FOCA by Increments

Speaking to Planned Parenthood on July 17, 2007, then-presidential candidate Barack Obama said, “The first thing I’d do as president is sign the Freedom of Choice Act” (FOCA). Will he get that chance? It is not clear, but what is certain is that he will have many opportunities to institute FOCA in a piecemeal fashion.

In 2007, Barbara Boxer of California and Jerrold Nadler of New York introduced the newest version of FOCA in the Senate and the House of Representatives, respectively. Democrats had tried and failed to reach a vote on FOCA several times in the past (in 1989, 1993, and 2004), but Boxer and Nadler intended their bill as a response to the Supreme Court decisions in Gonzales v. Carhart and Gonzales v. Planned Parenthood earlier in 2007, which had upheld the Partial- Birth Abortion Ban Act of 2003.

The key text of Boxer’s bill read, “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.” The act also provided that this sweeping rule be applied retroactively: “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.”

FOCA’s broad language would not only protect Roe v. Wade, but would also undo virtually all of the pro-life movement’s incremental gains since 1973.

On March 6, a spokesman for Nadler told the St. Louis Post-Dispatch that Nadler and Boxer intend to introduce the bill again this congress, mentioning that FOCA “is among the congressman’s priorities. We expect to reintroduce it sooner rather than later.”

The last defense against FOCA will likely reside in the Senate. The 2008 elections favored the Democrats and consequently pro-abortion politicians now enjoy a clear majority in both houses of Congress. The Senate Republicans, however, consider FOCA one of the few items they could filibuster.

The Democrats would need 60 votes to override a filibuster, which they might not attain. Currently there are 41 Republican senators. While Republicans Olympia Snowe and Susan Collins of Maine are both staunchly pro-abortion, the other Republicans are likely to hold firm in opposition to FOCA. There are at least three Democratic senators pro-life enough to vote with the Republicans: Bob Casey of Pennsylvania, Ben Nelson of Nebraska, and Mark Pryor of Arkansas. Democrats who are marginally pro-life or even nominally pro-abortion would likely vote against FOCA, since the majority of voters across all states disapprove of the extreme pro-abortion measures it contains.

One such Democrat is Harry Reid of Nevada, who as Senate Majority Leader would play a significant role in the battle over FOCA. Reid has a mixed record on abortion, and is facing what looks to be a tough reelection campaign in 2010. He would feel pressure not only to vote against FOCA but also to prevent it from reaching the Senate floor for a vote.

The Democratic leadership has an incentive to prevent FOCA from reaching a vote unless it is assured to pass. But Douglas Johnson, the legislative director for the National Right to Life Committee, speaking to the Catholic News Service, thinks that “Reid would be no impediment at all,” and that “his history has been that he may vote against something in the end after doing everything he can to have the pro-abortion side win.”

FOCA’s supporters understand the Democrats’ predicament. Nancy Keenan, the president of NARAL Pro-Choice America, confessed to NPR in December that “you’ve got to be practical, you’ve got to be realistic here…. You have to look at the votes. And I just don’t believe the votes are there….” Keenan also told the Associated Press that NARAL’s decision to lobby hard for FOCA would depend on the success of other pro-abortion measures in Congress. The likeliest barometer would be a vote on budgetary restrictions on abortion funding. If changes to the current restrictions are specifically rejected or voted down as separate amendments on the House floor, then presumably NARAL and others would back off on FOCA.

NARAL and Planned Parenthood are the most active abortion lobbyists, pressing both for FOCA on the national level and for overturning state regulations. In 2008, NARAL spent $240,000 lobbying. Planned Parenthood spent nearly $1 million, in addition to $120,000 in lobbying by the Alan Guttmacher Institute, a Planned Parenthood spinoff organization.

EMILY’s List, a group that raises funds for pro-abortion candidates, is another key player in the abortion lobby. It is impossible to quantify EMILY’s List’s contributions to candidates, because the organization’s technique involves bundling small individual contributions that are not subject to disclosure requirements. Their influence, though, is considerable. Ellen Malcolm, the president of EMILY’s List, has campaigned for pro-FOCA candidates for years. She had high hopes for Bill Clinton in 1993, claiming at the time, “I would certainly hope that he would tackle the gag rule immediately and, in the long term, support the Freedom of Choice Act.” Clinton failed on the second count, but so far Obama is right on track.

The “gag rule,” or Mexico City Policy, was instituted by Ronald Reagan in 1984, and prevented any taxpayer money from funding international clinics or groups that perform abortions abroad. According to Denise Burke of Americans United for Life, ending the Mexico City Policy and other action items like it represent an attempt to “enact FOCA by stealth.”

Indeed, only a few months into his presidency, Obama has already checked off a number of these items. A few days after ending the Mexico City Policy, Obama rescinded George W. Bush’s executive order that protected conscience rights at hospitals.

He has also used his presidential nominations to advance elements of FOCA. He appointed Kathleen Sebelius, the governor of Kansas, to direct the Department of Health and Human Services, and selected Nancy-Ann Min DeParle, another loud advocate for abortion, to run the newly created White House Office of Health Care Reform. Together, Sebelius and DeParle will have the task of implementing Obama’s overhaul of the health care system. They will have the opportunity at least to increase Medicaid coverage for abortion—mandating abortion services at hospitals—and to engineer changes to current abortion regulations.

Sebelius and DeParle are thus positioned to accomplish the next item on the FOCA agenda: federal funding for abortions. Currently there are a number of budget restrictions, or riders, that prevent any taxpayer dollars from funding abortions. The most important one is the Hyde Amendment. Written by Congressman Henry Hyde, first passed in 1976, and renewed every congress since, the Hyde Amendment prohibits Medicaid funding of abortions. Like all riders, the Hyde Amendment must be reapplied to every budget. The danger is that Democratic congressmen could excise the riders from enormous appropriations bills in committee, without attracting much notice.

Congressman Jim Jordan of Ohio told The American Spectator, “In the past, we might have lost a vote on stem cells…. Now even votes on taxpayer funding and partial-birth are up in the air.” A bipartisan group of 180 congressmen have signed a letter authored by Jordan and Heath Shuler, a Democrat from North Carolina, that asks the House leadership either to protect the riders or else to introduce them as separate amendments on the House floor for consideration.

FOCA’s backers are also pursuing their goals at the state level. Planned Parenthood and NARAL are ramping up efforts to undo some of the state laws and regulations that are most effective in protecting unborn babies. Regulations regarding parental notification, informed consent, waiting periods, and ultrasound requirements are at risk throughout the country.

And abortion advocates are not stopping with regulations. They are attempting to enact FOCA-style laws in many states. Seven states already have such laws on the books, according to NARAL: California, Connecticut, Hawaii, Maine, Maryland, Nevada, and Washington. In Maryland, the abortion rate has increased since it implemented its version of FOCA in 1991, even though the abortion rate has decreased nationally. Most of the states with FOCA- style laws have significantly elevated abortion rates.

In Illinois, a bill very similar to the federal FOCA passed committee on March 12, and will be voted on in the legislature. Americans United for Life attorney Clarke Forsythe told LifeSite- News.com that the bill would “eliminate all existing regulations on abortion in Illinois—including the physician-only law, the law that limits abortion practice to physicians…. If it’s enacted, it would authorize any school nurse in any public school to do an abortion without parental knowledge.” Pro-abortion groups are pushing a similar law in New Mexico. Minnesota legislators have introduced a FOCA-type bill. New York, in all likelihood, will reintroduce a FOCA bill originally supported by the disgraced Governor Eliot Spitzer.

FOCA itself is unlikely to squeeze through Congress. It is an extreme measure, far more extreme than the majority of Americans are willing to tolerate. Politicians know their electorates, and will not risk their careers to vote for FOCA unless it is guaranteed to pass.

Still, Planned Parenthood, NARAL, and the rest of the abortion lobby know well the rules of the game, and have already begun the process of passing FOCA in small pieces, using both their access to the executive office and their influence throughout many states to accomplish their goal of fully funded and readily available abortion-on-demand. For pro-life groups, victory lies in illuminating the threat of an encompassing FOCA bill while fighting a pitched battle against each incremental proabortion change.