Commentary by Brian Rooney  

  December 9, 2008 ( – I recently attended a meeting of pro-life leaders from around the country, called in order to formulate a national strategy on how to defeat the promised Freedom of Choice Act (FOCA). During the 2008 presidential campaign, President-elect Barack Obama infamously stated, to much applause, “Well, the first thing I’d do as president is, is sign the Freedom of Choice Act. That’s the first thing that I’d do.”

  The intent here is to codify the decision in Roe v. Wade, preventing future politicians (and courts outside the Supreme Court) from giving any more power to the states to place limits on abortion. In doing so, FOCA actually goes beyond Roe, calling abortion a “fundamental right” guarded by the Equal Protection Clause of the Constitution (and not just the illusory “right to privacy” created in Griswold v. Connecticut, with Roe being part of its progeny).
  The call to action in the meeting was admirable, but in the final analysis, it spoke volumes about the pro-life leadership in our country today: It is a group completely on the defensive and has accepted Roe as a framework to work within, rather than a fight to overcome. Choosing to operate within Roe’s strictures has proven to be a failed strategy, bringing us to the point where there is a real possibility of FOCA being visited upon our nation.
  The parade of horribles (and they are truly horrible) that would follow as a result of FOCA include:
    * nullifying the 2003 Partial Birth Abortion Act;
    * repealing the Hyde amendment;
    * allowing abortions at military hospitals;
    * nullifying informed consent laws, parental notification laws, waiting periods, and born-alive infant protection acts;
    * forcing Catholic hospitals to perform abortions or close their doors;
    * ridding rights of conscience in various states; and much more.

  Those concerned pro-life leaders from the aforementioned gathering—as well as the bishops at the recent USCCB meeting—are right to speak out loudly against the bill. But there remains a hitch: What we are most likely to see from Congress is not a clean bill, but one debated and compromised. That is what Congress does, and that’s where the real danger is. Catholics who imprudently voted for the most pro-abortion candidate in history may also be fooled into supporting a “revised” FOCA.
  For example, what if a revised FOCA has an exemption for religious institutions like Catholic hospitals? Would that make the bill more palatable? What about a FOCA that allows the Hyde Amendment or the Partial Birth Abortion Act to endure? Will there still be vigorous opposition if we come to see a compromised version of FOCA? Or will we hear the same tired claims made by some pro-lifers that a compromise FOCA may actually lead to fewer incidences of abortion (and since Roe is here to stay, they say, FOCA might be a good thing from the Catholic perspective).
  No matter what form FOCA takes in its final version, it must be defeated. Retreat or compromise would only further cement the notion—among the general public, and even many pro-life leaders—that Roe is here to stay. In whatever form FOCA takes, it marks the end of the “incremental approach” to combating abortion that has been espoused by many mainstream pro-life leaders and organizations for the last decade or so as the only way to combat abortion. These are the same leaders who advised bishops against trying to overturn Roe, saying we did not have the votes on the Supreme Court. This “one way only” approach has led not just to the very real threat of FOCA, but to an incoming president who promises to fill our courts with pro-abortion judges. If this isn’t the right time, the next couple of decades will surely be no better.
  Pro-life leaders must reconsider the failed “incremental steps only” strategy that has done nothing to stop Roe. Their call to “wait” has produced the expected “never.”
  Brian Rooney is an attorney and spokesman at the Thomas More Law Center.