedom of Choice Act, May 2, 2007, available at http://www.plannedparenthood.org/issues-action/abortion/freedom-of-choice-act/articles/support-foca-14393.htm, last visited January 30, 2009.
 NARAL, Supra, note 3. See also ACLU, ACLU Applauds Introduction of the Freedom of Choice Act, April 2007, available at http://www.aclu.org/reproductiverights/abortion/29439prs20070419.html, last visited February 3, 2009.