Michael Stokes Paulsen, The University of St. Thomas School of Law

Commonweal has recently published a column by Professor Cathy Kaveny of the University of Notre Dame Law School, “Bad Law: What FOCA Is – and Isn’t.” FOCA is the acronym for “The Freedom of Choice Act,” a piece of proposed federal legislation that President Obama has strongly endorsed.  During the 2008 presidential campaign, Obama committed to make adoption of FOCA an early priority of his administration.

Professor Kaveny was and remains a supporter of President Obama, despite his aggressive public stance in favor of protecting and expanding the legal right to abortion on demand.  She is one of a small group of Roman Catholic law professors who have labored to show that Obama’s pro-abortion legal stances are not as extreme as they appear to be.  The Commonweal article is an effort to mitigate (in part) – and in some respects to deny – the legal consequences that would follow from enactment of FOCA.  In the end, Kaveny disfavors FOCA as needlessly divisive.  (FOCA is “bad” in that sense.)  Much of Professor Kaveny’s column, however, is directed at questioning whether FOCA would meaningfully change present abortion law – that is, whether it would have the substantial pro-abortion legal consequences that its critics (and, it should be added, its openly “pro-choice” advocates) claim.

It is difficult to spin FOCA as inconsequential.  With all due respect to Professor Kaveny, a straightforward analysis of the proposed statute shows that it would have important substantive consequences, of four main types:

First, by banning state laws that in any way “interfere with” the choice of abortion before viability – a more abortion-protective standard than exists under present law and a central feature of the bill – FOCA would materially expand abortion rights in several ways.  It would invalidate state laws that attempt to persuade women to choose not to have abortions by providing them with information about alternatives to abortion, about the ability of pregnant women to receive state assistance for support of their child, and about the condition and stage of development of the child at the point in pregnancy at which the abortion is sought.  FOCA would also likely invalidate “informed consent” laws and 24-hour waiting requirements, on the ground that they “interfere with” the abortion choice.  So too, almost certainly, would FOCA void the laws of many states that provide for parental involvement in minors’ abortion decisions.  Finally, FOCA’s ban likely would eviscerate state “conscience” laws protecting the right of medical providers and individuals not to provide or assist in providing abortions. FOCA would also invalidate state constitutional provisions (including state constitutional protections of the freedom of speech or the free exercise of religion) protecting pro-life conscience in such fashion.

Second, FOCA also likely would invalidate state law bans on particular methods of abortion, like “partial birth” abortion, that sometimes may be prohibited under current law.

Third, FOCA appears to provide a new federal statutory right to equal state government funding of abortion, where a state provides resources or benefits that support the alternative choice of childbirth and child care and education.

Fourth, and perhaps most significantly, FOCA would serve to entrench abortion rights, in two ways.  First, FOCA would provide a federal statutory right to abortion that protects legal abortion at least as much as (indeed, more than) the Supreme Court’s constitutional abortion doctrine under Roe v. Wade and Planned Parenthood v. Casey.  In the event the Court were to overrule, limit, or cut back on those decisions, FOCA would provide equivalent or greater legal abortion rights.  Second, by so doing, FOCA likely would prevent the Court from ever having the occasion to reconsider (and thus overrule or modify) Roe and Casey in the first place, by rendering such reconsideration unnecessary and pointless.  Because a federal statute would in any event protect the abortion right to an equal or greater degree, it would never be necessary for the Supreme Court to “reach” the question of whether the Constitution protected such a right, under usual principles of judicial restraint and avoidance of decision of constitutional questions.

FOCA thus has dramatic and important implications for abortion.  It is no mere restatement and duplication of existing Supreme Court decisions (and even if it were, it would remain significant for its entrenchment effects).  In what follows, I develop each of these four main points at greater length.  Before doing so, I set forth section 4 of FOCA, the core substantive part of the bill:

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.

* * * * *

1.  FOCA clearly would have the effect of expanding abortion rights, as against state laws or rules requiring that certain information be provided to women, as part of “informed consent” to the abortion procedure, about abortion itself, about the human fetus, and about abortion alternatives and state financial benefits.  Under FOCA, such state laws, and others requiring waiting periods and parental notice or consent requirements for minors, would appear to “interfere with” the woman’s abortion choice, or discriminate against that choice, and therefore would be invalid under FOCA.

The legal analysis here is straightforward.  Under present constitutionalized abortion law (Planned Parenthood v. Casey, 1992), states and the federal government may enact laws that affect the abortion decision pre-viability so long as those laws do not place an “undue burden” on the choice of abortion.  An “undue” burden is defined as a law that places a “substantial obstacle in the path” of actually having an abortion.  This is contrasted with regulations that “do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn” but do not pose such a “substantial obstacle.”  (Casey).

FOCA would invalidate far more: a state regulation may not “deny or interfere with a woman’s right to choose” to have an abortion.  Clearly, certain state (and federal) laws may “interfere” with the abortion choice by attempting to delay or influence it, even when such action does not present a “substantial obstacle” to having an abortion.  The “undue burden” standard of present law looks to whether state action meaningfully prevents the choice of abortion.  The “interfere with” standard of FOCA looks to whether the state is insinuating itself into the choice, well short of denying the choice outright or imposing an “undue burden” (Casey’s language) on the choice.  The fact that “or interfere with” goes beyond Casey’s language and also goes well beyond “deny” confirms that it is a far broader prohibition on any legal requirements that attempt to influence the abortion choice.

In addition, FOCA would invalidate state laws that “discriminate against the rights set forth” (including the “right to terminate a pregnancy”) in “the regulation or provision of benefits, facilities, services, or information.”  This would be a drastic enlargement of abortion rights.  Under present constitutionalized abortion law, government policy may forthrightly favor childbirth over abortion, in funding (discussed further, below), provision of benefits, provision of information, and services.  This has been sustained in a long string of Supreme Court decisions, including Casey (1992), Rust v. Sullivan (1991), Webster v. Reproductive Health Services (1989), Harris v. McRae (1980), and Maher v. Roe (1977).  Government may even deny the services of government hospitals and government employees for abortions. (Webster).   Under FOCA, such actions plainly would constitute “discriminat[ion]” by the state against the exercise of the right to choose abortion, in the state’s regulation or provision of benefits, facilities, services, and information.

It is thus quite easy to see how these differences in language would produce differences in results.  The types of laws upheld in Webster would be invalid under FOCA.  24-hour waiting requirements (upheld in Casey) and informed consent and information-providing requirements (also upheld in Casey) would be invalid under FOCA.  Such rules intrude upon abortion-choice process, even though they do not actually prevent or bar an abortion from being had.  Parental involvement laws requiring parental notification or consent (with restrictions and exceptions) also “interfere” with a minor’s abortion decision – even though they cannot legally prevent it – and would thus be invalid under FOCA but not under present abortion law.

It is also easy to see how state “conscience laws,” which permit individuals (and in some cases entities) objecting to abortion to decline to perform, refer for, or suggest abortions, might well be deemed to “interfere with” the ability to choose abortion, or “discriminate” against “the exercise” of abortion “in the regulation of . . . services.”  A state law provision that permitted certain conscientiously opposed persons or hospitals to decline to perform abortions but otherwise left undisturbed a general duty to provide medical care would literally “interfere with” the choice of abortion and “discriminate” against the exercise of abortion in state “regulation of” the provision of medical services.  FOCA would almost certainly invalidate all such laws.

This would apply to protections of conscience contained in state constitutions as well as state laws.  The Supremacy Clause of the U.S. Constitution (Article VI, section 2) provides that federal statues prevail over anything in the constitutions or laws of the states.  Accordingly, FOCA would pre-empt and displace any provision of state law – including freedom of religion or freedom of conscience provisions of state constitutions – not consistent with FOCA’s policy.

Professor Kaveny’s analysis of these points in her Commonweal column is neither sound nor credible. She purports not to know what the legal effect of the “interfere with” and “discriminate” language might be: “But what, concretely, does this mean?” she asks.  Professor Kaveny then muses about whether FOCA might be interpreted in a fashion to bring it more in line with prior judicial abortion decisions.

This is highly unpersuasive as legal analysis.  FOCA does not incorporate-by-reference the Supreme Court’s abortion decisions.  FOCA does not track the Supreme Court’s stated standards for evaluating challenges to abortion regulations.  Rather, FOCA adopts its own standard using its own, different language.  No good, careful lawyer would believe that FOCA in this respect merely restates present Supreme Court doctrine.  Clearly, the bill’s purposes are to broaden the abortion right, using broader language; to ground the abortion right on a more secure (i.e., statutory) legal basis than is afforded by the Court’s (potentially) shifting constitutional doctrine; and to pre-empt (i.e., displace) state law attempts to restrict, discriminate with respect to, or in any other way “interfere” with abortion.  To suggest that FOCA effects no meaningful change in the substance of abortion law is either disingenuous or delusional.

Finally, it should be noted that this same analysis obviously applies to new, or contemplated, laws that could be said to “interfere” with the abortion choice, such as requirements that an ultrasound be performed, and presented to the mother, prior to any abortion, or a prohibition on abortion for reasons of sex selection.  Present constitutionalized abortion law may or may not permit such restrictions (or others that might be imagined).  Those constitutional issues have not been addressed by the Supreme Court to date.  In each such case, however, such a law would appear to be invalid under FOCA.

2.  FOCA would also likely invalidate state law bans on particular methods of abortion, such as so-called “partial birth” abortions that could be prohibited under the reasoning of the Supreme Court’s decision in Gonzales v. Carhart (2007).  For better or worse, Gonzales v. Carhart appears to uphold such bans only where an abortion could be had safely (by the mother) by some other method in any event.  Whatever small room this leaves for state bans on certain abortion methods would be contracted to the vanishing point by FOCA.  The proscription of a method of abortion probably would be considered to “interfere with” the right to choose abortion whenever it would affect the woman and abortion provider’s “choice” in regard to abortion, including (in all likelihood) discretion as to abortion methods.

A point of modest agreement with Professor Kaveny’s analysis:  Professor Kaveny rightly questions whether FOCA would be construed to repeal the federal statute banning partial-birth abortions. The better view is that it would not.  FOCA, absent clearer language indicating such an intention, should not be understood to repeal the federal partial-birth law. The general interpretive principles that the specific controls the general and that repeals by implication are disfavored both suggest that FOCA should not be understood to have that effect.  The question is not entirely free from doubt, however. Section 6 of FOCA provides that its command “applies to every Federal . . . statute . . . adopted . . . before, on, or after” the enactment of FOCA. It is conceivable that a court could construe this language as repealing all prior federal law restricting or regulating abortion in ways arguably inconsistent with FOCA’s statutory right – including the federal partial-birth statute.

At all events, however, FOCA almost certainly would have such a pre-emptive effect with respect to state partial-birth bans (a point Professor Kaveny does not separately address).  This has meaningful consequences.  At present, the federal and state laws may provide overlapping coverage in some cases; either sovereign (the federal government or the state government) could enforce the ban, within a particular state.  But in the event the federal statute were repealed (which of course always remains possible, by separate enactment) or, equally possible, in the event the executive branch directed that the law not be enforced, the effect of FOCA clearly would be to bar enforcement of similar state laws, leaving no such provisions enforceable by government officials.

A related point:  FOCA on its face permits government to prohibit abortion when the unborn child has reached the point of viability (defined by FOCA as “that stage of pregnancy when, in the best medical judgment of the attending physican based on the particular medical facts of the case before the physician, there is a reasonable likelihood of the sustained survival of the fetus outside of the woman”).  However, there is an exception to this rule where “termination is necessary to protect the life or health of the woman.”  The term “health” – unlike “viability” – is not defined by the bill.  Under current abortion law, “health” is a stylized term-of-art embracing essentially any medical, psychological, emotional, social, economic or family reason that the woman and the abortion provider agree justifies having an abortion even where the child is able to survive outside the mother.  The consequence of this sweeping “health” exception is that the right to choose abortion for essentially any reason at all is not materially altered at the point of viability.  The exception swallows the rule.  In this respect, FOCA does not change current legal language and thus appears not to depart from the standards employed by current abortion law.

3.  A third major effect of FOCA would be to provide a new federal statutory right to state government funding of abortion, where the state provides resources or benefits with respect to pregnancy, childbirth, or child care in other respects.  As noted above, section 4(b)(2) of FOCA forbids government to “discriminate against” the exercise of abortion rights “in the regulation or provision of benefits, facilities, services, or information.”  Thus, state law bans on performing abortions at state hospitals or involving state personnel would be invalidated.  (As noted above, this would reverse the result in Webster.)  Most likely, so too would state restrictions on or prohibitions of government funding of abortions be overturned by FOCA.  This is especially likely where the argument can be made that the ban disfavors abortion as opposed to childbirth, in the provision of public welfare or medical benefits.  Accordingly, FOCA would likely reverse the result in Maher v. Roe, as well, in which the Supreme Court had upheld state laws providing Medicaid benefits for childbirth but denying them for abortion.

Professor Kaveny attempts to evade this point with the observation that unfunded mandates are often politically controversial.  This is true, but legally irrelevant.  The clear legal effect of FOCA would be to require government funding and provision of facilities for abortion, on terms sufficient so as not to be found to “discriminate against the exercise” of abortion rights.  That this may require state expenditures, and that some people might find this objectionable (for any of a number of reasons) does not in any way negate the fact that this is what the language accomplishes.

Professor Kaveny rightly doubts, however, that FOCA would itself be understood as compelling federal funding of abortion, unless the Hyde Amendment (prohibiting such funding) is either repealed or allowed to lapse.  (Once again, the more specific would likely control the more general, and FOCA would likely not be construed as a repeal by implication of the more specific law.  But once again, it is also true that the question is not free from doubt, given section 6’s explicit repeal of all contrary federal law.)  FOCA’s prohibition on discrimination against the exercise of abortion rights “in the . . . provision of . . . information” would, however, likely also overturn the result of the Supreme Court’s decision in Rust v. Sullivan (1991).  Rust upheld federal regulations providing that a funded family planning project not “encourage, promote or advocate abortion as a method of family planning or provide referral for abortion as a method of family planning.”  Under FOCA, such regulations would appear to be invalid, on the ground that they “discriminate against” abortion – which was precisely the purpose of those regulations.

FOCA thus would require government funding, encouragement, and provision of abortion in many circumstances in which present abortion law does not require such actions.

4.  Finally, and perhaps most significantly, FOCA would serve to entrench abortion rights.  In addition to providing a larger statutory protection of abortion rights than is provided by present Supreme Court decisions, part of FOCA’s purpose obviously is to provide a statutory “back-up” in the event the Supreme Court were to become persuaded that Roe and Casey were erroneous interpretations of the Constitution and that the Constitution in fact does not contain a right to kill living human fetuses.  If the Court were ever to overrule or modify Roe, FOCA would provide the same or broader abortion rights in any event.

Indeed, the very existence of FOCA would have a tendency to entrench Roe and in effect “immunize” that decision from reconsideration.  The Supreme Court regularly avoids decision of federal constitutional questions where a decision on federal statutory grounds can resolve the controversy without the need to address the constitutional issue.  Here, where FOCA provides a statutory abortion right covering all the ground of Roe and Casey (and then some), there would be no occasion for the Court to reconsider Roe.  FOCA would provide a statutory abortion right in any event, and prevail over any state law or state constitutional provision to the contrary.  Any state laws challenging the present extent of abortion rights would be resolved on statutory grounds.

The only situation in which this would not be the case would be if FOCA itself were unconstitutional.  There is little prospect at present that any court would so hold. It is true that some pro-life advocates maintain, plausibly, that the most fundamental error of Roe v. Wade was its denial of the status of legal “person” (within the meaning of the Fourteenth Amendment) to the living human fetus. The consequence of such a position would be that government policy allowing such persons to be the victims of the private violence of others, or authorizing such action by statute (as in FOCA), would constitute unconstitutional government denial of the “equal protection of the laws” to such persons.  Such an argument would of course require that Roe v. Wade be overruled.  Indeed, it would necessitate a far more dramatic reversal of existing law: a holding that the Constitution affirmatively protects the right to life of the unborn as against private action and government inaction.  Objectively, however, this argument has little support in present judicial doctrine.  It is, at present, simply not a plausible ground for believing that FOCA could be held unconstitutional in a court challenge.  (And Professor Kaveny does not suggest that it is.)

Outside of such a dramatic argument, however, it is difficult to conceive of a valid ground on which FOCA would be deemed unconstitutional.  Professor Kaveny suggests – quite uncertainly and equivocally – that a court might find that Congress lacks power to enact FOCA, under the Commerce Clause.  There is little ground for believing that this would occur, however.  In form, FOCA (1) modifies or qualifies all other federal laws and regulations; and (2) pre-empts and voids state laws that prohibit, interfere with, or discriminate against a particular type of commercial transaction or the provision of a particular service with a commercial value – abortion.  The first set of applications is entirely unproblematic from a constitutional standpoint; Congress may modify the content of any federal law or regulation it had power to enact in the first place, with respect to the operations of the federal government.  The second set of applications falls well within the scope of Congress’s powers under the Commerce Clause of Article I, section 8, under settled Supreme Court doctrine.  While certain recent decisions have offered sometimes competing views of the scope of Congress’s power to directly regulate purely intrastate noncommercial activities of persons (handgun possession in a school zone, in United States v. Lopez (1995), tortious and criminal violence committed against women, in United States v. Morrison (2000)), there is little doubt that Congress may legislate generally to pre-empt state regulation of certain types of goods, services, or transactions that it finds to have an interstate commercial impact or market component. Professor Kaveny’s unclear suggestion to the contrary is unconvincing.

The sole vulnerability of FOCA in this regard is a slight one (and one not discussed by Professor Kaveny):  FOCA as drafted prohibits discrimination against the exercise of abortion rights by state government “in the regulation or provision of benefits, facilities, services, or information.”  (Emphasis added).  A court might conclude that the state’s own provision of services – as distinct from a state’s regulation of private commercial activity – is not within the scope of Congress’s commerce power, under a narrow “market participant” exception discussed in some of the Supreme Court’s “dormant” commerce power cases.  In the event FOCA is enacted, this would be the most promising avenue of constitutional challenge.  But it is not all that promising.  The exception is narrow, shrinking, difficult to sustain under the language of FOCA and would in any event apply only to a small percentage of FOCA’s application.  It does not pose a serious challenge to FOCA’s practical operation.

Professor Kaveny also raises the possibility that FOCA, because of its breadth, might be seen as Congress attempting to change the meaning of the Constitution itself.  This is an insubstantial argument.  First, FOCA merely adopts a broad statutory right, paralleling in some respects the Supreme Court’s abortion jurisprudence and going beyond it in other respects.  It does not purport to create by legislation a new constitutional right.  The fact that it is a broad statutory right is irrelevant. Professor Kaveny’s suggestion that FOCA “functions more like a constitutional provision than a federal law” is thus without merit.  Second, even if this objection were plausible, it would only mean that Congress lacked power to pass FOCA as a measure “to enforce” the requirements of the Fourteenth Amendment, under the Supreme Court’s analysis of section five of that amendment in City of Boerne v. Flores (1997).  It would not affect Congress’s separate, independent power to enact such a bill pursuant to the Commerce Clause.

In sum there is little room to doubt that FOCA, in almost all of its applications, would be upheld against any constitutional challenge.

* * * * *

Professor Kaveny’s essential argument is that FOCA’s legal consequences are unclear.  With all due respect, this position is simply indefensible under a straightforward reading of FOCA’s language and any realistic assessment of how that language would be interpreted and applied.  While there is room for uncertainty or disagreement concerning a few issues, in the main, FOCA’s legal effects are clear.  FOCA would invalidate nearly every state and federal law bearing on, or attempting to influence, the exercise of a choice of abortion.  FOCA would invalidate nearly every state or federal law substantively disfavoring abortion in the provision of benefits, services, and information.  FOCA would invalidate nearly every state or federal law protecting the conscience of medical workers or religious hospitals from participating in abortion.  FOCA would likely invalidate nearly any state law prohibiting partial birth abortion.  And FOCA would entrench abortion rights against further meaningful legal challenge.

Depending on one’s views about abortion, one can argue about whether these consequences are positive or negative.  But one cannot credibly contend, as Professor Kaveny does, that these consequences are unlikely or uncertain.

Michael Paulsen is Distinguished University Chair and Professor at the University of St. Thomas School of Law. Prior to coming to the University of St. Thomas School of Law, Paulsen served as the McKnight Presidential Professor of Law and Public Policy, Briggs and Morgan Professor of Law, and Associate Dean for Research and Scholarship at the University of Minnesota Law School. He received his B.A. degree with distinction from Northwestern University, where he was a member of Phi Beta Kappa. He received an M.A. degree in Religion from Yale Divinity School and a J.D. degree from Yale Law School, where he was an editor of the Yale Law Journal and a recipient of the Harlan Fiske Stone Prize for appellate advocacy.

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