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The Freedom of Choice Act: Endangering the Unborn, Women, and Catholic Health Care

By Rebecca Mastee
AUL Spring 2009 Extern

Supporters of the federal Freedom of Choice Act (FOCA) often argue that its enactment will not lead to an increase in the nation’s abortion rate and that FOCA and related measures to encourage contraception and comprehensive sex education will actually reduce the nation’s already declining abortion rate.  But, is there any evidence to support these politically-motivated assertions?

When we look closely that the experience of a small handful of states that have enacted state versions of FOCA – laws providing for and promoting unrestricted and under-regulated abortion on demand – we see that state FOCA’s have actually resulted in higher abortion rates in those states despite years of steady decline in the national abortion rate.

To date, seven states have already enacted laws creating fundamental state rights to abortion, often on par with the right to free speech and the right to vote.  These laws guarantee this “right” even when Roe v. Wade is ultimately overturned.  The states that have enacted FOCA’s are California , Connecticut , Hawaii , Maine , Maryland , Nevada , and Washington .[1] Moreover, in 2009, at least 3 states, Illinois , Minnesota , and New Mexico , have considered similar laws.

According to the Guttmacher Institute – long-known as the “research arm” of Planned Parenthood – Maine , Maryland , and Nevada have all consistently maintained abortion rates above the national rate since enacting state versions of FOCA.  For example, Maine’s FOCA was first enacted in 1979 and was later amended in 1993.  Yet from 1995 to 2005, the abortion rate in Maine increased by 7 percent.

Moreover, Maryland enacted a FOCA in 1991, which is similar to the most recently-proposed federal version:

[T]he State may not interfere with the decision of a woman to terminate a pregnancy:
(1) Before the fetus is viable; or
(2) At any time during the woman’s pregnancy, if:
(i) The termination procedure is necessary to protect the life or health
of the woman; or
(ii) The fetus is affected by genetic defect or serious deformity or
abnormality.[2]

Although this law contains relatively few words, it provides for much, because the interpretation of a woman’s “health” within in the context of abortion is very broadly construed to include not only physical health, but also emotional and psychological health, to be decided according to an individual abortion provider’s unlimited discretion.[3]  When this law went into effect, Maryland ’s abortion rate was already 4.56 percent higher than the national rate.  With FOCA in place, Maryland ’s abortion rate continued to climb, so much so that in 2005, the abortion rate in Maryland was 62 percent higher than the national rate.

Unfortunately, as a result of FOCA, the increased abortion rates in Maine and Maryland are not anomalies.  Both Connecticut and Nevada enacted FOCA’s in 1990.  In Nevada ,  from 1991 through 2005, the annual abortion rate in Nevada was 39 percent or more above the national rate.  The results in Connecticut have been similar.  From 2000 to 2005, Connecticut ’s abortion rate increased by 10.8 percent, bringing it to 21.6 percent higher than the national abortion rate for the same time period.

Further, these inevitable increases in state abortion rates also correlate strongly to increased risks to and negative impact on women.  Simply, abortion hurts women.  Although state FOCA’s are guised as promoting women’s health, the short-term, negative medical impact on women resulting from abortion are numerous and include hemorrhages, infections, uterine perforation, blood clots, cervical tears, incomplete abortion (retained tissue), cardiac arrest, respiratory arrest, and even death.[4]  Later-term abortions have even greater risks and are more likely to require a hysterectomy, reparative surgery, or a blood transfusion.[5]

In addition to the immediate medical risks, abortion also has negative psychological and other long-term medical effects.  After abortion, many women develop emotional problems and encounter future fertility issues.[6]  Abortion also increases a woman’s likelihood of developing breast cancer.[7] Depending on the demographic, this likelihood of developing breast cancer could be 30 percent, 50 percent, or even 100 percent higher for post-abortive women.[8]

Having knowledge of the negative medical consequences of abortion would seemingly encourage legislators to consider promoting alternatives to abortion.  Unfortunately this is not the case, and in some instances alternatives to abortion are subjected to increased hostility and negative scrutiny.  For example, California and Maryland have both targeted pregnancy care centers (sometimes known as “crisis pregnancy centers”) – which offer women positive alternatives for unplanned pregnancies – for hostile and unnecessary regulation and oversight in an attempt to close them down and eliminate “competition” for abortion centers.[9]

In addition to the lack of support for abortion alternatives, states with FOCA also maintain other laws and promote other programs that are detrimental to women.  A focus on abortion and increased funding for abortion services leads to a corresponding decrease in availability and quality of prenatal care, as well as a decline in adoption rates.

Just this year, the Maryland Senate voted to kill Senate Bill 195, which would have required state abortion facilities in Maryland already in possession of ultrasound equipment, to offer women an opportunity to view an ultrasound, receive a copy of the image, or listen to the child’s heartbeat, before having an abortion.[10]  The failure of this measure is not surprising in a state which prioritizes abortion through public funding.  In 1994 (after Maryland had banned state funding of abortions every year since 1981), the Maryland Senate voted to override this ban and added comprehensive abortion funding to their state budget.[11]  State funding for abortion was supported by the misguided rationale “that paying for abortions is cheaper than maintaining a child on welfare.”[12]

This dangerous, anti-child mentality has a negative impact on many aspects of society, including maternal health and support for adoption.  For example, Maryland seems to be failing in its goal “to improve the health status of Marylanders and their families by assuring the provision of quality primary, preventive and specialty care services.”[13]  Despite a goal to ensure that (by 2010) 90 percent of pregnant women receive prenatal care in their first trimester, the number of women actually receiving such care is in steady decline.  In 2002, it was reported that only 84 percent of pregnant women received care,[14] and by 2007 the number declined further to 79.5 percent.[15]

Moreover, the number of children adopted through public agencies in Maryland has also dramatically declined, from 949 adoptions in 2002 to only 620 in 2005.[16] All the while, the state’s abortion rate has been increasing.

Connecticut has also experienced a declining adoption rate.  Not only are there fewer adoptions, but this state’s child population decreased by 0.4 percent, from 837,964 children under the age of 18 years in 2002 to only 835,006 in 2005.[17]  Reduction in  the child population — a devastating consequence of how a society views children — will have a significant future economic impact.  Many economists and demographers assert that, in the near future, younger generations – because of their abortion-reduced size — will be incapable of caring for and economically supporting more populous older generations.

A number of factors impact both national and state abortion rates including abortion-related federal and state legislation.  Where states have implemented FOCA’s, laws which would place restrictions or regulations on abortion are minimal, or even non-existent:[18]

Notably, California has no restriction on public funding of abortion and even provides funds for “all or most medically necessary abortions.”[19]  It does not ban partial-birth abortion, nor does it mandate a reflection period or any informed consent counseling on the risks associated with abortion.[20]  With few protective measures in place, Americans United for Life has ranked California as the worst state in the nation for life-affirming laws and policies.[21]

Washington voters approved the state’s FOCA in 1991.  Since that time, Washington has failed to enact any meaningful regulation of abortion.  For example, Initiative 694, a partial-birth abortion ban, was on the ballot in November 1998.[22]  However, the measure failed, 57 percent to 43 percent.[23]  Moreover, Washington is one of only 13 states that do not even require that abortions be performed only by licensed physicians.[24]  It provides public funding for abortions if women are receiving state Medicaid assistance, yet requires no mandated counseling, a reflection period, nor parental involvement.[25]  Although legislation to establish parental notification requirements for abortions has been repeatedly introduced in the Washington legislature, it has yet to pass.[26]

Clearly, state FOCA’s result in fewer meaningful and protective regulations on abortion, increased taxpayer funding for abortions, increased dangers for women, and increased abortion rates.  To effectively decrease the numbers of abortions, laws regulating and, in some instances, restricting abortion are the real key.

Dr. Michael J. New, an assistant professor of political science at the University of Alabama and formerly with the Harvard-MIT Data Center, has shown that “[t]he states with the most active pro-life laws have seen the biggest abortion declines.”[27]  His research has shown that “enacted (pro-life) legislation results in statistically significant reductions in abortion rates and ratios.”[28]  It is “evidence that state pro-life legislation has been effective in reducing the number of abortions in a given state.”[29]

His findings are consistent with Center for Disease Control (CDC) data as well.  The CDC attributes an overall decline in the abortion ratio, which occurred across the nation from 1995 to 2000, to a variety of factors, but admits that one of these relevant factors is “reduced or limited access to abortion services, including the passage of abortion laws that affect adolescents (e.g., parental consent or notification laws and mandatory waiting periods).”[30]

This is what works.  To decrease abortions, limits need to be imposed and the protective legislation advanced by pro-life groups like Americans United for Life is what is truly needed.


[1] Americans United for Life, Defending Life 2009, available at http://dl.aul.org/abortion/state-foca-map.

[2] Abortion Procedures, Maryland Health-General Code Ann. § 20-209 (2008).

[3] Doe v. Bolton, 410 U.S. 179, 192 (1973).

[4] Americans United for Life, Defending Life 2009, available at http://dl.aul.org/abortion/abortion-clinic-regulations-combating-the-“true-back-alley”.

[5] Id.

[6] Id.   

[7] Americans United for Life, Defending Life 2009, available at http://dl.aul.org/appendix/true-breast-cancer-awareness-informing-women-of-the-abortion-breast-cancer-link.

[8] Id.

[9] Americans United for Life, Defending Life 2009, available at http://dl.aul.org/abortion/pregnancy-care-centers-on-the-frontline-in-the-cause-for-life.

[10] Senate Bill 195, Maryland General Assembly 2009, available at http://www.mdrtl.org/files/sb0195f-1.pdf.

[11] Janet Naylor , Maryland Senate Backs Medicaid Abortions, The Washington Times, March 25, 1994.

[12] Id.

[13] Maryland Department of Health and Mental Hygiene, State Budget FY2006 Operating Budget Detail, available at http://www.dbm.maryland.gov/dbm_publishing/public_content/dbm_search/budget/toc_fy2006_operating_budget_detail/hlthhosp.pdf.

[14] Id.

[15] Maryland Department of Health and Mental Hygiene, State Budget FY2010 Operating Budget Detail, available at http://dbm.maryland.gov/dbm_publishing/public_content/dbm_search/budget/fy2010operbuddetail/hlthhosp.pdf.

[16] Child Welfare League of America National Data Analysis System, State Data Trends for Maryland , 2008, available at http://ndas.cwla.org/data_stats/states/Data_Trends/Maryland%20State%20Data%20Trends.pdf.

[17] Child Welfare League of America National Data Analysis System, State Data Trends for Connecticut , 2008, available at http://ndas.cwla.org/data_stats/states/Data_Trends/Connecticut%20State%20Data%20Trends.pdf.

[18] Compiled using data from the following sources: Americans United for Life, Defending Life 2009, available at http://dl.aul.org/ and Guttmacher Institute, State Policies in Brief: An Overview of Abortion Laws, March 2009, available at http://www.guttmacher.org/statecenter/spibs/spib_OAL.pdf.

[19] Id.   

[20] Id.

[21] Americans United for Life, Defending Life 2009, available at http://dl.aul.org/your-state.

[22] Washington Secretary of State News Release, Initiative #694 Gains Spot on November Ballot, July 27, 1998, available at http://www.secstate.wa.gov/office/osos_news.aspx?i=DCOBXgku1jV5DJH2KjJ5dA%3D%3D.

[23] Washington 1998 Initiative General Election Results, available at http://uselectionatlas.org/RESULTS/state.php?fips=53&year=1998&f=0&off=62&elect=0.

[24] Supra, note 19.

[25] Id.

[26] E.g. House Bill (2007), Washington State Legislature 2007, available at http://apps.leg.wa.gov/billinfo/summary.aspx?bill=1321&year=2007.

[27] Rob Stein, Study Finds Major Shift in Abortion Demographics, The Washington Post, September 23, 2008, page A03, available at http://www.washingtonpost.com/wp-dyn/content/article/2008/09/22/AR2008092202831.html?hpid=moreheadlines.

[28] Michael J. New, Using Natural Experiments to Analyze the Impact of State Legislation on the Incidence of Abortion, January 23, 2006, available at http://www.heritage.org/Research/Family/cda06-01.cfm.

[29] Id.

[30] CDC, Abortion Surveillance – United States , 2005, available at http://www.cdc.gov/mmwr/preview/mmwrhtml/ss5713a1.htm.