FOCA

My sister-in-law suggested that her generally apolitical blog was not the place to engage in a  debate on abortion. She’s probably right, but such a debate fits just fine here. In many ways the debate on abortion is settled. An absolute ban on abortion is not likely to ever be a reality in this nation and truly unrestricted access to abortion is also a very low probability. Despite heated rhetoric, the fact is that both sides are entrenched and committed to making incremental gains related tot his ever simmering topic. Camille’s post was specifically about fighting the Freedom of Choice Act (FOCA) which Obama told Planned Parenthood he would sign as his first act as President. I think we can be very confident that it will not be his first act (because the economy is his first priority now) but that is no consolation to those who oppose this bill.

As always, I like to start with the actual legislation in question whenever possible. The claim by opponents is that this would eliminate all state and local statutes against any abortion. The text of the bill states:

Congress finds the following:

. . .

(4) The Roe v. Wade decision carefully balanced the rights of women to make important reproductive decisions with the state’s interest in potential life. Under Roe v. Wade and Doe v. Bolton, a woman’s right to choose to terminate her pregnancy is absolute only prior to fetal viability, with the state permitted to ban abortion after fetal viability except when necessary to protect the life or health of a woman.

. . .

SEC. 4. INTERFERENCE WITH REPRODUCTIVE HEALTH PROHIBITED.

(a) STATEMENT OF POLICY- 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.

(b) PROHIBITION OF INTERFERENCE- 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;

(emphasis added)

Sounds like the claim by the bills opponents is a bit overstated.

Those who support the bill obviously believe that this would remove some state and local restrictions on abortion that are unconstitutional. The problem here is that the Constitution has no position on the issue of abortion. The only restrictions on abortion related legislation are rooted in supreme court opinions. All those state and local regulations that push the boundaries are challenged in court. The language of this bill is so vague that it only reinforces the message that is supposedly set by existing rulings. In other words, all the laws that they expect to remove can already be challenged, and any that would be upheld still could be upheld when challenged.

What this bill really accomplishes is to place in a statute what has already been placed in precedent. Perhaps this is an admission by abortion proponents that the ruling in Roe v Wade is a  lousy ruling that amounts to an opinion not grounded in law. Anyone who has actually read Roe can see that it’s a huge logical leap from any law then existing.

My position is that FOCA is meaningless at best and reinforces the most illegal Supreme Court ruling I have ever read at worst. After having actually read the text of FOCA (it’s not very long) if you still want to sign the petition that Camille linked to, please do. I did.