Nationalizing the Abortion Debate

In what I consider a wise strategic move, Democrats have introduced legislation which would protect a woman’s right to choose under federal law, explicitly precluding state laws and constitutional amendments that undercut a woman’s rights. The anti-woman theocrats have overplayed their hand with laws like South Dakota’s, and they are only begining to realize the terrible impact their miscalculation will have. Nationalizing the issue and binding the prospects for its passage to a new Democratic majority is a brilliant way to nationalize the debate and mobilize the vast majority of Americans who don’t want to return to the days of back-alley abortions.

The new law is titled the Freedom Of Choice Act (FOCA) which cleverly emphasizes its purpose to focus voter’s attentions of women’s rights and the threat they are under from the GOP. The law rests Congressional authority on the Commerce Clause, thus there is little doubt it would survive judicial challenge. The legislation points out that 87% of counties do not have an abortion provider and thus women, not to mention medicines and supplies and the doctors performing the proceedures, are all frequently travelling in interstate commerce.

The operative portion (PDF) of the legislation is admirably brief and to the point:

(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.

The effect of this legislation would be staggering. It would give a private right to sue to anyone aggreived under it’s terms, essentially eliminating any hurdles or disabilities to abortion rights at the state level. In one fell blow the state legislatures would be put out of the abortion regulation business.

Say what you will about Democratic strategy (oxymoron anyone?), sometimes we get it absolutely right despite our own best efforts. FOCA can be as powerful a national rallying cry as ever were such stunts as the gay-bashing state ballot measures of ’04 or Bush’s DOA marriage amendment. The vast majority of Americans will strongly approve of this legislation, and send Democrats to Congress to make it a reality, if local candidates start running on it.

This is a political gift, candidates; don’t let it pass you by. The assualt on women’s reproductive rights by the Bush Administration and Republican’s nationally mustn’t go unaswered.