Freedom of Choice Act 101

What it is, and why more babies’ lives hang in the balance

Maria Wiering

Catholic Spirit - Saint Paul and Minneapolis, MN

January 13, 2009

“Dear Senator . . . Please oppose FOCA or any similar measure, and retain laws against federal funding and promotion of abortion. . . .”

The U.S. bishops are launching a postcard campaign Jan. 24 and 25 to urge members of Congress to oppose the Freedom of Choice Act, which would eliminate laws restricting abortion in the United States.

Parishioners at archdiocesan parishes should receive postcards between the last weekend in January and first two weeks of February, said Sharon Wilson, respect life coordinator for the Office of Marriage, Family and Life.

The postcards will be sent to Minnesota members of Congress as part of the nationwide campaign.

What is it?

FOCA is a bill in Congress with far-reaching consequences for the pro-life movement.

According to a legal analysis by the  U.S. Conference of Catholic Bishops’ Office of General Counsel: “If FOCA were enacted, it would wipe out a very large number of existing state laws on abortion, substantially impede the ability of states to regulate abortion, and override nearly 40 years of jurisprudential experience on the subject of abortion.”

In effect, FOCA would undermine almost every gain the pro-life movement has made over the past 35 years, said Bill Poehler, communications associate with Minnesota Citizens Concerned for Life.

“We’re talking about something that goes so much further than Roe v. Wade,” Poehler said, referring to the 1973 Supreme Court ruling that legalized abortion through all nine months of pregnancy. “It just gives a free hand to the abortion industry to do whatever they want.”

FOCA states that a woman’s decision to choose to bear a child or have an abortion is a “fundamental right.” It would impede the government from denying or interfering with a woman’s decision?to:

• bear a child.

• terminate a pregnancy prior to the fetus’ viability.

• terminate the pregnancy after its viability, where termination is “necessary to protect the life or health of the woman.”

The law also would not allow the government to discriminate against this “right” when providing benefits, facilities, services or information to the public.

Endangered laws

FOCA would endanger a wide range of regulatory laws upheld under Roe v. Wade and cases applying to it.

According to the language of the bill, FOCA would invalidate any “Federal, State and local statute, ordinance, regulation, administrative order, decision, policy, practice, or other action” that would deny or interfere with a woman’s “right to choose” abortion.

“By outlawing any interference with the abortion decision, FOCA would bar a broad range of abortion regulations, however slight or “de minimis” their impact on the woman’s right to choose,” the USCCB’s general counsel stated.

According to the findings of the general counsel, FOCA would likely invalidate:

• Informed consent laws.

• Parental notification laws.

• Laws promoting maternal health, if they result in an increased cost for abortions.

• Abortion clinic regulations, even those designed to make abortion safer for women.

• Government programs that pay for, provide or insure childbirth or health care services, but not abortion.

• Laws protecting the conscience rights of doctors, nurses and hospitals, if those laws create even minimal delay or inconvenience in obtaining an abortion or treat abortion differently than other medical practices.

• Laws prohibiting particular abortion procedures, such as partial-birth abortion.

• Laws requiring that abortions only be performed by a licensed physician.

• Laws prohibiting abortion after viability except when necessary to prevent significant, physical harm to the woman.

• Laws requiring a brief waiting period before an abortion is performed.

• Laws preventing post-viability sex-selection abortions where a mental health reason is asserted for the abortion.

• Laws requiring that abortion providers maintain certain records with respect to performed abortions.

• Laws preventing the carrying to term of a cloned human embryo, possibly including laws preventing the implantation of an existing cloned embryo for purposes of bearing the child (sometimes known as bans on “reproductive cloning”).

(For FOCA’s potential impact in Minnesota, click HERE.)

FOCA history

Versions of FOCA have been in congress for 20 years, but the only year the bill moved forward in Congress was 1993, when Democrats controlled the House, Senate and the White House for the first time in 12 years. However, the bill never came up for  debate or a vote in the House or Senate. The most recent version was introduced in 2004.

The bill attracted national attention when President-elect Barack Obama promised the Planned Parenthood Action Fund in a July 2007 campaign speech that FOCA would be one of the first bills he would sign should it be passed and he were elected president. He co-sponsored the bill as a U.S. senator.

What should we expect?

All pending bills expire at the end of each two-year congressional session, so FOCA would have to be reintroduced this session. As of  press time for this issue, FOCA had not yet been introduced. After introduction in both the House and the Senate, both chambers would have to pass it before Obama could sign it into law.

According to a Nov. 26 Catholic News Service story, some experts think it would be unlikely for FOCA to pass this session. However, other pro-life advocates think there is a good chance the bill could be put to a vote.

“Congress has the most pro-abortion members since 1983, so any legislation proposed, whether it’s FOCA or FOCA-like . . .  has very real traction in this Congress,” said Deirdre McQuade, assistant director for policy and communications for the USCCB Secretariat of Pro-Life Activities.

“We have to see FOCA and the FOCA agenda as an incredible threat to past gains in the pro-life arena,” she added.

MCCL also thinks there is a good chance FOCA could pass this session, Poehler said. If put to a vote, the vote would likely be very close, he added.

“We’re not talking about an impossibility; we’re talking about something that is very likely to be passed,” Poehler said. “It’s going to require people really to make their will known with their federal lawmakers.”

What can I do?

While the U.S. bishops are leading a postcard campaign, other pro-life organizations, like MCCL’s national affiliate, the National Right to Life Committee, are also urging citizens to contact members of Congress.

The U.S. bishops are asking Catholics to take time to fill out a postcard and send it to their two senators and congressional district representative. The card requests members of Congress to notify the card sender about how he or she would vote on abortion issues.

Physical mail may have a larger impact on members of Congress than the more common electronic correspondence, McQuade said. “Physical mail is harder to ignore than e-mail,” she noted.

While the postcards may also help to persuade some lawmakers to vote against FOCA, they also educate the senders, McQuade added.

Through receiving postcards, even lawmakers who staunchly support “abortion rights” will be made aware that the pro-life voice is strong and organized, she said.

“The cards may play a role in Congress never bringing this to light, in which case we could claim a preemptive victory because they saw [FOCA] would just not fly with the general public,” McQuade said. ?

Catholic News Service contributed to this service

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