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What FOCA Really Does

The Freedom of Choice Act (FOCA) is an oppressive law mandating participation and cooperation from every American citizen in unlimited abortion.
by Karen M. Berkon | Source:

Currently, FOCA is out of committee but still awaits passage through Congress, and with the sweeping Democratic victories in the House and Senate in this past election, that could happen very soon. President-elect Barack Obama declared to a Planned Parenthood gathering on July 17, 2007, that the first thing he would do as president of the United States would be to sign the Freedom of Choice Act.

Just how will FOCA affect abortion rights and the pro-life movement in this country? FOCA’s “Statement of Policy” reads:

“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.”

Keep in mind the phrase “fundamental right,” for it is the key to understanding the intent of FOCA. Historically, the right to abortion became law in 1973 with the Roe v. Wade Supreme Court decision that established a woman’s right to abortion based on the 14th Amendment of the U.S. Constitution, and subsequently, restricted state laws on abortion. The 1992 Planned Parenthood v. Casey decision loosened those restrictions, giving states greater autonomy with regard to abortion regulation.

Since then, laws have been passed to exempt taxpayers from funding abortions both nationally, in 1976 via the Hyde Amendment, and internationally, in 2001 when President Bush restored the Mexico City Policy.

Currently, many states have parental-notification laws for minors seeking an abortion, conscience clauses exempting health-care workers and providers from participating in abortions, informed-consent laws which require consequential information for women seeking abortions, as well as various state restrictions on late-term abortions. The Partial-Birth Abortion Ban, which requires the partial extraction of a fetus from the birth canal before the abortionist performs the abortion, was upheld by the Supreme Court on April 18, 2007.

In response, the following day, Sens. Barack Obama and Hillary Clinton and others reintroduced the Freedom of Choice Act (

What will happen if and when FOCA is signed into law? Part B of Section 4, “Prohibition of Interference” clearly states, “A government may not — deny or interfere with a woman’s right to choose — to bear a child; to terminate a pregnancy prior to viability; or to terminate a pregnancy after viability where termination is necessary to protect the life or health of the woman; or discriminate against the exercise of the rights set forth in paragraph (1) in the regulation or provision of benefits, facilities, services or information.”

In essence, this statement challenges all state laws restricting abortion, the Hyde Amendment, the Mexico City Policy and the Supreme Court’s Partial-Birth Abortion Ban. The result: Taxpayers will be required to pay for abortion on demand. Health-care providers will have to offer abortion benefits, and health-care workers will no longer be able to invoke the conscience clause. In addition, late-term restrictions on abortion will be revoked, and the Partial-Birth Abortion Ban will be nullified. Parental authority will be undermined as teens have access to abortion anywhere in the country without their parents’ knowledge or consent.

This is a reversal of 35 years of laws, statutes and public and private efforts to decrease the number of abortions. According to the Guttmacher Institute, abortions have declined from a peak of 1.6 million in 1990 to 1.2 million in 2005, a 25% decrease ( Could this trend be attributable to abortion regulation as well as education and crisis-pregnancy assistance? Recent polls show that Americans are uncomfortable with abortion on demand and want some restrictions.

The final clause in Section 4 of FOCA is very telling about an additional intention of this legislation. It is titled “Civil Action” and states, “An individual aggrieved by a violation of this section may obtain appropriate relief (including relief against a government) in a civil action.”

“Aggrieved” and “violation” are undefined and open to interpretation of what constitutes a grievance.

For example, if a sermon preached by a pastor or member of the clergy causes a woman who has had an abortion to feel discriminated against and consequently aggrieved, does this constitute a violation of FOCA? Can that church be sued or forfeit its tax-exempt status for such a violation?

What about people who pray or do sidewalk counseling outside of abortion clinics?

If a client is aggrieved by their presence, can the client sue on the basis of FOCA?

Could large-scale anti-abortion demonstrations, such as the March for Life, held annually on the anniversary of Roe v. Wade, become defendants of “Civil Action” or class-action law suits simply because they cause grievance on the basis of FOCA? Depending on its interpretation, this law could have tentacles that reach into the private lives and pro-life discourse of every American citizen.

Clearly this legislation means to silence dissent and, in turn, the entire pro-life movement.

Recall the phrase “fundamental right.” What is actually at the heart of this legislation is the elevation of abortion to a “fundamental right” at all stages of development inside and outside of the womb.

Other fundamental rights are the right to vote and the right of free speech. By definition, a fundamental right is foundational. In the Declaration of Independence, life, liberty and the pursuit of happiness are enshrined as foundational principles.

One might infer that if FOCA is passed by Congress and signed into law by President Barack Obama, it will establish abortion as a fundamental right and also a foundational principle. We should think deeply and seriously before giving such lofty status to the practice of abortion.

Americans by nature love children and desire what is best for them. All children, including unborn children, are human persons with dignity and value and should be accorded the equal rights of a just society.

Given time and nurturing, these tiny human beings will become fully mature and productive citizens. We Americans are far more generous and capable of more love and compassion than this legislation suggests. People of good will should fight against its passage.

With these extreme consequences at hand, the pro-life movement must be energized and mobilized as never before. If passed, this legislation crosses the line of no return from the culture of death. 

Karen M. Berkon writes from Arlington, Virginia.

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