Abortion never became a major issue in the 2008 campaign. But Barack Obama’s promise of change extends to the modest legal protections pro-lifers have managed to enact on behalf of the unborn. He has pledged to eliminate them.

By next spring, the incoming administration and pro-life activists will be locked in a series of battles over healthcare mandates, federal funding of abortion, and the composition of delegations to UN conferences. Pro-lifers believe that everything they have worked for since Roe is at risk. In a speech at Catholic University, Cardinal Francis Stafford said that Obama’s “extremist anti-life platform … is aggressive, disruptive and apocalyptic.” He summed up the dark mood of his fellow activists: “On November 4, 2008, America suffered a cultural earthquake.”

Pro-lifers have reason to be worried. Obama has been an abortion-rights leader throughout his career. As a state senator in 2002, he spoke out against a bill that would have extended legal protections to infants who survive botched abortions in Illinois, saying the measure “was actually designed to overturn Roe v. Wade.” He helped scuttle the same bill as a committee chairman in 2003. Obama’s opposition stands out because that law was modeled on a similar federal “born-alive” bill that received unanimous approval in a 98-0 vote in the U.S. Senate the year before. Early in his primary campaign, Obama promised Planed Parenthood, “The first thing I’d do as president is, is sign the Freedom of Choice Act. That’s the first thing I’d do.”

According to the National Organization of Women, the Freedom of Choice Act (FOCA) would “sweep away hundreds of anti-abortion laws and policies.” The proposed law states, “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… (2) discriminate against the exercise of the rights set forth in paragraph (1).” Parental consent laws that exist in 36 states would disappear. “Conscience laws” that protect doctors and hospitals in 47 states would be jeopardized by the discrimination clause. The federal partial-birth abortion ban would be overturned. The Hyde Amendment, which restricts federal funding of abortion, would be abrogated. Essentially, FOCA would undo all the work pro-lifers have done to place legal limits on abortion since Roe. Professor Michael New, in a study published with the conservative Heritage Foundation, estimated that FOCA would result in approximately 125,000 more abortions performed annually.


FOCA hasn’t been seriously debated since 1993, the last time Democrats held majorities in Congress. Nearly two-thirds of the current members in the Senate have never cast a vote on it. Douglas Johnson, legislative director at National Right to Life, estimates that there are “58 Senators who are for Roe v. Wade, but not all of them are for FOCA because it goes so much further than Roe.”

The fight over FOCA could have serious consequences for healthcare generally. At the meeting of the U.S. Conference of Catholic Bishops, church leaders promised to close Catholic hospitals—nearly a third of all American hospitals—if FOCA passes. Selling these healthcare institutions to groups that would perform abortions was deemed to be “material cooperation with an intrinsic evil” and ruled out. One bishop, Paul Loverde of Arlington, suggested another tactic for fighting FOCA: civil disobedience. At a diocesan event in December, he told a crowd, “I would say, ‘Yeah, I’m not going to close the hospital, you’re going to arrest me, go right ahead. You’ll have to drag me out. … we will not perform abortions, and you can go take a flying leap.’”

Fr. Frank Pavone, the national director of Priests for Life, agrees with Bishop Loverde’s defiant stand, but doesn’t anticipate such a dramatic showdown: “It is certainly possible to defeat FOCA itself and also possible to modify and weaken it by preserving ‘freedom of choice’ for healthcare workers and institutions who freely choose not to participate in abortions. I expect that we will be able to do this, simply because such respect for religious freedom is so deeply rooted in American thinking.”

Even if FOCA is defeated, or modified substantially, Obama may begin implementing pieces of it. For instance, each year the Hyde Amendment must be re-authorized as a rider to the Health and Human Services’ budget. Passed in 1976, this requirement that government employees, military personnel, and Medicaid recipients pay for their own abortions was the first major victory for the pro-life movement.

“By even the most conservative estimate, there are more than one million Americans alive today because of the Hyde Amendment,” says National Right to Life’s Douglas Johnson. Even pro-choice groups admit the effectiveness of the provision. A 2007 NARAL fact sheet cited a study by the pro-choice Guttmacher Institute which shows “Medicaid-eligible women in states that exclude abortion coverage have abortion rates of about half of those women in states that fund abortion care with their own dollars.”

Obama’s commitment to serve pro-choice interests means that many of his larger agenda items will have abortion-related components. He has pledged that any healthcare reform package he proposes will require employer-provided plans to include coverage of abortion. He has also promised to overturn restrictions on money for fetal stem-cell research. Any last-minute legal protections the outgoing administration tries to grant healthcare providers who oppose abortion will probably be rescinded. Sister Carol Keehan, president of the Catholic Health Association, told the New York Times that these regulations were necessary because “we have seen a variety of efforts to force Catholic and other health care providers to perform or refer for abortions and sterilizations.”

Obama has unambiguously pledged to appoint pro-Roe justices to the Supreme Court. At the same Planed Parenthood event at which he promised to pass FOCA, Obama warned, “With more than one vacancy on the court, we could be looking at a majority hostile to a woman’s fundamental right to choose for the first time since Roe v. Wade and that is what is at stake in this election.” He voted against confirming both John Roberts and Samuel Alito to the high court.

Domestic policy isn’t the only concern for pro-lifers under an Obama administration. The Mexico City policy, which requires all nongovernmental organizations that receive federal funding to refrain from promoting abortion services in other countries, will probably be revoked, as it was during the Clinton administration. Rev. Patrick Mahoney, director of the Christian Defense Coalition, told media outlets that this reversal “would greatly increase abortions around the world. It would also create a scenario in which American evangelicals and Catholics would be paying for abortion referrals through their tax dollars.”

The appointment of Hillary Clinton as secretary of state has pro-lifers anxious as well. In 1995, it was Clinton who declared at the Fourth World Conference on Women, “women’s rights are human rights and human rights are women’s rights,” referring to abortion. From her new post, Clinton will be responsible for the delegations to UN conferences. Of particular importance to pro-lifers is the “Cairo plus 15” review of the International Conference on Population and Development, set for next year, and the “Beijing plus 15” conference on the Status of Women in 2010. These conferences produce non-binding resolutions, but the documents are important to activists because they are used by litigators and judges throughout the world as evidence of “new international norms” to which all countries should conform. Anti-abortion laws in Columbia were struck down in this fashion, and international norms were cited to overturn Texas’s anti-sodomy laws in Lawrence v. Texas.

Austin Ruse, president of the Catholic Family and Human Rights Institute, expects that delegates from the U.S. under an Obama administration “will reinforce the language in favor of reproductive rights in nonbinding documents.” He says, “the Bush administration was isolated at the UN. Muslim countries that normally would have sided with the U.S. on abortion issues looked the other way. The unpopularity of the Bush administration stopped certain conferences from happening.” Now, with a new administration, “the EU and the UN will have a big powerful new ally for their agenda.”

The economic crisis and two wars that Obama inherits may cause him to break his pledge to pass FOCA soon after he is inaugurated. But he has already begun putting tough pro-choicers in positions of influence. He chose as communications director Ellen Moran, the executive director of EMILY’s List, a PAC that raises funds for pro-choice female candidates. NARAL’s former legal director, Dawn Johnson, works closely with John Podesta on Obama’s transition team. Former Sen. Tom Daschle, now preparing to become secretary of health and human services, voted five different times to block pro-life bills passed in the House from reaching the Senate floor. Abortion access may no longer be first on his list, but Obama’s record, his campaign promises, and his appointments ensure that it won’t be far down the agenda either.

Pavone notes that there has already been a surge of interest in pro-life activism since the election. “There are those pro-life people who have been on the sidelines, perhaps lulled into complacency the last eight years by a sense that ‘the pro-life people we elected will do our work for us.’ Now they are coming forward by the thousands asking, ‘What can I do?’” With UN conferences just over the horizon, a Hyde Amendment that hangs by a thread, and a president committed to overturning all legal limits on abortion, there is plenty to do.  

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