President Obama and the Democratically controlled Congress have moved swiftly to reverse many of the ill-advised Bush administration policies. On many fronts, the new president has executed a sharp about-face. Not only are most of these moves equitable, just and wise, but the political strategy is savvy — get it done quickly while the nation is still squarely behind this self-described agent of change.
The president should not be so quick, however, to wade into the 35-year-plus national abortion debate and make any far reaching decisions.
Many advocates of unfettered abortion access expect President Obama to move to adopt the Freedom of Choice Act. FOCA, first proposed in 1989, would essentially codify the 1973 U.S. Supreme Court Roe v. Wade decision, and thereby supersede state laws on the issue. To adopt this change would substantially alter the abortion landscape and disenfranchise people and groups who are able to influence abortion policy at the state level.
The Supreme Court has driven national policy on abortion. At lower levels, federal courts can and have created clouds of confusion about how abortion is regulated. A consistent national standard for abortion would seem logical. But because the abortion debate is rooted in religious and moral realms, logic is not the prevailing force.
Nervous federal politicians often beg off answering questions about their stand on abortion by saying it is a state matter. While that dodge may be disingenuous, there are very good reasons for abortion to be regulated by states. For one thing, different states have different prevailing sentiments about abortion. The terms by which abortion is allowed should reflect the collective values of a state, as much as is possible.
There is already a lot of misinformation about FOCA, with some bloggers reporting that President Obama signed FOCA into law via an executive order. Not so. The bill must work its way through Congress and then be signed by the president.
What is accurate is that pro-abortion rights advocates, such as NARAL Pro-Choice America, want FOCA adopted as a way to reverse what they see as an erosion of abortion rights during the Bush years. “A woman’s right to choose is being chipped away both by the courts and state lawmakers. More than 500 anti-choice measures have been enacted in the states since 1995,” NARAL reports.
In particular, pro-choice advocates worry about the Supreme Court’s 2007 Gonzales v. Carhart ruling, in which then-U.S. Attorney General Alberto Gonzales appealed a ruling by the Eighth Circuit Court of Appeals. That lower court ruling struck down a ban on so-called partial-birth abortions. Pro-choice advocates worry the Bush appointees to the court — Samuel Alito and John Roberts — may soon tip a vote on an outright abortion ban.
President Obama would do better to favor the approach that his two Democratic predecessors took, so well-captured in the phrase President Clinton used, that abortions should be “safe, legal and rare.” There is no shortage of economic, education and health initiatives the new president and Congress can take to achieve those goals. FOCA is not the way toward consensus on such a difficult issue.