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October 28, 2008
Expect Obama to Sign FOCA in the First 100 Days
By Father Thomas Berg *

By Father Thomas Berg *

The pundits are beginning to ponder in earnest what might transpire during the first 24 months of an Obama administration. The more obvious contentions foresee him raising taxes on high earners, ratcheting up trade protections, overseeing the retooling of financial regulations, and so on.  What many seem to have overlooked is one factoid:  Barack Obama is an enthusiastic supporter of the Freedom of Choice Act or FOCA. In fact, on July 17, 2007, he told the Planned Parenthood Action Fund: "The first thing I'd do as President is sign the Freedom Of Choice Act."

 

Sponsored by Senator Barbara Boxer (D-Ca) in the Senate (S. 1173), and Representative Jerrold Nadler (D-NY) in the House (HR 1964), FOCA is a piece of legislation designed "to prohibit, consistent with Roe v. Wade, the interference by the government with a woman's right to choose to bear a child or terminate a pregnancy, and for other purposes."

 

In fact, FOCA, if it became law, would go well beyond Roe, sweeping away all limits on abortion -- state and federal -- including restrictions on government funding of abortion and conscience protections for healthcare providers. We have no reason to believe Obama would hesitate to sign FOCA into law as soon as it were to passed by the 111th Congress -- a probable outcome in early 2009 if Democrats gain enough new seats in November.

 

To find out more about FOCA and its potential cultural impact, I recently spoke with Susan E. Wills, Assistant Director for Education and Outreach at the Committee on Pro-Life activities of the United States Conference of Catholic Bishops. Here is what Susan had to say.

 

Berg: Where did FOCA come from? What is its history on the Hill?

 

Wills: FOCA has been introduced in Congress multiple times, in various versions, since at least 1989. Cosponsoring FOCA has become a sort of "oath of fealty" to Planned Parenthood and NARAL for those members of Congress most beholden to the abortion industry for their election. Its popularity has been limited to the hard core extremists on abortion -- those, for example, who support even late-term abortions by the barbaric partial-birth abortion method. In the past, FOCA has not posed an imminent danger to the status quo. I can't recall a time in the past 20 years when we've faced the possibility of a pro-choice majority in both Houses of Congress and a President willing to sign such a bill. The threat of a veto under President Bush during the past 8 years has kept recent versions of the bill from going anywhere.

 

The current version of FOCA was introduced just hours after the Supreme Court's decision in Gonzales v. Carhart upholding the federal ban on partial-birth abortion. Congressman Jerrold Nadler (D-NY) explained the rationale and timing of FOCA in an April 18, 2007 "Dear Colleague" letter: "Today, the Supreme Court declared open season on women's lives and their right to control their own bodies, their health and their destinies." The current Senate version (S. 1173) attacks Carhart for "threatening" Roe v. Wade and failing to protect women's health.  Co-sponsors in the House version (H.R. 1964) number 109 and Senate cosponsors number 19.

 

Berg: If FOCA were to be signed into law by the next president, what series of immediate consequences do you foresee, and what would be the long-term consequences?

 

Wills:  FOCA would call into question virtually every abortion-related state and federal law currently in force. It would immediately supersede every federal law, such as the partial-birth abortion ban, restrictions on federal funding of abortion through Medicaid, and the ban on abortions in military hospitals. On the authority of FOCA, state laws protecting the lives of unborn children and their mothers could be immediately unenforceable. All the modest and reasonable state laws of the past 35 years (which have also been successful in reducing abortions) would fall to legal challenges based on FOCA. These include the following laws: protecting parental rights to be involved in an abortion decision, ensuring informed consent, regulating abortion clinic "safety," protecting the conscience rights of doctors, nurses and hospitals to not be involved in abortion, and protecting women from non-physician abortionists among others. Significantly, taxpayers could also be forced to fund abortions for the uninsured.

FOCA not only looks backward -- invalidating all these and other abortion regulations, laws, policies, practices, actions, etc.; it also forbids all governments (state, federal, local, agencies, officials, etc.) in the future from denying or interfering with a woman's "right to choose" and forbids them from "discriminat[ing] against the exercise of the[se] rights... in the regulation or provision of benefits, facilities, services, or information."

So any time the government addresses childbirth, it must address abortion equally favorably -- superseding prior Supreme Court precedents. Public hospitals which offer maternity services must offer abortion services. Health benefits for pregnant uninsured women must include abortion services.

 

It's tough to gauge the long-term consequences of FOCA. A future Congress could, of course, pass legislation to undo the law. We can say with certainty that evil would occur at an even greater scale in the interim.

Modest regulations of abortion -- funding restrictions, informed consent and parental involvement laws in particular -- have been proven to be very effective in reducing abortion rates in the United States. In their absence, abortions would certainly go up. One researcher estimates an increase of 125,000 abortions annually. How does one gauge the impact on health care? Fewer hospitals offering maternity services, fewer doctors and nurses engaged in obstetrics so they won't be forced to violate their consciences? The mental health toll on parents of aborted children, the increased incidence of premature births and low-birth-weight infants due to a prior abortion with associated health problems like cerebral palsy: it's impossible to calculate the full extent of the harm to individuals and society without even touching on the slippery slope of the culture of death or the spiritual consequences of abortion. Perhaps it will take a law as extreme as FOCA to awaken people to the already appalling extent of abortion law in America.

Berg: If FOCA becomes law, would the pro-life movement be forced to concede: 'game over'?

 

Wills:  Any inclination to declare "game over" will have to be resisted with energy and determination. Overturning Roe is imperative, but it is only one aspect of what Catholics and other pro-lifers have been doing for 35 years. FOCA -- if enacted -- will shut off legislative avenues for the immediate future, so we'll need to step up our ongoing efforts in other areas:

 

  1. Electing representatives who are pro-life and vigorously lobbying those who aren't about our fundamental opposition to killing all innocent human beings;
  2. Educating about the value and dignity of human life (and the inhumanity and risks of abortion);
  3. Encouraging abstinence among teens and young adults (teen abortion rates have dropped 60% since 1984 largely due to increased abstinence, not contraceptives); and
  4. Expanding pregnancy-support services.

 

Americans oppose almost all abortions, but many have failed to understand their personal responsibility to oppose abortion by electing people who will uphold the dignity of human life. The October Marist poll, commissioned by the Knights of Columbus, again demonstrated that only 8% of Americans support unlimited abortion policy (for all nine months for any reason). Fully 60% of Americans would restrict abortion to the "hard cases" of rape, incest, of risk to the mother's life. But we have not succeeded in helping them connect the dots between their pro-life convictions and who they elect to the Senate and who sits on the Supreme Court (or who they elect to their state and federal legislatures and the kind of policies that get enacted).

 

Berg: Assuming FOCA fails and that Roe is overturned in the next couple of years: how exactly will that impact the availability of abortion and the pro-abortion mentality? How do you see that all playing out?

 

Wills: Law is a teacher and the more secular a society becomes, the more people turn to law (rather than the teaching of faith traditions) for their moral compass. Roe taught generations that an unborn child is not really a human being worthy of protection and it taught generations that one did not have to be married to conceive a child or be responsible for that child's life. The government condoned and promoted sexual activity outside of marriage and the callous disregard of children's rights by providing the escape route of abortion: "Don't worry, kids. If you get pregnant, we won't allow you to be 'punished with a baby'."

 

Laws that foster irresponsibility produce unintended consequences. Young men began to see abortion as an entitlement and many have become coercive, even to the point of causing the death of their unborn child when the mother resists an abortion.

 

When Roe is overturned, the pro-life beliefs of the majority of Americans will be validated and reinforced. Obviously abortion will continue to be available under almost all circumstances in a dozen or more states whose populations lean pro-choice, but I think the stigma associated with killing innocent unborn children will return. Already the number of abortion providers has fallen to under 1,800. Many providers are in their sixties already and would probably retire rather than relocate states where abortion would remain legal. The absence of providers does have a dramatic impact on abortions. For example, after one of two abortionists in Mississippi was indicted on dozens of counts of malpractice and violations of state abortion regulations, abortions in that state dropped 60%. Interestingly, parental involvement regulations have been shown to reduce both teen abortions and teen pregnancy rates without increasing teen birth rates. Clearly, kids are capable of avoiding behavior that could get them in trouble with their parents.

 

* * *

Cardinal Justin Rigali of Philadelphia addressed a letter to all members of Congress on the matter of FOCA on September 19th in which he reminded elected representatives that:

 

We can't reduce abortions by promoting abortion. We cannot reduce abortions by invalidating the very laws that have been shown to reduce abortions... No one who sponsors or supports legislation like FOCA can credibly claim to be part of a good-faith discussion on how to reduce abortions.

 

Now, is there any part of what Susan just shared or what the Cardinal states here that does not make perfect sense? I don't think so.

 

Thanks to Susan Wills for taking the time to talk about this transcendent issue. And I alert my readers that you can find an extremely useful FOCA fact sheet here and many other useful FOCA-related articles and materials here, courtesy of the USCCB Committee on Pro-Life activities.  

Father Thomas Berg is a priest in the Archdiocese of New York and Professor of Moral Theology at St. Joseph’s Seminary (Dunwoodie).

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