Michael Paulsen on the Freedom of Choice Act and Moral Accountability

My colleague here at the University of St. Thomas, Mike Paulsen, has posted an analysis on the Moral Accountability website of the likely and substantial legal consequences should the Freedom of Choice Act be enacted.  He concludes that FOCA would have "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)."

Professor Paulsen's four major points, each of which is developed in further detail in the post, are these:

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.