To Invalidate Limits on Abortion
WASHINGTON (February 4, 2004) - - Leading pro-abortion members of Congress have introduced a new bill that would invalidate all federal, state, and local limitations on access to abortion.
At a press conference in the U.S. Capitol, hosted by Senator Barbara Boxer (D-Ca.), the so-called "Freedom of Choice Act" (FOCA) was endorsed by leaders of NARAL, the Planned Parenthood Federation of America, the National Abortion Federation, NOW, and other groups.
The Senate bill, introduced on January 22, is S. 2020. A day earlier, the same legislation was introduced in the House by Congressman Jerrold Nadler (D-NY) as H.R. 3719.
The promoters of the bill said that it would write into statutory law the provisions of Roe v. Wade, the 1973 Supreme Court decision that legalized abortion. But the plain language of the bill, as well as the explanations of the sponsors, show that the measure would invalidate the types of pro-life policies that the Supreme Court has allowed under Roe v. Wade.
"The claim that the bill would 'codify Roe' is just a marketing gimmick," explained NRLC Legislative Director Douglas Johnson. "The sponsors hope that lazy journalists and editorial writers will adopt that vague shorthand phrase, even though the sponsors have already admitted that the bill would nullify the types of abortion laws that the Supreme Court has said are permitted under Roe v. Wade."
"There are very few nations that have abortion policies as extreme as Roe v. Wade, but this bill is even more extreme," agreed John Cusey, staff director for the House Pro-Life Caucus.
By its actual language, the bill would invalidate any "statute, ordinance, regulation, administrative order, decision, policy, practice, or other action" of any federal, state, or local government or governmental official (or any person acting under government authority) that would "deny or interfere with" a woman's right to abortion.
This no-restriction policy would establish, in Boxer's words, "the absolute right to choose" prior to fetal "viability."
The no-restriction policy would also apply after "viability" to any abortion sought on grounds of "health." The bill does not define "health," but in the abortion context it has been defined by the Supreme Court to cover any physical or emotional consideration whatsoever, including "distress."
The term "viability" is usually understood to refer to the point at which a baby's lungs are developed to the point that he or she can in fact survive independently of the mother - - currently, about 23 or 24 weeks. However, the bill contains no objective criteria for "viability," but rather, explicitly provides that only the doctor involved can declare whether "viability" exists for a given baby.
These no-restriction policies would apply to any type of abortion, including partial-birth abortion.
In a press release issued on January 22, Senator Boxer gave a number of examples of current laws that would be invalidated by the bill, including:
· Laws restricting government funding of abortion. (The Hyde Amendment prohibits federal funding of most abortions, and many states have similar laws. The U.S. Supreme Court ruled in 1980 that these laws do not violate Roe v. Wade.)
· Laws prohibiting abortions in public hospitals. (The Supreme Court ruled in 1977 that such policies do not violate Roe v. Wade.)
· Laws requiring that girls and women seeking abortion receive certain information on matters such as fetal development and alternatives to abortion, and then wait a specified period before the abortion is actually performed, usually 24 or 48 hours. In her press release, Boxer referred to these as "antichoice propaganda lectures." (The Supreme Court said in its 1992 Casey ruling that such regulations are constitutional as long as they do not impose an "undue burden" on obtaining an abortion.)
Johnson said that a number of other types of laws, not mentioned specifically by Boxer, would clearly be invalidated by the bill, including:
· All laws allowing doctors, nurses, or other state-licensed professionals, and hospitals or other health-care institutions, to conscientiously object to performing or participating in abortions. (This right is generally protected in federal programs and in the laws of most states. Supporters of the laws usually call them "conscience laws," but pro-abortion groups refer to them as "refusal clauses.")
· All laws requiring notification to, or consent of, a parent or judge before an abortion is performed on a minor. (Half of the states have such laws in effect, which the Supreme Court has said are permitted under Roe v. Wade as long as they meet certain requirements, including availability of judges to authorize abortions without parental notification.)
· All laws prohibiting medical personnel other than licensed physicians from performing abortions. (All but a handful of states currently enforce such "doctor-only" laws, which are specifically authorized in Roe v. Wade itself.)
The bill also would invalidate any law or any action by any government official that would "discriminate against the exercise of" the abortion right in the regulation or provision of any "benefits, facilities, services, or information."
"This sweeping mandate means, among other things, that a statement or action by any government official, including any elected official, and any government program of any kind, could be legally attacked if someone thought it discriminated against abortion," Johnson explained. "This sweeping mandate would cover everything from rural health clinics, to health education programs in public schools, to pro-life speeches by public officials."
The bill also prohibits any government actions that would "deny or interfere with a woman's right to choose to bear a child," but Boxer and the groups gave no examples of any laws that would be invalidated by that provision.
"The U.S. Senate is currently split 53-47 in favor of Roe v. Wade, but even some senators who support Roe v. Wade would not vote for anything as extreme as the FOCA," Johnson explained. "Those promoting this bill intend it to be a litmus test for those who hold or seek congressional office, and a fund-raising tool - - they know they have no hope of passing it while the President and the leadership of both houses of Congress are pro-life."
An earlier version of the FOCA was pushed by pro-abortion forces beginning in the late 1980s, when they feared that the Supreme Court was preparing to overturn Roe v. Wade. When President Clinton, a FOCA supporter, took office in January 1993, Planned Parenthood predicted that the FOCA would be law within six months. But the bill died after an education and lobbying campaign led by NRLC persuaded many pro-Roe lawmakers that the bill went beyond Roe and would strike down many state laws that had broad support.
The original FOCA faded from view after Republicans took control of the House of Representatives in the 1994 election.
Johnson noted that during the fight over the earlier FOCA, proponents of the bill often tried to deny certain effects that they have already admitted with respect to the new bill, such as the invalidation of all restrictions on government funding of abortion.
The bill would "strike down a host of federal and state restrictions," NOW President Kim Gandy said in a press release endorsing the measure.
In her press release, Boxer referred to a "one-vote margin protecting Roe in the Supreme Court," but in reality, the current Supreme Court is split 6-to-3 in favor of Roe v. Wade. (See "Old Myths Resurface About Roe v. Wade and Partial-Birth Abortion," February 2003 NRL News, page 12, and www.nrlc.org/abortion/pba/roevwademyths.html.)
You can read the text of the "Freedom of Choice Act" and of Senator Boxer's January 22 press release at the NRLC website at www.nrlc.org, under "Legislation: 'Freedom of Choice Act.'" You can view an always-current list of cosponsors of the bill (S. 2020, H.R. 3719) on the NRLC website at the "Legislative Action Center," under "Issues and Legislation."