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FOCA: Read it for yourself

Update: February 6, 2009 – As of this writing, FOCA has not yet been reintroduced into Congress, I searched the official federal legislation site THOMAS using the word abortion. There are now 15 bills relating to abortion before Congress, but not FOCA.

If someone finds a reintroduced FOCA some other way, please leave a bill number or a sponsor in comments and I’ll go look it up. I’ll also try to update this post every few days, since it seems so popular.

Perhaps instead of spending time fighting legislation that does not yet exist, you might consider researching and possibly supporting one of the following:

Title: A bill to provide for programs that reduce the need for abortion, help women bear healthy children, and support new parents.
Sponsor: Sen Casey, Robert P., Jr. [PA] (introduced 1/15/2009)


H.R.605 : To provide for programs that reduce the need for abortion, help women bear healthy children, and support new parents.
Sponsor: Rep Davis, Lincoln [TN-4] (introduced 1/16/2009)

———————————-Original Post————————-

According to Google Blog Search, a lot of digital ink is being spilled over the Freedom of Choice Act. It’s either a massive expansion of abortion in America or its a codification of the status quo. I’m not here to offer an opinion today. I may offer one later if it gets introduced and sees legislative action next year. The bill is dead this year. Neither the House nor Senate bill got out of committee. No action had been taken on either version since April 2007 in the Democratic controlled Congress.

Today I have one simple purpose – to have you read the text for yourself and make up your own mind. Don’t let other people tell you what to think about it. Read it and come to your own conclusions. Regardless of whether you endorse or oppose it, contact your Members of Congress about whether you’d like to see it reintroduced next year. But do so after reading the bill.

The text below is courtesy of OpenCongress is of the Senate version, S. 1173. As far as I can tell, the House text is identical.


1st Session

S. 1173

To protect, consistent with Roe v. Wade, a woman’s freedom to choose to bear a child or terminate a pregnancy, and for other purposes.


April 19, 2007

Mrs. BOXER (for herself, Mrs. MURRAY, Ms. STABENOW, Mr. BINGAMAN, Mr. MENENDEZ, Mr. LAUTENBERG, Mr. CARDIN, Mr. SCHUMER, Mrs. CLINTON, Mrs. FEINSTEIN, Ms. MIKULSKI, Mr. BAUCUS, and Ms. CANTWELL) introduced the following bill; which was read twice and referred to the Committee on the Judiciary


To protect, consistent with Roe v. Wade, a woman’s freedom to choose to bear a child or terminate a pregnancy, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,


This Act may be cited as the `Freedom of Choice Act’.


Congress finds the following:

(1) The United States was founded on core principles, such as liberty, personal privacy, and equality, which ensure that individuals are free to make their most intimate decisions without governmental interference and discrimination.

(2) One of the most private and difficult decisions an individual makes is whether to begin, prevent, continue, or terminate a pregnancy. Those reproductive health decisions are best made by women, in consultation with their loved ones and health care providers.

(3) In 1965, in Griswold v. Connecticut (381 U.S. 479), and in 1973, in Roe v. Wade (410 U.S. 113) and Doe v. Bolton (410 U.S. 179), the Supreme Court recognized that the right to privacy protected by the Constitution encompasses the right of every woman to weigh the personal, moral, and religious considerations involved in deciding whether to begin, prevent, continue, or terminate a pregnancy.

(4) The Roe v. Wade decision carefully balances the rights of women to make important reproductive decisions with the State’s interest in potential life. Under Roe v. Wade and Doe v. Bolton, the right to privacy protects a woman’s decision to choose to terminate her pregnancy prior to fetal viability, with the State permitted to ban abortion after fetal viability except when necessary to protect a woman’s life or health.

(5) These decisions have protected the health and lives of women in the United States. Prior to the Roe v. Wade decision in 1973, an estimated 1,200,000 women each year were forced to resort to illegal abortions, despite the risk of unsanitary conditions, incompetent treatment, infection, hemorrhage, disfiguration, and death. Before Roe, it is estimated that thousands of women died annually in the United States as a result of illegal abortions.

(6) In countries in which abortion remains illegal, the risk of maternal mortality is high. According to the World Health Organization, of the approximately 600,000 pregnancy-related deaths occurring annually around the world, 80,000 are associated with unsafe abortions.

(7) The Roe v. Wade decision also expanded the opportunities for women to participate equally in society. In 1992, in Planned Parenthood v. Casey (505 U.S. 833), the Supreme Court observed that, `[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.’.

(8) Even though the Roe v. Wade decision has stood for more than 34 years, there are increasing threats to reproductive health and freedom emerging from all branches and levels of government. In 2006, South Dakota became the first State in more than 15 years to enact a ban on abortion in nearly all circumstances. Supporters of this ban have admitted it is an attempt to directly challenge Roe in the courts. Other States are considering similar bans.

(9) Further threatening Roe, the Supreme Court recently upheld the first-ever Federal ban on an abortion procedure, which has no exception to protect a woman’s health. The majority decision in Gonzales v. Carhart (05-380, slip op. April 18, 2007) and Gonzales v. Planned Parenthood Federation of America fails to protect a woman’s health, a core tenet of Roe v. Wade. Dissenting in that case, Justice Ginsburg called the majority’s opinion `alarming’, and stated that, `[f]or the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman’s health’. Further, she said, the Federal ban `and the Court’s defense of it cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court’.

(10) Legal and practical barriers to the full range of reproductive services endanger women’s health and lives. Incremental restrictions on the right to choose imposed by Congress and State legislatures have made access to reproductive care extremely difficult, if not impossible, for many women across the country. Currently, 87 percent of the counties in the United States have no abortion provider.

(11) While abortion should remain safe and legal, women should also have more meaningful access to family planning services that prevent unintended pregnancies, thereby reducing the need for abortion.

(12) To guarantee the protections of Roe v. Wade, Federal legislation is necessary.

(13) Although Congress may not create constitutional rights without amending the Constitution, Congress may, where authorized by its enumerated powers and not prohibited by the Constitution, enact legislation to create and secure statutory rights in areas of legitimate national concern.

(14) Congress has the affirmative power under section 8 of article I of the Constitution and section 5 of the 14th amendment to the Constitution to enact legislation to facilitate interstate commerce and to prevent State interference with interstate commerce, liberty, or equal protection of the laws.

(15) Federal protection of a woman’s right to choose to prevent or terminate a pregnancy falls within this affirmative power of Congress, in part, because–

(A) many women cross State lines to obtain abortions and many more would be forced to do so absent a constitutional right or Federal protection;

(B) reproductive health clinics are commercial actors that regularly purchase medicine, medical equipment, and other necessary supplies from out-of-State suppliers; and

(C) reproductive health clinics employ doctors, nurses, and other personnel who travel across State lines in order to provide reproductive health services to patients.


In this Act:

(1) GOVERNMENT- The term `government’ includes a branch, department, agency, instrumentality, or official (or other individual acting under color of law) of the United States, a State, or a subdivision of a State.

(2) STATE- The term `State’ means each of the States, the District of Columbia, the Commonwealth of Puerto Rico, and each territory or possession of the United States.

(3) VIABILITY- The term `viability’ means that stage of pregnancy when, in the best medical judgment of the attending physician based on the particular medical facts of the case before the physician, there is a reasonable likelihood of the sustained survival of the fetus outside of the woman.


(a) Statement of Policy- It is the policy of the United States that every woman has the fundamental right to choose to bear a child, to terminate a pregnancy prior to fetal viability, or to terminate a pregnancy after fetal viability when necessary to protect the life or health of the woman.

(b) Prohibition of Interference- 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.

(c) Civil Action- An individual aggrieved by a violation of this section may obtain appropriate relief (including relief against a government) in a civil action.


If any provision of this Act, or the application of such provision to any person or circumstance, is held to be unconstitutional, the remainder of this Act, or the application of such provision to persons or circumstances other than those as to which the provision is held to be unconstitutional, shall not be affected thereby.


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.


4 Responses

  1. I don’t read past paragraph 1 in Sec 2 Findings.

    Congress finds the following:

    (1) The United States was founded on core principles, such as liberty, personal privacy, and equality, which ensure that individuals are free to make their most intimate decisions without governmental interference and discrimination.

    They forgot the first core principle: Life. My version of the US Constitution says endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.

  2. Hi Ellen,

    With respect, I think you are only hurting yourself and your advocacy by not reading the whole Act. When you write your legislators or talk to people in your state, you’d be more persuasive if you articulated *how* the Act disregards life. Just saying “All of it does” allows your opponents to dismiss you and doesn’t give fencesitters any information to join your view.

    Also, the phrase “endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness” does not come from the US Constitution, but rather from the Declaration of Independence.

  3. I suggest you continue on your idea of helping people read and understand for themselves by also publishing links to explain the impact of the passage of this bill. Encourage readers to understand impact such as:

    Some of the supporters of the “Freedom of Choice Act” state that it merely codifies Roe v. Wade. This could not be further from the truth. As the American Civil Liberties Union said in its Reproductive Rights Update from December 20, 1991, “This [FOCA] bill prohibits such restrictions as parental notification and consent, as well as the requirement that all abortions be performed in a hospital, spousal consent, waiting periods …” If FOCA were to pass both chambers of Congress and be signed by our new President, it will single-handedly overturn countless laws that have passed in the states in relation to abortion.

    Focusing On FOCA: ‘Freedom Of Choice Act’ Would Harm Women And Remove Freedoms
    by Tom McClusky
    Family Research Council


    Daniel’s note:

    Hi Donna,

    I deleted the bulk of your comment because it was an unattributed cut and paste from the Family Research Council. I think using that much of the article violates copyright law and using it without attribution isn’t fair to Tom McClusky and Laura Myers of the Family Research Council who put a lot of work into the original article and who deserved credit for it.

    I found the article by running a few sentences from your comment through Google and then comparing the your comment with the article. After your first paragraph, the rest of the comment read exactly like the FRC article starting with the section I put into a block quote.

  4. Hi Donna,

    I definitely support your idea that people should do research and educate themselves on the issue. I encourge them to check out the Family Research Council article you found and used in your comment and follow their sources. Or use other resources.

    As for me, I’m not planning to do any more new writing on FOCA unless it gets reintroduced in the current Congress. The last FOCA bills died with the old Congress. Nothing new can happen until new bills are introduced.

    On January 16, 2009, I searched the official Congressional legislation site THOMAS and the unofficial but user friendly Open Congress site. Neither site showed me a new FOCA bill.

    I’m going out on a limb and suggest that 1) FOCA is unlikely to be reintroduced and 2) If it is, it is unlikely to move out of it’s first committee of referral and get voted on. There are at least reasons why I think this is a likely outcome:

    1) It would be political suicide for the Democrats and political ressurection for Republicans. Barack Obama ran a very pragmatic campaign which avoided demonizing the other side. He’s invited Rick Warren to give an Inaugural prayer. The Democrats have a lengthy agenda of economic stimulus, health care and ending the occupation of Iraq. Why give this up to grab one of the most divisive issues in the country and a guranteed fundraiser for Republicans? If they don’t pass FOCA, it’s not like the pro-choicers will go Republican.

    2) Democrats did not gain a filibuster-proof majority. They don’t have the magic 60 votes. Even if they did, there are enough pro-life Democrats like Robert Casey of Pennsylvania who would join a Republican filibuster to derail FOCA in the Senate.

    I agree with you that FOCA as it stands would do more than codify Roe v. Wade and is bad legislation. But Congress is full of bad legislation that doesn’t get past first base. I want to spend my energy on bills under active consideration. If and when FOCA is reintroduced and seems like it has (forgive me) a prayer of passing, I will fight it just like I’ve fought against other legislation and bad policy.

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