Please explain to me the Freedom of Choice Act

Great Debates
1

This is not really a debate, just a general question, but since it’s about abortion and politics (and even religion) it would probably end up here.

On a church-related blog I frequent, there is quite a bit of discussion about abortion and an attitude ranging from skepicism to hostility toward anyone who claims to be anti-abortion yet would consider voting for Obama anyway (as I have done).

(My reasoning is that: McCain, even with a couple of SCOTUS appointments, would be unlikely to be able or willing to effect an overturn of Roe v Wade; and that Obama’s social policies as a whole are actually more likely to reduce the number of abortions in this country than McCain’s are. And aside from the abortion issue, I find find Obama more often matches my personal convictions on other issues as a person of faith. So while I regret his pro-choice stance, I voted for him despite of it).

One poster made the following comment: "Just be aware that if Obama is elected he will sign the Freedom of Choice Act which guarantees the right for a woman to have an abortion for any reason whatsoever and that the Federal Government will pay for it. This will happen without the input of either the Legislature OR the Court. All he has to do is sign the resolution. "

Now, if I remember my Schoolhouse Rock correctly, the President cannot sign a law until it has been passed by both the Senate and the House. And even then it is subject to review by the courts if challenged. And, although a majority of the US electorate wants abortion legal, I find it hard to believe there would be widespread support for federal guaranteed totally unrestricted on-demand abortion at the government’s expense.

I’ve looked up FOCA and found the text of the bill and a list of sponsors (including Obama) but I want is someone to explain to me

  1. What the proposed Act says
  2. What it’s status is in Congress
    and, if you’re feeling brave,
  3. What the heck the commentor quoted above is talking about when she implies that Obama can effect this law by Presidential fiat.
2

I don’t know anything about the FOCA, but for (3) above, my guess is that the commentor was exaggerating for effect, or, more precisely, lying (or confused, I guess). Laws just don’t get signed that way.

Maybe Obama could sign an executive order that would accomplish much of what the FOCA sets out to do, but he couldn’t sign the FOCA itself into law. In any case, the executive order could be overridden by the legislature anyway.

3

OK, further research:

According to Wikipedia, the FOCA has been referred to the judiciary committees in both houses of congress and there it stays. It was introduced way back in 2004. Obama became a co-sponsor of the Senate version in 2007. He also said:

“The first thing I’d do, as president, is sign the Freedom of Choice Act. That’s the first thing that I’d do.”

Of course, he couldn’t do that unless it was sent to him by both houses of congress. The FOCA seems to be meant to codify Roe v. Wade, removing all restrictions on abortion before viability. Some opponents of the bill say that it would override the Hyde amendment that bans federal funding for abortions. Others say that it would override religious hospitals’ choice whether to perform abortions. I have no idea if either of those is true.

So, to answer (2), you’re stuck in committee, Bill, and you may die there. Even if you get out of committee, you may get voted down, and then it will be a long time before you come up again. If it does make it out and through the senate and house, and the president signs it, we’ll say, Congratulations, Bill. Now you’re a law.

I haven’t read the proposed act. The Wikipedia article is pretty short.

4

After Roe v Wade, there were two big abortion cases which changed states’ power to make other rules around getting an abortion, although, in accordance with Roe v Wade, they can’t ban abortion completely.
In Planned Parenthood v Casey the Supreme Court found that, “Requirements for parental consent, informed consent, and 24-hour waiting period were constitutionally valid regulations.”

And in Webster v Reproductive Health Services, “The Court approved a Missouri law that imposed restrictions on the use of state funds, facilities and employees in performing, assisting with, or counseling on abortions. The Supreme Court thus allowed for states to legislate in an area that had been previously been thought to be forbidden under Roe, reversing the Eighth Circuit.”

So we’ve got Roe v Wade doing some rather tortuous legal gymnastics to invent a new right, and these two undercutting what was once thought a pretty blanket ban on states interfering with abortion. That leaves abortion rights in a pretty tenuous position: with anything made legal or illegal by the rule of a court, a new court could change the rules. If the Supreme Court gets one more anti-choice Justice, they could, theoretically, overturn RvW. (Whether or not they would is another question; most people think it’s such a political landmine that they’d decline to address it, but others aren’t so sure.) If we really want to protect abortion rights, we need to make an actual *law *about it, a law that courts can’t change.

So the Freedom of Choice Act puts the rules of RvW as amended with Casey re: viability (government cannot interfere with a woman’s right to carry a pregnancy to term or to have an abortion until viability, and after viability, abortion remains legal in the case of danger to the life or health of the mother) into Law (or it would, if it could get passed). Nothing in it is new, but it comes in a form that couldn’t be changed if there were new Supreme Court Justices. It’s a theoretically stronger protection, since you’d need a new vote of Congress to overturn it, and getting 100+ people to vote your way is a lot harder than appointing one Supreme Court Justice to change the balance.

What some people think it would also do is force states to remove those laws enacted after Casey and Webster, requiring things like parental notification, spousal consent or waiting periods. That’s what opponents point to when they say that the Freedom of Choice Act would increase abortion rates or “remove all limitations on abortions” or “mean 125K more abortions”.

For comparison’s sake, here’s the relevant portion (I think) of Roe v Wade:

And from the Freedom of Choice Act:

5

Thanks Ritter. It sounds like the passage of FOCA is a longshot - which is why Obama probably felt safe endorsing it; it shores up pro-choice support but he’ll probably never have to follow through.

6

Missed the edit window, but thank you, too, WhyNot for the cites and the overview of the law. It sounds like the question would become, do parental notification laws, waiting periods etc. constitute government interference in the right to an abortion. And that’s if the law managed to get as far as the president’s desk.

7

Well, here is the text of the bill in question. As of last April, it was read and referred to the Judiciary Committee.

The purpose of the FOCA seems to be to prohibit any state from outlawing abortion even if Roe v. Wade is struck down. The bill claims the authority to do this based on the interstate commerce clause of the Constitution. :rolleyes:

Either the person you quote is mistaken, or s/he meant the state legislature would not be able to pass laws restricting or outlawing abortion. It is an act, not a resolution, so that part is mistaken.

I don’t see any text about the federal government paying for abortions in the FOCA.

8

That would be in Sec. 4 (b) paragraph 2 - that explicitly overturns the Hyde Amendment. Basically it says if the government is otherwise paying for your health care, it must provide abortion coverage - which is assuredly not current policy.

9

Exactly. And not being a lawyer, I have no good answer for that question. I’m not even sure, at this point, if the lawyers and judges have a good answer for that question. These are the sorts of things that don’t really get settled until the law is passed and someone takes their state to court and the courts decide it then. Say what you want about “judicial activism” - sometimes it’s the only way to get definitive answers.

But, again, this thing is a long way from being law, and my guess is that most politicians would rather it stay in committee, where they can rail against it or argue for it until they retire and it’s someone else’s problem, rather than actually risk alienating their voters by voting for or against it.m Having things look precarious, as they do now, really is in most politician’s best interest. This way, both sides can promise their constituents that change is just around the corner - good change if they get elected and bad change if the other guy does.

10

Is that what that meant? I missed it - thanks.

Does (c) mean that a woman denied an abortion can sue the government and make the taxpayer pay for it?

11

IANAL but it looks that way to me. Which makes sense I think regardless of whether you think the law is good or not. What is the point of having a law if someone can violate it and the aggrieved party has no recourse to rectify the situation?

12

Allowing post-viability abortions for “the health of the woman” is pretty vague language. Are we just talking about the physical health or are we talking about the more malleable definitions of mental and emotional health, or even social and economic well-being? Heck, it could open the way to what a few Dopers fantasize about- tax-funded abortions until the baby can escape the birth canal & take his/her first breath.

Even then, I’m not sure President Obama would see it as home safe.

I’ve defended him against charges he’s a covert Muslim, a non-Christian, the Anti-Christ, a non-native-born citizen, a racist and a whole number of things. But I see no evidence not to believe he’s the Abortionists’ Dream President.

Whether or not it ever makes it out of committee, Obama’s endorsed it. To this Pro-Lifer, that’s a major (tho not the sole reason) I am hoping he loses Tuesday.

13

Cite? I have not seen any pro-choice person (particularly here) suggest elective abortion should be allowable right up to the moment before a woman goes into labor.

If there really are any, here or elsewhere, I’d lump them in the wingnut category along with those who think doctors performing any abortion should be shot or that a 12 year old raped by her father should be forced to carry the pregnancy to term.

As to elective late term abortions being for essentially any “health” reason I seriously doubt doctors would be found to perform them because a woman two days before labor decides she just cannot afford the child. Doctors take an oath to “do no harm” and I think performing such a procedure for anything less than dramatic circumstances (the mother will die if they don’t) falls squarely under that ethical umbrella.

Further, it is disingenuous to suggest women would be lining up for elective late term abortions. Doubtless someone, somewhere, would probably try but I would think it would be a bare handful who would try. Most women are clear about carrying to term or not early in their pregnancy and do not wait 8.5 months before choosing not to have the child.

14

Oh, I have. And I say that as a pro-choice person. There’s always a few you wish weren’t on “your side”, y’know? :rolleyes:

ETA: But I don’t see any realistic legal or logical way in which this Act would open up that slippery slope. But what do I know? It took me a few months to grok how legalizing gay sex could lead to people pushing for polygamy.

15

Sorry to push but cite please? As mentioned I would guess there are some few nutters as there are on any side of debates such as this. I seriously doubt they are many or taken seriously by anyone though and remain the lunatic fringe.

16

I am, I know you’ll be shocked to learn, having trouble with Search at the moment, although I’ll look again in 284 seconds. :wink: Hopefully FriarTed will be looking as well, since I’ve been in a metric assload of abortion threads in my years here, and have no clear memory of which ones the most extreme statements were made in or a good way to sift them out, as it were. Any suggestions for keywords? unrestricted abortion got me zero results - not even *this *thread, so it’s clear it’s a search problem.

And no, they are not many, nor taken seriously by other pro-choice Dopers. The two I’m thinking of who I’m pretty sure but not certain (and so I won’t name names yet) are rather, uh, extreme in their views on many topics, and elicit mostly roll eyes at this point.

17

I’ve seen enough Dopers who said it should be legal to the ninth month for any reason. I think they were just wanting to sound all bad-ass “Pro-Choicer-Than-Thou”. So I was exaggerating slightly… slightly.:smiley:

My point is that such vague wording does lead to slippery slopes, and I stand by my basic conviction that President Obama is the Abortionists Best Hope.

18

http://boards.straightdope.com/sdmb/showthread.php?t=483352&highlight=abortion

IIRC there were a few here. I am already late getting to sleep & don’t have time to find the exact posts of number of Dopers.

19

I succumbed to temptation & found two Dopers tentatively favoring 3rd-trimester elective abortions on the first page of that thread.

NOW I’M GOING TO SLEEP! :smiley:

20

Okay, I found a few.

AHunter3

Anaamika(agreeing with AHunter3’s post above)

Der Trihs

Diogones the Cynic, and Diogones providing a similar but more elaborate answer in a different thread (including a very astute point which I happen to agree with - that ending of pregnancy is the right, not necessarily death of the fetus)

Der Trihs and **Diogenes **being the two extremists-on-many-issues that I thought I remembered saying something along these lines, of course.