The Facts About the Freedom of Choice Act (FOCA)

The Orwellian-named Freedom of Choice Act (FOCA) was first introduced in the House of Representatives in 1989. The current far-left leadership in Congress backed by strong support from the White House for the first time makes passage of FOCA a real threat. FOCA would go well beyond any Supreme Court decision and legitimize abortion on demand at any time, for any reason. FOCA seeks to establish abortion permanently as a “fundamental right,” elevating it to the same status as the right to free speech or the right to keep and bear arms.

FOCA represents an attempt by pro-abortion groups to codify into law the abominably reasoned and only tenuously constitutional Roe v. Wade decision that was handed down on Jan. 22, 1973, by a Supreme Court steeped in judicial activism. To reach it, the court had to invent a “right to privacy” found in a “penumbra” emanating from other rights specifically preserved by the Constitution and Bill of Rights.

The right to terminate a baby’s life in utero does not exist in the Constitution, but that did not stop Chief Justice Warren Berger’s activist court from trying to create one in Roe. As the Associate Justice William Rehnquist wrote in his scathing dissent to the majority opinion in Roe v. Wade, “To reach its result, the court necessarily has had to find within the scope of the 14th Amendment a right that was apparently completely unknown to the drafters of the amendment.”

The 14th Amendment to the Constitution states, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The 9th Amendment states, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

The Berger Court found in its majority opinion written by Justice Harry Blackmun that a combination of these two amendments somehow guaranteed a right to privacy that constitutes a right to abortion. The Founders did not include a “right to privacy” in the Bill of Rights for the obvious reason that all sorts of heinous crimes could be and usually are committed in private.

“Our nationwide policy of abortion-on-demand through all nine months of pregnancy was neither voted for by our people nor enacted by our legislators. Not a single state had such unrestricted abortion before the Supreme Court decreed it to be national policy in 1973”, said President Ronald Reagan in 1983.

Real challenges to Roe v. Wade are working their way through the court system and could eventually overturn the decision. Even liberal left Justice Ruth Bader Ginsburg has voiced doubt as to the constitutionality of Roe. In a 2008 public dialogue with Princeton University Provost Christopher Eisgruber, Ginsburg said that the decision to strike down pro-life laws in states across the nation “wasn’t a big surprise.” But she admitted she was surprised by “how far the court had gone.”

“I think the court bit off more than it could chew,” Ginsburg said. “There would have been an opportunity for dialogue with state legislatures” to “reduce restrictions on access to abortion.… Of course it has to be the woman’s choice, but the court should not have done it all. It is dangerous to go to the end of the road when all you see in front of you are a few yards.”

Although Ginsburg notes the vulnerability of the decision to the test of law by a non-activist court, she remains a judicial activist who only prefers incrementalism over the sweeping changes that Roe implemented. Her lament was that the pro-life movement was spawned by the far-reaching diktat. Ginsburg would have preferred instead turning up the heat gradually, which could have resulted in a complacency over the abortion issue.

Ginsburg’s statements should not give hope to anyone that she would rule in favor of overturning Roe. During the same Princeton dialogue, she also said that she does not agree with her pro-life colleagues who strongly believe that the Constitution should not be stretched beyond the meaning and understanding of its drafters. On the contrary, Ginsburg said that she believes that to justify decisions that produce desired outcomes, you can most assuredly take the Constitution out of context. This is the purest form of legislating from the bench by a Supreme Court justice. In the liberal world, the end justifies the means, no matter what the Constitution says.

Ironically, if Roe were overturned it would not outlaw abortion in the United States. It would simply remand to the individual states the power to decide the legality of abortion within that state’s jurisdiction. It would again leave it to state governments to impose restrictions on abortion, if they — as an exercise of the elected representatives — chose to make any. It would be, as the Founders intended, a question reserved to the forces of democracy not to an imperial judiciary.

In an effort to circumvent legal challenges to the constitutionality of Roe before a Supreme Court that now borders on a majority of justices who respect the Constitution, President Barack Obama has made it clear to his pro-abortion activist base that he supports FOCA and would sign the bill into law if given the chance.

“The first thing I’d do as president is sign the Freedom of Choice Act. That’s the first thing that I’d do,” he said in remarks to the Planned Parenthood Action Fund on July 17, 2007

State Laws Nullified

If FOCA became law, it would eliminate every restriction on abortion nationwide, including 44 states’ laws concerning parental involvement, 40 states’ laws on restricting late-term abortions, 46 states’ conscience protection laws for individual health care providers, 27 states’ conscience protection laws for institutions, 38 states’ bans on partial-birth abortions, 33 states’ laws on requiring counseling before an abortion, and 16 states’ laws that would show the results of ultrasound test images to the mother before an abortion.

Passage of FOCA would also compel taxpayer funding of abortions through state and federal welfare programs, federal employee insurance plans, and in military hospitals. It would apparently force faith-based hospitals and healthcare facilities to perform abortions and force doctors and nurses to provide counseling and referral for abortions even if that violates their religious conscience.

FOCA would take any and all limits off the use of taxpayer dollars to fund these procedures.

FOCA would nullify state waiting periods put into place to give women considering an abortion a “cooling off” period of anywhere between 24 and 48 hours. These waiting periods lessen the likelihood that a woman will get caught up any uncomfortable or coercive atmosphere at an abortion clinic. With information in hand, it gives her the time to make the decision that will affect her for a lifetime free from these outside influences.

FOCA will also nullify parental consent and notification laws that are in place in some states. The result would be any child anywhere could be taken to have an abortion by anyone, including a coercive boyfriend, without parental consent and without parental notification.

Planned Parenthood’s History of Eugenics

“The most merciful thing that a large family does to one of its infant members is to kill it.” — Margaret Sanger, founder of Planned Parenthood, Women and the New Race (Eugenics Publishing Co., 1920, 1923)

Planned Parenthood is the largest abortion provider in the world. Founder Margaret Sanger was an avowed supporter of eugenics, the pseudo-science of breeding superior humans. Her extensive writings reveal startling plans to rid the world of “undesirables” through abortion, sterilization and birth control.

In April 1932, Sanger wrote A Plan for Peace, The Birth Control Review. She urged Congress to study what she considered population problems by appointing a “Parliament of Population.” This special congressional group would be tasked “to raise the level and increase the general intelligence of population.” To reach these goals, Sanger suggested a “stern and rigid policy of sterilization and segregation to that grade of population whose progeny is already tainted, or whose inheritance is such that objectionable traits may be transmitted to offspring.”

Along with her colleague Dr. Clarence J. Gamble, Sanger developed what Gamble first dubbed “The Negro Project” in a 1939 memorandum to Sanger. Their plan was to target poor minority areas in the South with Birth Control Federation of America clinics, the forerunner to Planned Parenthood’s abortion mills. In his memorandum, Gamble suggested they hire “a Negro physician” and a “charismatic Negro minister” to put in charge of the project to make it appear to have the support of black leaders.

Sanger reportedly responded to Gamble on December 10, 1939, approving the project concept. She wrote, “We do not want the word to go out that we want to exterminate the Negro population, and the minister is the man who can straighten that idea out if it ever occurs to any of their more rebellious members.”

Sanger lured the black community into support for her plans through deception, much the same way Planned Parenthood continues to deceive today. Touting health concerns, community well-being and economic advancement, Sanger targeted poor minorities and lured many into her grasp.

The targeting of poor, minority communities continued as Sanger’s ideas brought together several birth-control organizations heavily populated by the eugenics movement to form Planned Parenthood. For instance, when Planned Parenthood opened over 100 school-based clinics in the 1980s, not one is reported to have been opened in a substantially all-white school or in a suburban middle-class school. All available data show the clinics were opened only in black, minority or other ethnic schools.

Because of the controversies surrounding the disproportionately high number of minority abortions, the pro-abortion movement makes every effort to suppress their actual numbers. In 1992, back when Planned Parenthood actually released their numbers, over 43% of abortions they performed were on minority women.

Eugenics Still Rules

The Guttmacher Institute is an organization which compiles reproductive health statistics. According to their studies, black women abort their children five times more often than white women and at twice the Hispanic rate.

In a July 12, 2009, interview with the New York Times, Supreme Court Justice Ginsburg in a candid moment confirmed that eugenics is the driving force behind the pro-abortion movement.

“Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion. Which some people felt would risk coercing women into having abortions when they didn’t really want them. But when the court decided McRae, the case came out the other way. And then I realized that my perception of it had been altogether wrong.”

Former Ohio Secretary of State Ken Blackwell, senior fellow and national spokesman for the American Civil Rights Union (ACRU), says the passage of FOCA would represent the completion of Margaret Sanger’s work in eugenics.

“If you begin to look at the connection between slavery, Darwin, eugenics and abortion you begin to appreciate the fact that this is the logical step in the final chapter of this march toward genocide,” Blackwell said. “All of this has started to stem around the fundamental thought that African-Americans were less than human, objects to be manipulated, subjects to be used. This is, in my view, most noted in the works of Margaret Sanger. She introduced to youths the notion of abortion as a way of purifying what she considered to be the human race and to rid it of inferiors. In this case she regarded African-Americans as being inferior. And if you don’t study the history of slavery and Darwinian theory, eugenics and abortion, then you’re doing a disservice to the stain that all of these developments had on American culture.”

Blackwell also sees the current push for a European-style Socialist state as part of this deliberate erosion of our culture that takes us back to the ancient notion of might makes right. Whoever has the power makes the rules, the very doctrine this nation was founded to dispel.

“If you look at the second paragraph of the Declaration of Independence, it says that all men are created equal, that we’re endowed by our Creator with certain unalienable rights,” Blackwell said. “Which means that our human rights are not grants from government, they’re gifts from God.”

“If you begin to think that your human rights are grants from government it softens you up to embrace this march toward an ever-empowered state,” Blackwell continued. “In this march toward European Socialist-type government… what gets diminished is individual liberty and human dignity. This move is the latest chapter in basically saying that innocent human life is something that can be taken away by an empowered and ever-expansive state or government. The Freedom of Choice Act is the ultimate final chapter in the evolution of social policy and cultural debasement that is on the same track as slavery, Darwinism, eugenics and now the ultimate: abortion on demand.”

Man’s Inhumanity to Man

As science advances and we are treated to the startling and sometimes breathtaking beauty of the development of a tiny human being in the womb, this advanced knowledge of the way we develop informs us of the excruciating pain inflicted on pre-born babies by abortion as early as eight weeks into gestation. Most reports show that the majority of abortions occur in the 12th week of pregnancy. An abortion in America is considered a “late term” abortion at or after the 20th week. The Freedom of Choice Act would bar any limits on abortion, no matter what the stage of development.

Rep. Trent Franks (R.-Ariz.) has been a champion of protecting the unborn child. His work has included sponsorship and relentless support of The Unborn Child Pain Awareness Act. According to Franks, the legislation would require abortion providers to notify women who want to have an abortion 20 weeks after fertilization that the evidence suggests their unborn child feels pain and they may request anesthesia for their unborn child in order to reduce or eliminate the pain. The legislation would not require the anesthesia, and it specifically protects the doctor’s right to inform the woman of any risks from the anesthesia, according to his or her own best medical judgment.

Attempts to ban partial-birth abortion have drawn new attention to the pain that unborn children feel during an abortion. Unborn children are not given any medication to reduce the pain from the mortal trauma they suffer during an abortion. In the late-term dilation and evacuation abortion procedure, limbs are grasped in the womb with a long-toothed clamp, and pulled out of the woman’s body piece by piece. The baby is literally torn apart limb by limb. The baby’s head is then crushed and removed.

Congress requires pain to be minimized when livestock are slaughtered but not for the babies subjected to this gruesome late-term abortion procedure. Section 2 of the Humane Slaughter Act (7 U.S.C. 1902) states: “No method of slaughter or handling in connection with slaughtering shall be deemed to comply with the public policy of the United States unless it is humane. Either of the following two methods of slaughtering and handling are hereby found to be humane: (i) in the case of cattle, calves, horses, mules, sheep, swine, and other livestock, all animals are rendered insensible to pain by a single blow or gunshot or an electrical, chemical or other means that is rapid and effective, before being shackled, hoisted, thrown, cast, or cut.”

According to information from doctors compiled by the American Life League, even first trimester babies possess the capacity to feel pain:

“Dr. Thomas Sullivan, a pediatric neurologist, says that there are two criteria. First, the subject must have the proper equipment to sense noxious stimuli. For example, a chicken with its head cut off may run around for awhile, but it’s missing some of the necessary structures to feel pain.

“Dr. Sullivan says that the equipment that humans use to sense pain includes special pain receptors in nerve endings that connect nerve fibers to transmit signals from the receptor to the spinal cord; neurons within the spinal cord that carry the signal to the brain; the thalamus, which senses the pain; and the cortex, which supplies psychological responses to the pain and also directs a response. All of this complex equipment is in place, states Dr. Sullivan, ‘perhaps as early as eight weeks, but certainly by 13 and a half weeks.’”

Another doctor points out strong reactions to stimuli from these tiny babies in utero:

“Dr. William Matviuw, an obstetrician/gynecologist, says that the nerves that sense pain reach the skin of the fetus by the ninth week of gestation. Electrical impulses pass through the neural fibers and through the spinal column between the eighth and ninth week of gestation. Detectable brain activity in response to noxious stimuli occurs between the eighth and tenth week.

“‘Using all this equipment and then responding may take a little longer,’ says Dr. Matviuw. ‘At seven weeks, a child will pull his lips back if you tap on his mouth. By 10 weeks, the palms of the hands are sensitive to touch. By 11 weeks, the face will respond to touch. By 13 and a half weeks, organic response to noxious stimuli occurs at all levels of the nervous system, from the pain receptors to the thalamus.’”

Rep. Franks believes women have the right to know the facts about the medical development of their unborn children and that they should be informed of an option to minimize or eliminate the pain an unborn child feels during an abortion. And he’s not alone.

“A 2004 Zogby Poll found that 77% of the public favor laws requiring that women who are 20 weeks or more along in their pregnancy be given information about fetal pain before having an abortion,” Franks said.

It is the dehumanization of these unborn children that has contributed greatly to the debasement of the cultural norm in America.

“A great man once said that a society is measured by how it treats those in the dawn of life, those in the shadows of life, and those in the twilight of life,” Franks said. “Because they are hidden, both in the dawn and in the shadows of life, we kill 400 late-term unborn children every day in America using methods that cause such agonizing pain to the child that it would be illegal under federal law if it was done to an animal.”

The passage of FOCA would remove all legal protections and leave those most vulnerable among us — babes in the womb who lack even the voice to cry out, at the mercy of the basest whims of American culture.

Coercion of the Faith Community

The passage of the Freedom of Choice Act would not only place those in the womb at risk, but also greatly affect people of faith in America. Freedom of religious conscience will be stripped of any real meaning, subject to the command and power of the federal government.

Conscience protections for hospitals, doctors, nurses and pharmacists are already under assault by the Obama Administration. Obama has already watered some of the conscience protections put into place by the prior administration. Yet the passage of FOCA would codify into law what in the past have been administrative decisions by the executive.

FOCA would gut a doctor’s Hippocratic Oath Pledge “to prescribe regimens for the good of … patients … and never do harm to anyone, to please no one [by prescribing] a deadly drug nor [by giving] advice which may cause his death.”

FOCA is slickly packaged as a bill that offers freedom of choice, but it is clear by any objective analysis that the bill is intended to turn back the broadening support for protecting innocent life. The latest Guttmacher Institute census of abortion providers indicates abortion is on the decline in America. A more aggressive pro-life message coming out of the White House and the pulpits during the Bush Administration along with advances in science that have opened up to the world the mysteries of life in the womb have had an impact.

The intent of the Obama Administration is to undo the last eight years and mortally wound America’s sensitivity to protecting innocent human life by forcing on everyone a “right” to abortion that simply does not exist in our Constitution.

Unfortunately, the majority of voters elected the most pro-abortion President in American history in 2008. Deception was a major factor. The media failed to accurately report a great deal about candidate Obama, including the extent to which Obama supports all forms of abortion. His voting history as an Illinois legislator and in the U.S. Senate shows strong support for not only abortion on demand but for any reason at any point in any pregnancy. Obama even once voted against and twice voted “present” on legislation that would ban live-birth abortion in Illinois. Live-birth abortion occurs when a baby is born alive after a botched late-term abortion. In Illinois, these babies are set aside to die on their own with no food, water, medical care or even comfort.

By any definition these actions constitute infanticide. Once a baby is born and separate from the mother’s womb, there is no possibly valid claim that leaving the child without any aid and comfort somehow threatens the life of the mother.

As an Illinois legislator, Obama voted “present” in 2001 on SB 1093, the Born Alive Protection Act. This bill provided that no abortion procedure that could result in an infant’s live birth could take place without a second physician being present to provide for medical care in that instance.

Obama also voted “present” in 2001 on SB 1095, the Born Alive Protection Package. This bill created a cause of action if a doctor failed to provide medical care after birth to any baby surviving an abortion or induced labor abortion.

In 2002, Obama voted “no” on SB 1661, creating the Induced Birth Infant Liability Act. It provided that, if a child is born alive after an induced labor or other abortion, a parent of the child or the public guardian may maintain an action on the child’s behalf for damages, including costs of care to preserve and protect the life, health, and safety of the child, punitive damages, and costs and attorney’s fees, against a hospital, health care facility, or health care provider who harms or neglects the child or fails to provide medical care to the child after the child’s birth.

Obama’s votes to protect live-birth abortion put him in the camp of the most extreme of the extremist supporters of abortion on demand. It should come as no surprise to anyone that he would support the so-called Freedom of Choice Act that would shatter any restrictions on abortion at any time and for any reason.