Bad Law

In the prolife community, worries about the Freedom of Choice Act reached a fever pitch during the 2008 presidential election. These worries crystallized initially around a remark made by Barack Obama at a Planned Parenthood event in July 2007, when the candidate promised that signing the act would be the “first thing I’d do as president.”

Taking that statement as their rallying point, prolife activists, including the Catholic bishops, mobilized to fight FOCA. At their annual conference, held just days after Obama’s election, the bishops expressed resolute opposition to the bill, with Cardinal Francis George, president of the United States Conference of Catholic Bishops, warning that “FOCA would have lethal consequences for prenatal human life.”

Just how sweeping the effects of FOCA would really be is a matter of some dispute. While NARAL Pro-choice America claims that FOCA will merely “codify Roe v. Wade’s protections,” it’s clear that other prochoice activists expect far more from the bill. In April 2007, the National Organization of Women issued a press release forecasting that FOCA “would sweep away hundreds of antiabortion laws [and] policies.” In 2004, Planned Parenthood predicted the demise of “laws that prohibit the public funding of abortions for poor women or counseling and referrals for abortions.” Additionally, the group said, FOCA would eliminate “onerous restrictions on a woman’s right to choose, such as mandated delays and targeted and medically unnecessary regulations.”

Many prolifers agree about FOCA’s far-reaching effects. In a September 2008 letter to Congress, Cardinal Justin Rigali warned that under the act “abortion on demand would be a national entitlement that government must condone and promote in all public programs affecting pregnant women.” One month later, in an essay titled “Obama’s Abortion Extremism,” Princeton’s Robert P. George, an eminent prolife legal scholar, predicted that “FOCA would abolish virtually every existing state and federal limitation on abortion,” from parental consent and notification laws to conscience protections for prolife workers in the health-care industry. Such workers, he predicted, could be “forced to participate in the practice of abortion or else lose their jobs.”

Is FOCA truly such a powerfully transformative piece of legislation? I am not convinced. When I sat down to study the latest version of the bill in the Senate, I expected a fully worked-out description of a legal regime that aggressively protects abortion rights. Yet despite its bold rhetoric in favor of a “fundamental right” to choose abortion, FOCA includes no clear, detailed, and effective legal schema to protect that right. In fact, the act’s operational details appear to be little more than an afterthought. To more clearly assess what the application of FOCA would actually entail, let’s set aside the political battles for a moment and grapple with the text of the bill itself.

FOCA describes itself as a bill “to protect, consistent with Roe v. Wade, a woman’s freedom to choose to bear a child or terminate a pregnancy.” It is a short bill, comprising six sections printable in three pages. Section 2, “Findings,” offers a passionate defense of a woman’s right to choose abortion, grounding it in the recognition that “individuals are free to make the most intimate decisions without governmental interference and discrimination.” But the meat of FOCA from a legal point of view is Section 4, “Interference with Reproductive Health Prohibited.” Here it is in its entirety:

(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; or
    (2) discriminate against the exercise of the rights set forth in paragraph (1) in the regulation or provision of benefits, facilities, services, or information.
(c) Civil Action—An individual aggrieved by a violation of this section may obtain appropriate relief (including relief against a government) in a civil action.

The key, obviously, is section (b), which forbids a government to “deny or interfere with” a woman’s right to choose, and, second, prevents “discrimination” against the exercise of this right. But what, concretely, does this mean? In order to understand the prohibition, we need to assess the scope of the protected right, as defined by Roe v. Wade and interpreted in subsequent cases. And when we do, we find ourselves quickly fogged in by ambiguity. Some commentators have suggested that the “noninterference” provision in section 4(b)(1) will invalidate all restrictions on previability abortion, including those necessary to protect the health of the mother. Yet section (4)(b)(1) closely tracks Roe itself, which, while it prohibited restrictions on abortion in the first trimester, allowed restrictions that were “reasonably related to maternal health” from that point until viability, and allowed states to proscribe abortion entirely after viability unless the abortion was necessary to preserve maternal life or health. True, in several subsequent cases, a number of state attempts to regulate around the edges of the abortion right (for example, spousal notification and informed-consent provisions) were declared unconstitutional. Later cases, however, upheld some restrictions on abortion. In Webster v. Reproductive Health Services (1989), the Court reaffirmed that the right to abortion created by Roe did not establish an affirmative right to governmental aid, and it supported reasonable requirements for abortionists to determine whether a fetus is viable before going ahead with abortion. In Planned Parenthood v. Casey (1992), the Court upheld both “the essential holding of Roe” and several restrictions, including requirements for a twenty-four-hour waiting period, informed consent, and parental notification (with judicial bypass).

The effect that this line of cases interpreting Roe would have on FOCA is unclear. Both prolife and prochoice activists have contended that FOCA would sweep away the regulations allowed by Casey. Yet the language of the bill makes not a single disparaging remark about Casey; in fact, FOCA’s sole mention of the case is positive. Moreover, the most significant change brought about by Casey had to do not with the substance of the constitutional right affirmed in Roe, but with the standard used to review laws that might conflict with that right. Roe demanded that any legal restriction touching upon a woman’s right to choose be reviewed under the “strict scrutiny” standard, which requires that the regulation protect a compelling state interest and be narrowly tailored to interfere as little as possible with the right in question. The controlling plurality opinion in Casey substituted a more lenient test, which prohibited legislation from imposing an “undue burden” upon a woman’s choice. FOCA nowhere addresses Casey’s shift in standard of review; and if FOCA were to be passed, the courts might well be occupied with the tedious task of deciding whether laws which passed muster under Casey’s “undue burden” test also pass muster under FOCA’s “no interference” test. What is the difference between a law which “interferes” with a right to choose, and a law which “places a substantial burden” in the path of a woman seeking an abortion?

Another combustible topic in the abortion wars is partial-birth abortion; but here again, the import of FOCA remains unclear. The bill does make critical remarks about Gonzales v. Carhart (2007), the Supreme Court case that upheld the federal law banning partial-birth abortion. But the operative language of FOCA may not be enough to undo the ban. FOCA explicitly allows the prohibition of postviability abortions if they are not necessary to preserve the life or health of the mother. In Carhart, the Court emphasized that Congress had found that the partial-birth abortion procedure is never necessary to preserve a woman’s health. In addition, the majority opinion explicitly made room for an “as applied” challenge to the ban in the unlikely event that a physician believed that such a procedure was in fact necessary. So FOCA in its current form and Carhart do not inevitably clash. In the absence of clear congressional intent to repeal the Partial Birth Abortion Act, a court could reasonably decide to read FOCA in a way that preserves it.

On the vexing issue of abortion funding, one can read the nondiscrimination provision (4)(b)(2) as mandating abortion funding. But does this reading make the most sense of the text as a whole? The language prohibits discrimination against the exercise of the right to choose. Yet the abortion right as protected by Roe has repeatedly been held by the Supreme Court to be a negative right, not a positive right: no one has a constitutional right to have the government pay for an abortion, at least not an elective one. Second, the operative language of FOCA nowhere clearly demands funding. Furthermore, a court interpreting FOCA could observe that if Congress wants to fund abortion, it has a very easy way to do so, with a provision in the annual catchall legislation, the Omnibus Budget Reconciliation Act. At the very least, Congress could easily repeal the Hyde Amendment, which has prohibited federal funds from being used for most types of abortions since 1976. Despite its portentous rhetoric, FOCA cannot simply “trump” the Hyde Amendment, which is also federal law—especially if the Hyde Amendment is passed again after FOCA. The courts would have to reconcile the two pieces of legislation, and would most likely do so by reading FOCA in a less expansive manner. And what about requiring the states to fund abortion? Such unfunded mandates are politically controversial; and again, if Congress does want the states to pay for abortions, it has a clear, practical, and legally less controversial way to achieve that end. Using a carrot rather than a stick, Congress can easily make a state’s participation in the Medicaid program contingent upon covering elective abortions.

All in all, then, the text of the bill would seem to yield effects less far-reaching than its more alarmist interpreters might think. For instance, in 4(b)(2), FOCA forbids the government to “discriminate against the exercise of the rights” it sets forth “in the regulation or provision of benefits, facilities, services, or information”—and some commentators have read this provision broadly, as requiring the law to ensure that abortion and childbirth receive equal support. But such a broad reading is closer to an “affirmative action” requirement than a nondiscrimination requirement. In civil-rights law, the prohibition against discrimination generally means that one cannot purposefully disfavor an individual on the basis of the protected category, but it does not mean that one has to ensure equal outcomes in every case. So, for example, a state would need to license both private abortion clinics and prolife crisis-pregnancy centers, but it would not have to require either that the prolife center perform abortions or, for that matter, that the abortion clinic provide prenatal care. Furthermore, choices made on grounds other than disfavoring either abortion or childbirth would be acceptable. For example, a state hospital or program that offers medically necessary services but not elective procedures would have to offer medically necessary abortions, but would not need to offer elective ones.

Finally, some prolifers have claimed that the “nondiscrimination” provision of FOCA will invalidate any state “conscience clause” provisions, which protect hospitals and health-care providers from retaliation if they refuse to perform abortions. This strikes me as unlikely. FOCA says that the state may not “discriminate against” the exercise of the right to choose in the “regulation or provision of benefits, facilities, services, or information.” But it says nothing about the regulation of individual providers. Moreover, religious citizens, and religious institutions, have a First Amendment interest in acting in accordance with their beliefs; if Congress is going to demand that the states override that interest, far more explicit language should be necessary to do so.

Even if FOCA is passed by Congress and signed by the president, it faces another big hurdle. In my view, the sweeping boldness of the bill’s language generates significant questions about whether it is constitutional, and that could tie it up in litigation for years. First of all, while FOCA denies that it is creating new constitutional rights, its proclamation that a woman has a “fundamental right” to choose whether to seek an abortion sounds like exactly that, a constitutional right. Moreover, some of the language suggests that this fundamental right is meant to function like a constitutional right, potentially altering every other federal, state, and local statute within its ambit. For example, FOCA purports to invalidate not only inconsistent federal laws enacted prior to its passage, but also those subsequently enacted. In doing so, it functions more like a constitutional provision than a federal law.

Is it within the power of Congress to override the Supreme Court’s interpretation of the rights protected by the Constitution, or to add constitutional rights to the Constitution in a manner that circumvents the amendment process? These are essential questions. Not surprisingly, the Supreme Court does not take kindly to Congressional attempts to undercut its interpretation of the Constitution. After the Court substantially restricted the right to religious freedom in Employment Division v. Smith (1990), Congress passed the Religious Freedom Restoration Act (RFRA). In essence, that act attempted to overrule the Court by requiring states to adhere to the more expansive understanding of religious freedom in place before Smith. In Boerne v. Flores (1997), the Supreme Court rejected this attempt, emphatically reaffirming its own power to interpret the rights guaranteed by the Constitution. Congress is permitted under Section 5 of the Fourteenth Amendment to enact measures that “remedy or prevent” unconstitutional actions on the part of states, but not to “make a substantive change” in the constitutional rights recognized by the Court. Moreover, these measures must exhibit “congruence and proportionality” between their remedial or preventative purpose and the means they deploy to achieve this purpose.

How would FOCA fare under the Boerne standard? To the extent that it is interpreted as creating a de facto constitutional right, not very well. If Roe were to be overruled, FOCA would then arguably represent an attempt by Congress to trump the Supreme Court’s interpretation of the Constitution, as with RFRA. Even if Roe is not overruled, FOCA might still be unconstitutional, to the extent that it attempts to circumvent later cases interpreting the right to abortion, such as Casey or Carhart. Moreover, even if its purpose is deemed to be a legitimate attempt to “remedy or prevent” unconstitutional violations of a woman’s right to choose as currently understood by the Supreme Court, there remains a serious question: Whether FOCA’s broad-gauged approach exhibits sufficient “congruence and proportionality” between means and ends.

There is also a second reason why FOCA might be unconstitutional. The bill grounds its exercise of power over the states in the commerce clause of Article 1, Section 8, asserting that the abortion business is a matter of interstate commerce. That claim, however, might not survive judicial scrutiny. After years of great deference to Congressional claims of lawmaking authority under the commerce clause, the Supreme Court began to set limits to that authority in United States v. Lopez (1995). FOCA may exceed these limits, which would require a showing that abortion “substantially affects interstate commerce.” And while FOCA asserts a connection between abortion and interstate commerce, that connection has not been supported by extensive congressional fact-finding. Moreover, FOCA arguably encroaches on “traditional state regulation” in the area of family law that the Court expressed a concern to protect in United States v. Morrison (2000). While the Court veered back toward deference in Gonzales v. Raich (2005), that may not help FOCA, which is not part of a “comprehensive regulatory scheme” like the vast web of federal antidrug law and regulation at issue in that case.

Sound law requires clarity, so that those bound by it know what is required of them. If enacted, a statute as hopelessly vague as FOCA would tie up governmental resources at both the federal and state levels for years to come, as lawyers battled over its interpretation and constitutionality. It would inflame the social divisions in this country rather than quell them. In short, one need not be prolife to see that enacting FOCA is a bad idea. Its combination of rhetorical boldness and operational vagueness makes it a very bad law.

The same combination, however, makes it a very good weapon in the abortion wars that have divided this country for over thirty years now. In my view, that is the true purpose of FOCA, which has been lurking around Congress in various versions for nearly two decades. Ultimately, the bill should be seen less as a serious attempt at lawmaking than as abortion-war propaganda dressed up as legislation. It’s noteworthy that from a purely political perspective, FOCA is useful to both prolife and prochoice activists. The bill helps prochoicers ward off any perceived threat to the right to abortion—even as, in its ominous shadows, prolifers see new threats to unborn life, and mobilize accordingly. And a new battle begins. FOCA has inflamed the culture wars for too long, feeding fear on both sides and squeezing the hope of finding common ground. Let’s hope its specter now fades away. With one of their own in the White House, prochoice activists should have no need to raise it. Prolife activists, meanwhile, will be able to help women facing problem pregnancies more effectively if their energy is not sapped by battling the bill’s nightmarish worst-case scenarios. And the rest of America—the majority that occupies a middle ground, favoring maintaining a basic abortion right while supporting some restrictions on it—will breathe a sigh of relief at the truce.

Read more: Letters, March 13, 2009