A Project of The Annenberg Public Policy Center

Freedom of Choice Act

Q:What are the facts on the Freedom of Choice Act?

A:Some claims about this proposal’s impact are unfounded; others contain some truth. But the bill’s vague wording makes it hard to pin down what it actually would or wouldn’t do.


I received the following "scare tactic" e-mail regarding the FOCA act. What is the truth about the statements that are made? Your response to this is appreciated.

The FOCA Act: The Freedom of Choice Act (FOCA) is set to be signed if congress passes it on January 21-22 of 2009. If made a law, then all limitations on abortion which have been painstakingly built up by state legislatures one after another will be abolished which will result in the following:

[EET ]

1) All hospitals, including Catholic hospitals will be required to perform abortions upon request. If this happens Bishops vow to close down all Catholic hospitals, more then 30% of all hospitals in the United States .

2) Partial birth abortions would be legal and have no limitations.

3) All U.S. tax payers would be funding abortions.

4) Parental notification will no longer be required.

It is estimated that the number of abortions will increase by a minimum of 100,000 annually. Perhaps most importantly, the government will now have absolute control on the issue of abortion. This could result in future amendments that would force women by law to have abortions in certain situations (rape, down syndrome babies, etc) and could even regulate how many children women are allowed to have. The Culture of Death would have had a great triumph. [/EET]


The alarm expressed by this widely forwarded e-mail is somewhat premature. As of Feb. 10, more than a month into the new Congress, the Freedom of Choice Act did not exist at all. No version of this bill had been introduced.

Earlier versions of the FOCA proposal have been kicked around Congress for at least the last 20 years without ever coming to a vote. The furthest that we could find such a measure getting was when different versions cleared committees in the House and Senate in 1993, the first year of President Bill Clinton’s administration. But even though Democrats then held the White House, a commanding 57 to 43 majority in the Senate and a 254 to 175 majority in the House, the measures died without reaching the floor of either chamber.

What is sparking the current expressions of alarm is President Barack Obama’s promise to sign FOCA should it pass. In July 2008, for example, when a questioner at a Planned Parenthood gathering asked what he would do about "anti-choice legislation at the state level," Obama said: "The first thing I’d do as president is sign the Freedom of Choice Act. Now that’s the first thing I’d do." His WhiteHouse.gov site says that Obama "will make preserving women’s rights under Roe v. Wade a priority in his Adminstration." The U.S. Conference of Catholic Bishops organized a postcard campaign in late January, encouraging Catholics to write Congress in opposition to FOCA.

The Last Time Around

We can’t say what the 2009 version of the Freedom of Choice Act will say once somebody gets around to introducing it. The best we can do is look at the version that died in the last Congress. The crux of that iteration of the Freedom of Choice Act was this wording in Section 4:

(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.

That’s pretty broad language, but we’ll try to address the claims in the e-mail in turn.

  • Would it force Catholic and all other hospitals to perform abortions, as claimed in this message?

Answer: Unclear. The bill’s language clearly applies to governments, not to private hospitals, religious or otherwise. And Jill Morrison of the pro-abortion-rights National Women’s Law Center told the blog RH Reality Check that Catholic hospitals needn’t be affected, since FOCA’s "prohibition of interference" with the right to an abortion applies to "a government." Said Morrison: "A hospital is not a state actor, and cannot be magically transformed into one due to its getting federal funding, as set forth in the Church amendment," a 1973 law that prevents government from requiring health care workers or hospitals to perform abortions if doing so is against their religious or moral beliefs.

Nevertheless, Catholic bishops say FOCA would undermine the nation’s 624 Catholic hospitals by sweeping aside "conscience laws" like the Church amendment. Then, they maintain, the hospitals would either have to perform abortions or forgo federal funds such as Medicare and Medicaid payments, which would lead to their closure. Many of the bishops have said they would advocate shutting down the hospitals. The Catholic Health Association of America, which opposes FOCA, has said that it does not expect the bill to affect Catholic hospitals and that it would seek to keep hospitals open if FOCA turned out to threaten them.

  • Would "partial birth" abortions be made legal without limit?

Answer: No, but it’s likely that at least part of the Partial Birth Abortion Ban Act of 2003 would fall. However, FOCA would bar governments from interfering with a woman’s right to have an abortion only "prior to viability" of a fetus, or after viability only if her health or life are at risk. Some so-called partial birth abortions take place before viability, some after. Those that take place after viability could still be banned, so the claim that such procedures would "have no limitations" is false.

  • Would U.S. taxpayers be forced to fund abortions?

Answer: Unclear. In 2004, Democratic Sen. Barbara Boxer of California introduced a version of FOCA and issued a press release stating that the legislation would require Medicaid to cover abortions and public hospitals to perform them. But conservative anti-abortion legal scholar Doug Kmiec, an Obama supporter, told FactCheck.org that he wouldn’t expect Congress to pass a statute that imperils the Hyde Amendment, which prohibits the use of federal funds for abortion in most cases. Kmiec pointed out that many congressional Democrats "would be very hesitant about providing federal subsidies for abortion" and that trying to overturn or impede the Hyde amendment "through a statute that doesn’t have a fulsome debate on that topic alone would be setting up that proposition for defeat." 

  • Would FOCA do away with parental notification laws?

Answer: Probably. State laws requiring parental notification before a minor can have an abortion seem to be just the sort of government interference with a woman’s right to choose that the law was designed to prevent. Other laws might also fall, such as those requiring a woman to wait (usually 24 hours) between a state-mandated "counseling" session and the actual abortion procedure.

Speculation runs hot on both sides about what FOCA would really do or not do, but  experts aren’t sure. "We just don’t have enough data that would allow us to predict what would happen if FOCA passed, much less the magnitude of the impact," Rachel Jones, a senior research associate at the Guttmacher Institute, told FactCheck.org. Specific claims such as "abortions will increase by a minimum of 100,000 annually" are well beyond what can be supported by hard evidence.

At the moment, the bill is a kind of Rorschach blot, with both sides imposing their ambitions and fears on it, but Kmiec told us that "no serious legislative person would vote for it in its present state. … It would in all likelihood be defeated, or defeated in substantial respect." Supporters of FOCA seem to be shy of the required votes even after November’s strong Democratic gains. NARAL Pro-Choice America estimates that the current Congress has 186 House members and 40 senators who will reliably vote for abortion rights – well short of majorities in either chamber.

A final note: The inflammatory claims at the end of the e-mail, raising the spectre of forced abortions and limits on the size of families, are contrary to the actual language of the bill that was before Congress last year. The bill said explicitly that "[a] government may not … deny or interfere with a woman’s right to choose … to bear a child."

Update: A reporter asked Obama about FOCA at a news conference on April 29, 2009. The president said that signing FOCA was not his method of choice for resolving abortion disputes: "Now, the Freedom of Choice Act is not my highest legislative priority. I believe that women should have the right to choose, but I think that the most important thing we can do to tamp down some of the anger surrounding this issue is to focus on those areas that we can agree on. And that’s where I’m going to focus."

-Jess Henig


Zenit News Agency. "Bishops Oppose Freedom of Choice Act." 14 Nov. 2008.

New, Michael J. "The Effect of Parental Involvement Laws on the Incidence of Abortions Among Minors." Insight. 24 Sep. 2008.

Henshaw, Stanley K. and Katherine Kost. "Trends in the Characteristics of Women Obtaining Abortions, 1974 to 2004." Guttmacher Institute. Aug. 2008.

Vanderslice, Mara. "Kmiec Responds to Criticism on Abortion Reduction ‘Scam.’" Progressive Revival. 3 Oct. 2008.

Boxer, Barbara. "Boxer Introduces Legislation To Codify Roe V. Wade On The 31st Anniversary Of The Decision." 22 Jan. 2004.

America Civil Liberties Union. "Public Funding for Abortion." 21 Jul. 2004.