ELECTION 08: Bill would keep abortion legal even if Roe v. Wade someday overturned

EDITOR'S NOTE: This is part of a special series of stories focusing on the election that Baptist Press will run between now and Nov. 4. Stories will run on Wednesdays and Fridays.

WASHINGTON (BP)--For years, pro-lifers have set their sights on changing the U.S. Supreme Court, hoping that a conservative judicial lineup would overturn Roe v. Wade, the 1973 ruling that legalized abortion nationwide.

But what if the Supreme Court someday overturns Roe, and abortion nevertheless remains legal?

That's the goal behind the Freedom of Choice Act, a bill in the House and Senate that would ensure abortion remains legal even if Roe someday is struck down by the nation's highest court. Just as problematic for the pro-life cause, the bill would lead to the overturning of nearly every abortion restriction on the books, including the federal ban on partial-birth abortion as well as state parental notification laws and waiting periods. Additionally, it almost certainly would force the public to fund abortion on demand.

The bill may sound far-reaching and even far-fetched to social conservatives, but it nevertheless has a legitimate chance of passing -- if not in this session of Congress, then in the next one.

It first was introduced in Congress in 1989 and seemed on the verge of passing four years later when President Clinton -- who had backed it during the campaign -- took office. But it never made it out of Congress and for the past 15 years hasn't had a real chance of success until now.

The Senate bill (S. 1173) has 19 co-sponsors, while the House bill (H.R. 1964) has 109 co-sponsors. Both bills were re-introduced April 19, 2007 -- the day after the Supreme Court upheld the federal ban on partial-birth abortion.

"Attention always is focused on Supreme Court appointments and the likelihood of Roe being overturned," Douglas Johnson, legislative director for National Right to Life, told Baptist Press. "But Congress, by adopting something like this, would short-circuit that whole process. Roe would become almost irrelevant."

Johnson calls it the most radical piece of pro-choice legislation he's seen.

The bill states that "every woman has the fundamental right to choose to bear a child" and "to terminate a pregnancy" and that "a government" -- meaning the federal government or any state or local government -- may not "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."

Language in the bill that apparently would force taxpayers to pay for abortion on demand states that a government may not discriminate against women "in the regulation or provision of benefits, facilities, services, or information" regarding abortion. The language presumably would apply to Medicaid and military hospitals.

"It's a very extreme measure," Johnson said. "It's a bill that would make partial-birth abortion legal again, force taxpayers to pay for abortion on demand and invalidate virtually all state and federal limitations on abortion. These radical pro-abortion effects would continue even if Roe vs. Wade was overturned, because the bill really is entirely unconnected to Roe vs. Wade.

"'Interfere with' is about as broad of language as you could come up with. It doesn't just cover the prohibition of abortion -- it covers any kind of a barrier, any kind of impediment, any kind of delay. So, clearly, 'interfere' would be things that the court has upheld under Roe, such as brief waiting periods. There's no distinction between minors and adults, and clearly all of the procedural requirements for notifying parents with or without judicial bypass would be invalid under this."

Johnson's words may simply sound like the dire predictions of a pro-life advocate, but pro-choicers who support the bill acknowledge that it not only would "codify" Roe but also would lead to the striking down of state and federal abortion restrictions. Planned Parenthood, the nation's largest abortion provider, states on its website that the Freedom of Choice Act "would invalidate existing and future laws that interfere with or discriminate against" legalized abortion. The National Organization for Women -- which also supports the bill -- says on its website the bill "would override the Court's decision" in the partial-birth abortion ruling and would "supersede laws that restrict the right to abortion, including laws that prohibit the public funding of abortion" and laws that require a waiting period before obtaining an abortion.

Pro-lifers also say the abortion rate almost certainly will go up if the bill is adopted. That's happened in Maryland, which passed a state-level Freedom of Choice Act in the early 1990s and has seen a steady increase in the abortion rate. The abortion rate in Maryland in 1995 was 25.6 per 1,000 women of reproductive age, and in 2005 had risen to 31.5 per 1,000. During that same time period, the national abortion rate fell from 22.5 in 1995 to 19.4 in 2005.

"One explanation of the decline in the national rate for abortions is the increased number of incremental laws addressing the abortion issue in each state ... ," Tom McClusky of the Family Research Council wrote in an article examining the impact of the proposed bill. "The enactment of a federal Freedom of Choice Act would be a federalist's nightmare, overturning hundreds of state laws that have been enacted through legislation and statewide initiative and ballot referendums. ... Ironically, the Freedom of Choice Act would remove any concept of 'choice' from the equation, by eliminating the right of states and U.S. citizens to have a say in the debate."


Michael Foust is an assistant editor of Baptist Press.

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