Congress's Abortion Strategy
FUROR ON THE HILL; 'Freedom of Choice Act' legislation expected to fail but would reveal members' stances
CONGRESS is gearing up for a litmus-test vote on abortion.
With the United States Supreme Court expected to allow further restrictions on abortion early this summer - an event likely to be heralded as the end of Roe v. Wade - abortion-rights advocates in Congress are angling to pass a so-called "Freedom of Choice Act" to affirm the nationwide right to abortion.
A vote on the abortion-rights bill, which the House leadership says will take place after the Supreme Court's ruling, will put members squarely on the record as being for or against a woman's right to choose. A member's position could be a decisive factor in the fall elections.
The bill, which advocates say would codify the Supreme Court's Roe v. Wade ruling of 1973, has virtually no chance of becoming law, at least this year. President Bush has promised to veto the bill, and proponents do not have the two-thirds majority needed to override the veto. Puts president on record
"A lot of this is political debate, because everybody knows we can't override a veto," says Judy Crockett, a pro-abortion-rights lobbyist for the American Civil Liberties Union. "But what it will do is put the president and members on record as to how they feel about a fundamental right."
The legislation itself is very short and broad-brush, designed to attract as wide support as possible. The bill states that "a state may not restrict the right of a woman to choose to terminate a pregnancy (1) before fetal viability or (2) at any time, if such termination is necessary to protect the life or health of the woman." In its only exception, the bill says that "a state may impose requirements medically necessary to protect the life or health of women referred to (above)."
Some pro-choice advocacy groups would like the bill to be more specific - for example, to spell out what the term "health" encompasses in this context (i.e., more than just physical health) or to include a "conscience clause," which would explicitly excuse anyone who objects to abortion from participating in such a procedure.
But the bill's congressional advocates do not want it encumbered with specifics and amendments - even those they would support - because, they say, then the Supreme Court could argue that only those provisions explicitly stated would be allowed.
"The base bill is as close as we can come to Roe," says Rep. Don Edwards (D) of California, chairman of the judiciary subcommittee that wrote the legislation. He says that by "codifying Roe," he means the full body of Supreme Court rulings related to Roe up until the Webster v. Reproductive Health Services decision of 1989. That decision on a Missouri law let stand for the first time since Roe v. Wade a cutting back on abortion rights, including a restriction on performance of abortion in public institu tions.
But the vagueness of the Freedom of Choice Act has left it open to different interpretations. Opponents of abortion say it goes well beyond the confines of Roe. Proponents of abortion rights disagree as to whether the bill would allow for even some of the restrictions already deemed constitutional in pre-Webster decisions - such as laws requiring parental notification or consent for minors' abortions. Foes deride bill
At a Capitol Hill hearing last week, abortion foes found fault with the Freedom of Choice Act on a number of fronts. The bill was widely derided for being even less protective of the unborn than Roe v. Wade.
"Not even Roe v. Wade's lip service to the interests of 'potential life' is included in the bill," said Helen Alvare of the National Conference of Catholic Bishops.
Roe stated that after fetal viability, roughly at the start of the third trimester, the state had a compelling interest in protecting potential life and could restrict or ban abortion.
Acting Assistant Attorney General Timothy Flanagan said in testimony that, because the bill identified a "woman's life and health" as the only basis for abortion regulation, the bill "would probably prohibit states from effectively regulating post-viability abortions and abortions undertaken for reasons of sex selection or birth control, from requiring parental notice, or from enacting laws that attempt to encourage live births...."
Even among themselves, abortion-rights advocates do not agree on how restrictive the Freedom of Choice Act would be. Harvard Law professor Laurence Tribe, a vocal advocate of abortion rights, stated at the hearing that he felt states could still enact regulatory laws - such as those prescribing parental consent or notification - under this law.
But in an interesting twist, the ACLU takes the same literal approach to the law that the anti-abortion Bush administration does, arguing that restrictions on abortion not expressly addressed in the law would not be permissible under it. A moot argument
The dispute makes for an untidy message from the abortion-rights side. Some argue that it is less important than it may seem. "The argument is moot, because this conservative Supreme Court would interpret this bill very narrowly," says Judith Lichtman of the Women's Legal Defense Fund.
Furthermore, Professor Tribe and the ACLU approach the question from different arenas. Tribe responds from the standpoint of a legal scholar and analyst of the Supreme Court. The ACLU, in its official position papers, is outlining what it views as the correct approach to abortion law - not what it thinks the Supreme Court would allow in practice.
Last week's hearing focused in part on whether Congress even had a right to pass a Freedom of Choice Act. Abortion-rights advocates say Congress does have jurisdiction under the US Constitution's Commerce Clause (because of the interstate travel that would result from the banning of abortion in some states) and under provisions of the Fourteenth Amendment that protect individual liberty and equal protection of the laws.
The Bush administration questions the right of Congress to define "equal protection" and rejects invoking of the Commerce Clause.