Posted by
Robin Phillips on Thursday, January 01, 2009 11:35:59 PM
President-elect, Barack Obama, has many things he is planning to do after he is sworn in as President on 20th January. But there is one thing which he has promised to do first. On July 17, 2007, Senator Obama spoke to the Planned Parenthood Action Fund, saying: “The first thing I’d do as President is sign the Freedom of Choice Act. That’s the first thing I’d do.”
What is the Freedom of Choice Act (FOCA) and why is it so important to Obama?
The FOCA is a ground breaking measure that would eliminate every restriction on abortion throughout America, including the right of states to prohibit partial birth abortions. The FOCA will also do away with state laws on parental involvement, compel taxpayer funding of abortions, force faith-based hospitals and healthcare facilities to perform abortions and prevent states from enacting protections against further measures in the future.
HISTORY OF FOCA
Denise M. Burke, AUL Vice President of Legal Affairs, explains the history of the present version of FOCA:
In late April 2007, Obama along with Senator Hillary Clinton and others, immediately re-introduced the federal Freedom of Choice Act (FOCA), a radical attempt to enshrine abortion-on-demand into American law, to sweep aside existing laws that the majority of Americans support-- such as requirements that licensed physicians perform abortions, fully-informed consent, and parental involvement-- and to prevent states from enacting similar protective measures in the future.
More importantly, FOCA is a cynical attempt to prematurely end the debate over abortion and declare “victory” in the face of mounting evidence that (a) the American public does not support the vast majority of abortions being performed in the U.S. each year and (b) abortion has a substantial negative impact on women....
FOCA would also subject laws regulating or even touching on abortion to judicial review using a “strict scrutiny” framework of analysis. This is the highest standard American courts can apply and is typically reserved for laws impacting such fundamental rights as the right to free speech and the right to vote. Prior to the Supreme Court’s 1992 decision in Planned Parenthood v. Casey (which substituted the “undue burden” standard for the more stringent “strict scrutiny” analysis), abortion-related laws (such parental involvement for minors and minimum health and safety standards for abortion clinics) were almost uniformly struck down under “strict scrutiny” analysis. If enacted, FOCA would retroactively be applied to all federal and state abortion-related laws and would result in their invalidation.
OVERTURNING PREVIOUS LAWS
The FOCA will reverse the landmark Gonzales v. Carhart ruling of 2007, in which the U.S. Supreme Court upheld the federal ban on partial-birth abortion. Ever since the ruling, Obama has not been happy. As he has said in 2007:
“I am extremely concerned that this ruling will embolden state legislatures to enact further measures to restrict a woman’s right to choose, and that the conservative Supreme Court justices will look for other opportunities to erode Roe v. Wade, which is established federal law and a matter of equal rights for women.”
How does a ban on partial birth abortion threaten the equal rights of women? Because, according to the FOCA, a prohibition on this barbaric and extremely painful procedure creates a “legal and practical” barrier that hindered “the ability of women to participate in the economic and social life of the Nation.”
That is just the tip of the iceberg. Denise M. Burke points out that among the more than 550 federal and state laws that FOCA would nullify are:
• Partial Birth Abortion Ban Act of 2003
• Hyde Amendment (restricting taxpayer funding of abortions)
• Restrictions on abortions performed at military hospitals
• Restrictions on insurance coverage for abortion for federal employees
• Informed consent laws
• Waiting periods
• Parental consent and notification laws
• Health and safety regulations for abortion clinics
• Requirements that licensed physicians perform abortions
• “Delayed enforcement” laws (banning abortion when Roe v. Wade is overturned and/or the authority to restrict abortion is returned to the states)
• Bans on partial-birth abortion
• Bans on abortion after viability. FOCA’s apparent attempt to limit post-viability abortions is illusory. Under FOCA, post-viability abortions are expressly permitted to protect the woman’s “health.” Within the context of abortion, “health” has been interpreted so broadly that FOCA would not actually proscribe any abortion before or after viability.
• Limits on public funding for elective abortions (thus, making American taxpayers fund a procedure that many find morally objectionable)
• Limits on the use of public facilities (such has public hospitals and medical schools at state universities) for abortions
• State and federal legal protections for individual healthcare providers who decline to participate in abortions
• Legal protections for Catholic and other religiously-affiliated hospitals who, while providing care to millions of poor and uninsured Americans, refuse to allow abortions within their facilities
CREATING A NEW ‘RIGHT’
The FOCA elevates abortion to a ‘right’ of the same status as those rights which are enshrined in the Constitution, such as the right to vote and the right to free speech.
The FOCA provides that “[i]t 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.” Further, FOCA would specifically invalidate any "statute, ordinance, regulation, administrative order, decision, policy, practice, or other action" of any federal, state, or local government or governmental official (or any person acting under government authority) that would "deny or interfere with a woman's right to choose" abortion, or that would "discriminate against the exercise of the right . . . in the regulation or provision of benefits, facilities, services, or information."
FOCA AND THE CONSTITUTION
Article I, Section 8 of the United States’ Constitution sets forth the powers of congress. It was the intent of those who framed and ratified the constitution that this list be exhaustive. If congress wanted to exercise a power not explicitly mentioned in this list, there was a mechanism for changing the constitution through the amendment process. But as the Constitution stands, the federal government is prohibited from legislating outside its delegated powers.
Just to make sure that this point was understood, the founding fathers added the 10th amendment to the Bill of Rights, specifying that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” What this means is that although the federal Congress is prevented from acting outside the powers delegated to it in Article I, Section 8 of the Constitution, the individual states are free to do so. Thus, while the constitution lists the powers of the federal Congress with the understanding that they were prohibited from legislating in all other areas, Article I also includes a section listing the powers prohibited to the states, with the understanding that they were free to legislate in all other areas.
The Freedom of Choice Act would violate the constitution on both these fronts. First, it would give Congress broad powers over areas not delegated to it in Article I of the Constitution. For example, it would force states to recognize a “fundamental right to abortion” and prohibit those states from enacting any legislation that would limit or “impede” access to abortion. Second, it would add additional prohibitions to states not specified in Article I of the Constitution.
A ‘LIVING AND BREATHING DOCUMENT’
How can Obama justify such a piece of legislation that is so overtly unconstitutional? For Obama it is quite simple since he views the Constitution as a “living and breathing document” which changes its meaning over the years. As Obama writes on pages 92-93 of his book The Audacity of Hope:
"What the framework of our Constitution can do is organize the way by which we argue about our future. All of its elaborate machinery – its separation of powers and checks and balances and federalist principles and Bill of Rights – are designed to force us into a conversation, a 'deliberative democracy' in which all citizens are required to engage in a process of testing their ideas against an external reality, persuading others of their point of view, and building shifting alliances of consent. Because power in our government is so diffuse, the process of making law in America compels us to entertain the possibility that we are not always right and to sometimes change our minds; it challenges us to examine our motives and our interests constantly, and suggests that both our individual and collective judgments are at once legitimate and highly fallible."
In plain English what this amounts to is that the meaning of the Constitution is not fixed but fluid. Melody Barnes, senior domestic policy adviser for the Obama campaign, expressed it more succinctly when she said: “His [Obama’s] view is that our society isn't static and the law isn't static as well. That the Constitution is a living and breathing document and that the law and the justices who interpret it have to understand that...”
Once Obama packs the courts with judges who adopt a similar view of the Constitution, American jurisprudence could become a legal free for all.
In that case, the FOCA may be just the beginning.