By Michael DePrimo, Attorney, AFA Center for Law and Policy
January 2009 – On a typical day in the mid-1990s, Dr. Leroy Carhart arrived at his office in Bellevue, Nebraska, to perform his medical specialty – partial-birth abortion. A few minutes later, he pushed forceps inside the womb of his patient to grab the legs of a tiny yet fully-formed baby girl at 20-24 weeks gestation. He then pulled the baby out of the supposedly safe haven of her mother’s womb until her head rested against her mother’s cervix. He then inserted a large vise-like instrument into the mother’s womb and crushed the baby’s skull. Once crushed, the now dead baby easily slid out of her mother’s womb and was tossed in the garbage as “medical waste.”
Carhart’s gruesome technique spurred pro-life advocates and Nebraska legislators to pass a state law banning partial-birth abortion. Years later, that law would be declared unconstitutional in a 5-4 decision by the U.S. Supreme Court. Congress then convened hearings and passed a federal law banning partial-birth abortion. Once again, the ban went before the U.S. Supreme Court. But in the intervening years the composition of the Court had changed. Samuel Alito had replaced Sandra Day O’Connor as a sitting justice. Justice Alito was the deciding vote that upheld the federal law banning partial-birth abortion. At present, partial-birth abortion is illegal in the United States.
On November 4, the American people elected Barack Obama as their president. As president, we should expect him to make good on his campaign promises. One promise he made was to the abortion industry, saying in a speech to Planned Parenthood, “The first thing I’d do as president is sign the Freedom of Choice Act.”
The Freedom of Choice Act (FOCA) is proposed federal legislation that will prohibit the government from denying or interfering with a woman’s right to abortion, or discriminating against abortion with respect to benefits, facilities, services or information.
What does that mean? If passed, FOCA will nullify all state and federal regulations of abortion. President Obama’s signature will negate 24-hour waiting periods, informed consent, and parental notification laws. By a single stroke of his pen, Obama will wipe out the federal ban against partial-birth abortion that the Supreme Court upheld. Dr. Leroy Carhart will be thrilled because he can then resume the gruesome procedure for which he is infamous.
But there’s more. FOCA will require taxpayer funding of abortions both domestically and abroad. It will force hospitals with religious affiliations to offer abortions despite deeply held beliefs that abortion is murder. Doctors and nurses, too, will be forced to perform abortions or face the loss of their medical licenses. In short, FOCA will radically overhaul the entire abortion landscape. From a legal perspective, FOCA will be America’s low point concerning respect for human life.
When abortion was wrong
From its earliest beginnings, the church has taught that procuring or performing abortions is intrinsically evil. In early America, abortion was permitted, but only prior to quickening, i.e., the time when the mother could feel movement inside her womb. Back then, doctors did not fully understand the gestational stages of pregnancy. But as medical knowledge increased and doctors began to better comprehend the miracle of human life, abortion became increasingly unacceptable. By the late 1800s, the American Medical Association characterized abortion as immoral and dangerous, and physicians began calling for laws outlawing it. By 1910, all states except Kentucky adopted laws making abortion illegal. By 1967, 49 states and the District of Columbia made abortion a felony except where the pregnancy endangered the mother’s life.
But on the heels of the 1960s sexual revolution, things began to change. In 1967 Colorado became the first state to allow abortion where the mother’s health was at stake or when the pregnancy was the result of rape or incest. Between 1967 and 1973, one-third of the states followed Colorado’s lead and substantially revised their criminal abortion statutes. Four states (Alaska, Hawaii, New York, and Washington) repealed them altogether.
Then came the U. S. Supreme Court’s abominable decision in Roe v. Wade. In Roe, the Court “discovered” a right to abortion, unconvincingly explaining that the “right” emanated from the penumbras (shadows) of other rights set forth in the Bill of Rights and Fourteenth Amendment. In other words, the Court found a “constitutional right” that could not be located in the text or history of the Constitution. Roe voided all state and federal laws inconsistent with its holding. Roe is a prime example of judicial activism.
Under Roe, a woman had an absolute right to abortion without any government interference during the first trimester (weeks 1-12) of pregnancy. During the second trimester (weeks 13-24), the government was allowed to enact laws that protected the life and health of the mother but not her unborn child. In the third trimester (weeks 25-36), government was allowed to protect the life of a viable unborn child, i.e., one that could live on its own outside the womb, but even then abortion must be permitted if the life or health of the mother was threatened.
At the time Roe was decided, fetal medical science was still somewhat crude. In 1973, the point of viability could not be determined with certainty and therefore could be ascertained only on an individual basis. Because a pregnancy was at full term at 36 weeks (9 months), fetal viability worked backwards from that point. Back then, the shortest age of gestation for fetal viability was usually no more than the 26th week of pregnancy.
As medical science increases the point of viability shortens. This irrefutable fact led then-Supreme Court Justice Sandra Day O’Connor to conclude in 1983 that Roe was on a collision course with itself because the period in which a woman could choose abortion would shrink proportionately as unborn children became viable at earlier points in the pregnancy. To illustrate, in 1973 an unborn baby might have been viable at 26 weeks. Today, an unborn child is viable at 22 weeks. Consequently, between 1973 and 2008, the time in which a woman could choose abortion under Roe shrunk by four weeks. Advances in medical technology thus made the trimester analysis legally untenable.
In the ensuing years, the battle over abortion was waged in both courts and legislatures. Many states passed laws that were challenged. Some laws were upheld and others struck down. In Planned Parenthood v. Casey, a major abortion case decided in 1992, the U.S. Supreme Court reaffirmed the constitutional right to abortion but rejected Roe’s trimester framework and substituted in its place the “undue burden” test. Simply put, an “undue burden” is a substantial obstacle in the path of a woman seeking an abortion of a nonviable unborn baby. The “undue burden” test continues to be the standard today as the abortion war rages with no sign of a truce.
What FOCA will do
Sadly, FOCA will not be the end but rather the beginning of new abortion-related legislation. Enactment of FOCA is likely to spur state and local governments to adopt new laws targeting peaceful expressive activity of pro-life advocates. For example, because informed consent laws and waiting periods will fall victim to FOCA, pro-life advocates soon will be the primary source of accurate gestational information for women seeking abortions. However, for years pro-abortion forces have complained that pro-life information and counseling activities intimidate women seeking abortion. Because FOCA prohibits government regulation that “interferes” with abortion, Planned Parenthood and its ilk will no doubt call for legislation banning pro-life literature and sidewalk counseling at abortion clinics on the ground that such conduct, albeit peaceful, interferes with a woman’s “right to choose.”
Indeed, cities and states have already begun banning peaceful pro-life activity in areas immediately outside abortion clinics. The Commonwealth of Massachusetts, for example, adopted a statute last year that prohibits anyone (except women seeking abortion and their companions) from coming within 35 feet of the entrances, exits, and driveways of abortion clinics. It is impossible, of course, to distribute literature to a person who is 35 feet away. It is also impossible to carry on a normal conversation with someone that far away. Despite what amounts to a total ban on peaceful First Amendment activity on public sidewalks, a federal court in Boston upheld the law against a constitutional challenge.
This is to our shame. Many pro-life sidewalk counselors are post-abortive women who 10, 20, and even 30 years later still feel remorse, sadness, and intense grief for the “choice” they made to violently end the life of their unborn child. They stand in rain, sleet, and snow on the sidewalk outside abortion clinics to urge young pregnant women not to make the same mistake. It is frequently at this last line of defense that final decisions concerning life and death are made. It is there that women hear, often for the first time, the truth about the gestational characteristics of the life they carry inside their wombs. It is there that they hear about alternatives to abortion, including adoption. It is there that vulnerable pregnant women receive kindness, empathy, counseling and practical help from women who actually know firsthand what it’s like to have an unwanted or unexpected pregnancy.
The next four years are likely to see the greatest increases in abortion in our nation’s history unless we stop it. Call or write your U.S. representatives and senators (Here.) and tell them to oppose FOCA when it comes up for vote in the coming months. Better yet, actively support a pro-life ministry in your community. 
