Freedom of Choice Act

The Freedom of Choice Act (FOCA) was again introduced in Congress (H.R. 1964, S. 1173).  According to this bill, a government may not “deny or interfere with a woman’s right to choose” to bear a child or terminate a pregnancy, nor may it “discriminate against the exercise” of this right “in the regulation or provision of benefits, facilities, services, or information.” A person whose fundamental right to choose has been violated may seek relief through civil action, including against a government. The Act applies to all actions taken by Federal, State and local governments “before, on, or after the date of enactment of this Act.”

FOCA is a radical bill. If enacted, it would eliminate a broad range of existing abortion laws, significantly impede the ability of the government to regulate abortion, and override nearly 40 years of jurisprudential experience on abortion. Examples of the kinds of laws FOCA would overthrow include: informed consent laws; parental involvement laws; laws promoting maternal health; abortion clinic regulations; government programs and facilities that pay for or promote childbirth and other health care services without subsidizing abortion; conscience protection laws; laws prohibiting a particular abortion procedure (e.g., partial birth abortion); laws requiring that abortions only be performed by a licensed physician; and so on. FOCA would go well beyond Roe, imposing on the country an abortion regime that would be far worse. “It is difficult to recall any other single piece of legislation that, in a single stroke, would have such a comparable destructive impact on the government’s ability to regulate abortion.” Michael Moses, Office of General Counsel, U.S. Conference of Catholic Bishops, Memorandum, August 15, 2008. 

In a September 19, 2008 letter to Members of Congress, Cardinal Justin Rigali, Chairman of the USCCB Committee on Pro-Life Activities, raised grave concerns about any possible consideration of FOCA. The bill would remove from the states the freedom they now have to place modest restraints on the abortion industry and would run counter to any efforts by government to reduce abortion. The Cardinal declared: “We can’t reduce abortions by promoting abortion.” 

House: On April 19, 2007, Rep. Jerrold Nadler (D-NY) introduced the Freedom of Choice Act (FOCA) in the House (H.R. 1964); the measure had 109 cosponsors and was referred to the Judiciary Committee, Subcommittee on the Constitution, Civil Rights, and Civil Liberties.

Senate: On April 19, 2007, Sen. Barbara Boxer (D-CA) introduced the companion bill in the Senate (S. 1173); the measure had 19 cosponsors and was referred to the Judiciary Committee.

FOCA prohibits any government interference with the “fundamental right to choose” to bear a child or to terminate a pregnancy: “A government may not – (1) deny or interfere with a woman’s right to choose – (A) to bear a child; (B) to terminate a pregnancy prior to viability; or (C) to terminate a pregnancy after viability where termination is necessary to protect the life or health of the woman; or (2) discriminate against the exercise of the rights set forth in paragraph (1) in the regulation or provision of benefits, facilities, services, or information” (Sec. 4 (b)). Provision is made for an aggrieved individual to engage in a civil action even against a government. “An individual aggrieved by a violation of this section may obtain appropriate relief (including relief against a government) in a civil action” (Sec. 4 (c)). And the provisions of the Act apply even retroactively to actions taken by Federal, State and local governments. “This Act applies to every Federal, State, and local statute, ordinance, regulation, administrative order, decision, policy, practice, or other action enacted, adopted, or implemented before, on, or after the date of enactment of this Act” (Sec. 6).

FOCA is a radical bill. If enacted, it would eliminate a broad range of existing abortion laws, significantly impede the ability of the government to regulate abortion, and override nearly 40 years of jurisprudential experience on abortion. Examples of the kinds of laws FOCA would overthrow include: informed consent laws; parental involvement laws; laws promoting maternal health; abortion clinic regulations; government programs and facilities that pay for or promote childbirth and other health care services without subsidizing abortion; conscience protection laws; laws prohibiting a particular abortion procedure (e.g., partial birth abortion); laws requiring that abortions only be performed by a licensed physician; and so on. FOCA would go well beyond Roe, imposing on the country an abortion regime that would be far worse. “It is difficult to recall any other single piece of legislation that, in a single stroke, would have such a comparable destructive impact on the government’s ability to regulate abortion.” Michael Moses, Office of General Counsel, U.S. Conference of Catholic Bishops, Memorandum, August 15, 2008. See: nchla.org/docdisplay.asp?ID=190. A summary fact sheet for general use (“The ‘Freedom of Choice Act’: Most Radical Abortion Legislation in U.S. History”) can be found at: nchla.org/docdisplay.asp?ID=194.

In a September 19, 2008 letter to Members of Congress, Cardinal Justin Rigali, Chairman of the USCCB Committee on Pro-Life Activities, raised grave concerns about any possible consideration of FOCA. The bill would remove from the states the freedom they now have to place modest restraints on the abortion industry and would run counter to any efforts by government to reduce abortion. The Cardinal declared: “We can’t reduce abortions by promoting abortion.”

In conjunction with the U.S. Conference of Catholic Bishops, NCHLA launched a Fight FOCA Postcard Campaign. The target date for signing postcards was January 24-25, 2009. At nchla.org, various program materials were available: postcards (English and Spanish), educational flier (English and Spanish), parish instructions manual (with selected material translated into Spanish), as well as other educational and promotional materials (ads, fact sheets, legal memorandum).