Legitimate Defense of Civil Rights or Raw Congressional Power Grab? The Constitutionality of the Freedom of Choice Act

Abstract

The Freedom of Choice Act (FOCA) would sweep aside virtually all state and federal restrictions on abortion. It has been repeatedly considered by Congress and is currently supported by President Obama and many members of the Democratic majority in Congress. This paper first argues that the Act would sweep more broadly than many of its proponents are willing to admit, not only permitting partial-birth abortion and removing parental notification requirements and waiting periods, but also potentially eliminating conscience clause protection for healthcare workers and eliminating state and federal funding bans, thereby indirectly requiring taxpayer funding of abortion. The paper then considers the constitutionality of the Act and concludes that it would be an improper exercise of Congress' authority under Section Five of the Fourteenth Amendment and, though a proper exercise of authority under the Commerce Clause, FOCA should provoke reexamination of its Commerce Clause jurisprudence. The paper considers the current makeup of the Court and their rationale for previous opinions, determining that it is likely consideration of FOCA's constitutionality would result in a resurgence of the the Court's federalism line of cases and further limitations on the Commerce power. This paper is the winner of the 2008-2009 Alliance Defense Fund William Pew Religious Freedom Scholarship Competition.