http://www.now.org/issues/abortion/070430foca.htmlFreedom of Choice Act would Guarantee Roe Protections in U.S. Statutes
Measure Would Sweep Away Hundreds of Anti-Abortion Laws, Policies
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April 30, 2007
In the wake of the U.S. Supreme Court's regressive ruling on April 18 in the two abortion ban cases, women's rights advocates in Congress have introduced the Freedom of Choice Act (FOCA) S. 1173/H.R. 1964. This legislation, if enacted, would override the Court's decision in the two cases, Gonzales v. Planned Parenthood and Gonzales v. Carhart, in which the court upheld vaguely-written bans that could prohibit the most commonly used and safest abortion procedures after 12 weeks of pregnancy.
In upholding these bans, five conservative Supreme Court justices have effectively overruled a core element of Roe v. Wade that had been reinforced in many Court decisions: the requirement that legislative restrictions on abortion must contain an exception to protect the woman's health. The gravity of the Court's decision as it relates to the health of all women of child-bearing age is immense. It is a giant leap toward overturning Roe and, at the same time, signals approval to the state legislatures with anti-abortion majorities to move forward with abortion ban bills that would go into effect when, and if, Roe falls completely.
With the two recent Bush-appointed justices—John Roberts and Samuel A. Alito, Jr.—and their anti-abortion-rights colleagues Antonin Scalia, Clarence Thomas and Anthony Kennedy, it seems only a matter of time that Roe will be overturned by the high court. States will then be allowed to re-criminalize abortion; doctors and their patients would face the threat of criminal investigation, prosecution, and even imprisonment. Doctors will not risk the consequences, and women's reproductive health clinics will close. We all know what will take their place.
The Freedom of Choice Act, if adopted into law, will restore the reproductive rights recognized in 1973 in Roe v. Wade and in Doe v. Bolton, before Congress, state legislatures and courts eroded these rights. Since Roe, hundreds of anti-reproductive-rights measures have been enacted by state legislatures and more are being considered with each legislative session. The sum total of these erosions, combined with extremists' clinic violence, have narrowed women's access to reproductive health services. Indeed, in many parts of the country and for many low-income women, the right to an abortion is meaningless for lack of providers and financial assistance.
Not wasting a moment, the Supreme Court on April 23 directed the lower courts to review earlier decisions that had overturned state abortion bans in Virginia and Missouri because they lacked exceptions to protect the health of the woman. Because the Supreme Court's April 18 decision discounts the necessity of a health exception, legal experts predict that the new reviews will result in the circuit courts upholding those state bans.
The Freedom of Choice Act would put a stop to this assault. We must work toward a future when there will be a feminist president in the White House and a supportive majority in the U.S. Senate and the House of Representatives!
Take Action: Write to your senators and write to your representative
Questions & Answers about FOCA
Q. If passed, how would FOCA affect women's reproductive freedom?
A. Once enacted, FOCA will protect a woman's right to an abortion by federal statute. This means that if our worst fear comes to pass and a newly constituted anti-choice Supreme Court overrules Roe v. Wade, women in the United States will have the protection of federal law in the exercise of their right to choose abortion. In addition, FOCA would immediately restore reproductive freedom for the millions of women who already face interference with their reproductive rights as a result of onerous state and federal restrictions.
FOCA will supers ede 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. Additionally, FOCA will prohibit onerous restrictions on this right, such as mandated delays and medically unnecessary regulations. As a result, women will be freed from improper governmental interference with their right to choose a pre-viability abortion. Women who require a post-viability abortion in order to preserve their lives or health will also be protected by FOCA. (Viability, the time at which a fetus is capable of sustained survival outside the womb, is determined medically on a case by case basis and cannot legally be established as occurring at a particular time for all women.) FOCA applies to measures enacted or implemented before, on, or after the date of its enactment.
Q. Does Congress have authority to enact FOCA?
A. Yes. Congress has ample authority under Article I § 8 and section 5 of the 14 th Amendment of the Constitution of the United States to enact this legislation. Congress has the authority to step in to ensure that a woman's fundamental rights are protected in all states and to prevent state interference with liberty or equal protection of the law. Commerce Clause authority is derived from the economic and interstate nature of abortion services. Abortion services are provided by medical professionals on a fee-for-service basis; many women travel across state lines to obtain abortion care; clinics purchase supplies from out of state; and employees often travel across state lines to work in clinics and hospitals. Therefore, Congress may enact legislation to create a national standard governing the provision of abortion services.
Q. Even if the Supreme Court overturns Roe v. Wade, won't states protect women's reproductive rights?
A. Not everywhere. In recent years, state legislators have enacted hundreds of anti-choice laws, from biased counseling and mandatory delays, restrictions on young women's access, targeted regulation of abortion providers, and separate legal status for embryos and fetuses. The situation will likely worsen dramatically if Roe is overturned. Also, women in many states could face sweeping criminal bans on abortion if Roe v. Wade is overturned. It is essential that the federal government step in to protect women since the states have such a wide disparity in protections for reproductive freedom. Liberty should not be a patchwork available only to women fortunate enough to live in a state that recognizes a woman's fundamental human right to decide whether to continue a pregnancy.
Q. Does FOCA go beyond the rights granted to women in Roe v. Wade?
A. Like the Supreme Court decision in Roe v. Wade, FOCA will prohibit state interference with a woman's right to an abortion prior to the point of viability. As under Roe, states will be able to prohibit abortion after viability, unless necessary to protect the woman's life or health. FOCA will restore the reproductive rights recognized under the 1973 Roe decision, before these rights were eroded by onerous state and federal restrictions aimed at curtailing women's ability to make reproductive decisions.
FOCA also forbids government from interfering with a woman's right to choose to bear a child. Moreover, it prohibits discrimination against the exercise of reproductive rights.
Q. Does FOCA prohibit states from limiting access to abortion services for minors?
A. FOCA prohibits states from enacting laws intended to deny or interfere with a woman's fundamental right to choose abortion. Minors have long been included within the protections of Roe. Parental consent or notification statutes have been used as a tool to deny access to abortion services for minors. When such laws deny or interfere with the ability of minors to access abortion services, they would violate FOCA.
Q. What would be the impact of FOCA on abortion procedure bans (so-called "partial-birth" abortion bans)?
A. FOCA would supersede the federal ban and any state ban, to the extent those bans restrict pre-viability abortion procedures, or post-viability procedures necessary to preserve a woman's health or life.
Q. What is the outlook for this legislation?
A. The current anti-abortion rights majorities in both the House and Senate will likely block any action on this legislation during this Congress, at least until the 2008 elections. In any case, success in the short term cannot be defined solely by passage of legislation, though FOCA's passage is an important goal. In the short term, this legislation allows the women's reproductive rights community to make important headway as a movement—politically, electorally, and in educating the public. It helps us to: (1) articulate our vision of what it means to support women's right to determine her own reproductive life (2) educate the public about the threat facing Roe at the Supreme Court and the many other efforts long underway to erode Roe's protections; and (3) mobilize and activate feminist activists as we build momentum for the serious battles that lie ahead.
The Q & A section was prepared by various reproductive rights organizations, including NOW.
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