The election of a Democratic President backed by commanding Democratic majorities in both houses of Congress has refocused attention on the Freedom of Choice Act, which, as its name implies, would eliminate or curtail most current restrictions on abortion. Yet these rules exist because Americans have voiced concerns about unrestricted abortion and its consequences. Before this bill or a similar one is passed into law, we should consider some of its practical and constitutional ramifications.

Perhaps most alarmingly, the Freedom of Choice Act threatens to re-legalize partial-birth abortion, a procedure that involves terminating a fetus that has partially emerged from the womb and is literally seconds away from legal status as a human child. In passing the partial-birth-abortion ban, which the Supreme Court upheld, Congress noted that partial birth abortion has a ‘disturbing similarity to the killing of a newborn infant.”

Opposition to partial-birth abortion is not limited to abortion foes. Even many people who support abortion in general oppose this particular abortion procedure. In recent years, major polling services like Gallup, ABC News and Pew Research have shown that two-thirds of Americans consistently oppose partial birth abortion. Despite public opinion on this issue, FOCA would likely reinstate the procedure through its sweeping prohibition of government interference with abortion.

Under the current rubric established by Roe vs. Wade, 25 states (according to Planned Parenthood’s count) allow the parents of minors to have a say in their children’s decisions through parental consent laws. Although these laws vary among states, in most cases, minors must receive the consent of one or both parents in order to obtain an abortion. That parents should want to be involved in the process is not surprising, as most parents are deeply concerned about the welfare of their children. From choosing a doctor to allowing their kids to stay out late, parents have the final say on nearly all decisions in their children’s lives. In many public schools, children cannot even obtain pain killers like Aspirin or Motrin without parental permission. Excluding parents from a difficult and possibly life-changing decision like abortion does not make sense, yet FOCA threatens to do just this.

The bill goes beyond prohibiting parents interference with abortion. For a bill that seeks to promote freedom of choice, FOCA takes a surprising swipe at those who are disinclined to perform or participate in an abortion for moral or religious reasons. By mandating that the government not ‘discriminate” in the ‘regulation or provision of benefits, facilities, services or information,” FOCA would likely force public funding of abortion and compel religiously affiliated health care providers (there are 624 Catholic hospitals alone in the United States) to either provide abortions or close.

A recent campaign on our campus targeted the federal funding of crisis pregnancy care centers on the grounds that the government has no business promoting a pro-life agenda. By the same token, should the government force people who oppose abortion to fund a pro-choice agenda? Americans on both sides of the abortion issue have strongly-held beliefs. The first step to resolving these differences lies not in coercion, but in each side respecting and acknowledging the other’s perspective.

Both sides should recognize that the legal reasoning behind FOCA is flawed. The constitutional justification for FOCA rests partly on the Commerce Clause of the Constitution, which gives the federal government sole power to regulate commerce that flows across state borders. The bill’s sponsors claim that abortion falls within interstate commerce, because reproductive health clinics purchase supplies and equipment from out of state. However, in an integrated economy like that of the United States, millions of businesses, large and small, purchase goods from out of state. If the federal government can regulate these businesses under the Commerce Clause, there is little business activity within the United States that does not fall under its purview.

This power claimed by the bill’s sponsors is a double-edged sword. If Congress can override hundreds of state and local laws that regulate abortion with one bill, a pro-life majority using the same constitutional rationale, could prohibit reproductive health clinics in all 50 states from offering abortions. In its current form, FOCA would concentrate even more power in Washington, D.C. at the expense of ordinary citizens who have a much greater say in the day-to-day workings of local and state governments.

If passed, the Freedom of Choice Act will sweep away decades of carefully crafted state level compromises that followed the Roe vs. Wade decision. More than a simple reaffirmation of Roe vs. Wade, FOCA tramples on the rights of parents, states, ordinary citizens and health care providers on the myopic assumption that unrestricted access to abortion is the only way to assist women dealing with unwanted pregnancies.

Zaengle is a member of
the class of 2010.

Jaramillo is a member of
the class of 2011.



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