What Is the Freedom of Choice Act?

As many know, Senator Obama told Planned Parenthood in 2007 that “the first thing I’d do as President is sign the Freedom of Choice Act.”



But how many of us know what the "Freedom of Choice Act" (hereafter FOCA) entails?

Here's an attempt to explain what this would mean.

It's important to note at the outset that this congressional statute is often presented as codifying Roe v. Wade. Hence, if Roe was ever overturned, FOCA would prevent things from changing. While this is true, FOCA goes far beyond this.

The 2007 version of FOCA (for the House bill, see H.R. 1964; for the Senate bill, see S. 1173) includes the following provision:

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.

Section 6 adds:

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.

The section highlighted above in bold italics means that FOCA, if passed, will accomplish two things:

1. it would invalidate all current and future statutes, ordinances, regulations, administrative orders, decisions, policies, or practices--at any level of government--that regulate or restrict abortion in any way;
2. it would mandate taxpayer funds to be used at the state and federal level for abortion services (not to do so would discriminate against the "rights" of abortion set forth in the bill).

The National Organization of Women says that FOCA "would sweep away hundreds of anti-abortion laws, policies." Planned Parenthood says FOCA "would invalidate existing and future laws that interfere with or discriminate against the exercise of the rights protected."

What are some of these state laws? The Family Research Council has complied the following list:

• All 50 states have abortion reporting requirements
• 46 states have conscience-protection laws for individual health-care providers
• 44 states have laws about parental notification
• 40 states have laws restricting late-term abortions
• 38 states have bans on partial-birth abortions
• 33 states have laws requiring counseling before an abortion
• 16 states have laws about having ultrasounds before an abortion

One of the states that has had FOCA-type acts on the books since 1991 is Maryland. The result of eliminating all restrictions and regulations, unsurprisingly, is that the Maryland rate of abortion has risen while the national rate of abortion has fallen.


Some people reading the Freedom of Choice Act notice that is says a woman has a "right to choose" "to terminate a pregnancy after viability where termination is necessary to protect the life or health of the woman" (my emphasis).

A surface-reading of FOCA (which is seeking to codify Roe v. Wade) might suggest that there is a meaningful, legitimate restriction on late-term, post-viable abortions, namely that abortions are allowed only in cases where a woman would die or be physically harmed. But this simply isn't true.

Roe v. Wade was handed down on the same day as Doe v. Bolton, and Justice Blackmun said they were to be read together. Doe defines maternal health to include virtually any factor: "emotional, psychological, familial, and the woman's age." The effect is abortion on demand--abortion for any reason.

So to summarize this act--which again, Barack Obama has promised to sign as his first order of business in the White House--abortion on demand will become codified, all regulations and restrictions will be stripped away, Christian hospitals and physicians will not have a choice regarding the performance of abortion (since their accrediting agencies are approved by the federal government), teenagers will not have to tell their parents about an abortion, and prolife taxpayers will be forced to pay for abortions at any stage of the pregnancy for any reason.