Freedom of Choice Act

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The Freedom of Choice Act (H.R. 1964/S. 1173) was a bill in the 110th United States Congress which "declares that it is the policy of the United States that every woman has the fundamental right to choose to bear a child; terminate a pregnancy prior to fetal viability; or terminate a pregnancy after viability when necessary to protect her life or her health."

It prohibits a federal, state, or local governmental entity from denying or interfering with a woman's right to exercise such choices; or discriminating against the exercise of those rights in the regulation or provision of benefits, facilities, services, or information. Provides that such prohibition shall apply retroactively.

It also authorizes an individual aggrieved by a violation of this Act to obtain appropriate relief, including relief against a governmental entity, in a civil action."[1]

Earlier versions of the bill were introduced in 1989 and 1993.[2]


The bill states in its findings section that Congress has the affirmative power to legislate abortion based, in part, on the crossing of state lines by abortion providers, women seeking abortions, and medical supplies used in abortions.[3]


The Freedom of Choice Act was sponsored in the House of Representatives by Congressman Jerrold Nadler, and originally co-sponsored by Congressman James Greenwood, Congresswoman Louise Slaughter, and Congresswoman Diana Degette. In the Senate, it was sponsored by Senator Barbara Boxer, and originally co-sponsored by Senators Jon Corzine, Patty Murray, Frank Lautenberg, Hillary Clinton, Maria Cantwell, Jim Jeffords, Joseph Lieberman, Dianne Feinstein, Paul Sarbanes, and Barbara Mikulski. The bill was introduced in the United States House of Representatives on January 21, 2004, and in the United States Senate on January 22, 2004.


The bills were referred to the Judiciary Committees of the respective Houses. Neither bill received further action in the 108th Congress. The bills were reintroduced in the 110th Congress, but, like their predecessors, were referred to committee without further action. As of June 2009, the bills have not been introduced in the 111th Congress.

During his tenure in the United States Senate, Barack Obama co-sponsored the 2007 Senate version of the Freedom of Choice Act (S. 1173). Responding to a question regarding how he would preserve reproductive rights in a speech given to the Planned Parenthood Action Fund on July 17, 2007, Obama declared, "The first thing I'd do, as president, is sign the Freedom of Choice Act. That's the first thing that I'd do."[4]

In a press conference on April 29, 2009, President Obama said that although he supports a woman's right to choose, passage of the Freedom of Choice Act was "not highest legislative priority."[5]

Description and criticism[edit]

The bill is described by NARAL Pro-Choice America president Nancy Keenan as a bill to "codify Roe v. Wade" which would "repeal the Bush-backed Federal Abortion Ban," referring to the Partial-Birth Abortion Ban Act, "and other federal restrictions".[6] Opponents of FOCA assert that it would, if passed, invalidate every restriction on abortion nationwide, including parental notification laws, informed consent laws, and bans on partial birth abortion.[7] However, the bill would still prohibit partial birth abortions due to the wording of the bill and the stated definition of viability, the stage of pregnancy when there is a reasonable likelihood of the sustained survival of the fetus outside of the woman.[8]

Two days after Barack Obama's inauguration, a protester in the March for Life holds a "No FOCA" sign.

The U.S. Conference of Catholic Bishops (USCCB) has been strongly opposed to the Freedom of Choice Act. According to the USCCB's Secretariat for Pro-Life Activities, FOCA would not only "codify the Supreme Court's 1973 decision in Roe v. Wade" but "in allowing and promoting abortion, FOCA goes far beyond even Roe."[9]

Opponents of FOCA assert that the bill would force taxpayers to subsidize abortion and would jeopardize existing laws prohibiting abortions in public hospitals and barring non-physicians from performing abortions.[7] Others[who?] estimate that the passage of FOCA would result in approximately 125,000 more abortions being performed annually in the United States.[10][11][12] Some opponents argue that FOCA would effectively repeal the Hyde Amendment, a federal law which bars the use of federal funding for abortions in some cases.[citation needed] Legal scholar Douglas Kmiec, a pro-life Republican, disagrees with the latter assertion, noting that the Hyde Amendment is renewed annually by Congress; Kmiec argues that this legislation would not supersede it.[13]

Those who oppose the Act interpret it as an attempt to obligate religious hospitals to either "do abortions or close",[14] while FOCA supporters argue that existing conscience clause laws would protect religious hospitals.[15][16] In early 2009, Catholic News Service asserted that in its interpretation of the legislation, FOCA neither poses any such risk to Catholic hospitals, nor would require religious hospitals to participate in abortion.[17] Opponents, however, assert that conscience clauses are weak and easily reinterpreted, and do not explicitly allow religious hospitals to ban the abortion procedure within the hospital.[18]

The election of Barack Obama, an advocate of the Freedom of Choice Act, to the presidency caused pro-life organizations to organize against the bill in early 2009. Notable campaigns that were organized include Americans United for Life's petition to Congress called Fight FOCA[19] and the "What the FOCA?!" campaign created by Students for Life of Illinois.[20][21][22]


  1. ^ Congressional Research Services (CRS) Summary of H.R. 1964.
  2. ^ [1][permanent dead link]
  3. ^ American Center for Law and Justice. Executive Summary of the Freedom of Choice Act Archived 2008-11-28 at the Wayback Machine May 1, 2007
  4. ^ Barack Obama Promises to Sign FOCA, posted July 9, 2008.
  5. ^ Obama, Barack (April 29, 2009). "Part II of text of Obama's news conference". Associated Press. Retrieved April 30, 2009.
  6. ^ Choice Chat transcript Archived 2008-10-12 at the Wayback Machine NARAL Pro Choice America
  7. ^ a b "Pro-Life Activities".
  8. ^[permanent dead link]:
  9. ^ "The "Freedom of Choice Act:" Most Radical Abortion Legislation in U.S. History" (PDF). USCCB. 2008-09-30. Retrieved 2008-11-08.
  10. ^ Kumpel, Robert. "Why Pro-Lifers Fear FOCA" Archived 2009-02-17 at the Wayback Machine The National Catholic Register
  11. ^ Bowman, Matt. "Obama's Gift to America" Archived 2009-04-06 at the Wayback Machine The American Spectator. October 2, 2008.
  12. ^ "Archived copy". Archived from the original on 2008-12-28. Retrieved 2009-02-11.CS1 maint: archived copy as title (link)
  13. ^ Kmiec Responds to Criticism on Abortion Reduction "Scam" Beliefnet
  14. ^ "Obama's Threat to Catholic Hospitals" Melinda Henneberger writing in Slate
  15. ^ "Sterilization or Abortion" US Code § 300a–7.
  16. ^ "What Would FOCA Really Do?" Emily Douglas writing at RH Reality Check
  17. ^ "Rumors aside, FOCA legislation no threat to Catholic health care" Archived 2009-04-03 at the Wayback Machine Nancy Frazier O'Brien, Catholic News Service, January 27, 2009
  18. ^ "Obama's Threat to Catholic Hospitals" Page 2
  19. ^ Yoest, Charmaine, Ph.D. "An Open Letter to Senator Obama on Behalf of All Ohio Parents" (PDF). Retrieved 2008-11-08.CS1 maint: multiple names: authors list (link)
  20. ^ "Catholic Vote". Archived from the original on 2015-02-25. Retrieved 2014-06-22.
  21. ^ "Jill Stanek".
  22. ^ "Illinois Federation for Right to Life - Students: 'What the FOCA?!'".

External links[edit]