IN THE SENATE OF THE UNITED STATES
April 19, 2007
Mrs. Boxer (for herself, Mrs. Murray, Ms. Stabenow, Mr. Bingaman, Mr. Menendez, Mr. Lautenberg, Mr. Cardin, Mr. Schumer, Mrs. Clinton, Mrs. Feinstein, Ms. Mikulski, Mr. Baucus, and Ms. Cantwell) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
To protect, consistent with Roe v. Wade, a woman's freedom to choose to bear a child or terminate a pregnancy, and for other purposes.
This Act may be cited as the
Freedom of Choice
Congress finds the following:
The United States was founded on core principles, such as liberty, personal privacy, and equality, which ensure that individuals are free to make their most intimate decisions without governmental interference and discrimination.
One of the most private and difficult decisions an individual makes is whether to begin, prevent, continue, or terminate a pregnancy. Those reproductive health decisions are best made by women, in consultation with their loved ones and health care providers.
In 1965, in Griswold v. Connecticut (381 U.S. 479), and in 1973, in Roe v. Wade (410 U.S. 113) and Doe v. Bolton (410 U.S. 179), the Supreme Court recognized that the right to privacy protected by the Constitution encompasses the right of every woman to weigh the personal, moral, and religious considerations involved in deciding whether to begin, prevent, continue, or terminate a pregnancy.
The Roe v. Wade decision carefully balances the rights of women to make important reproductive decisions with the State's interest in potential life. Under Roe v. Wade and Doe v. Bolton, the right to privacy protects a woman's decision to choose to terminate her pregnancy prior to fetal viability, with the State permitted to ban abortion after fetal viability except when necessary to protect a woman’s life or health.
These decisions have protected the health and lives of women in the United States. Prior to the Roe v. Wade decision in 1973, an estimated 1,200,000 women each year were forced to resort to illegal abortions, despite the risk of unsanitary conditions, incompetent treatment, infection, hemorrhage, disfiguration, and death. Before Roe, it is estimated that thousands of women died annually in the United States as a result of illegal abortions.
In countries in which abortion remains illegal, the risk of maternal mortality is high. According to the World Health Organization, of the approximately 600,000 pregnancy-related deaths occurring annually around the world, 80,000 are associated with unsafe abortions.
The Roe v. Wade decision also expanded the
opportunities for women to participate equally in society. In 1992, in Planned
Parenthood v. Casey (505 U.S. 833), the Supreme Court observed that,
[t]he ability of women to participate equally in the economic and social
life of the Nation has been facilitated by their ability to control their
Even though the Roe v. Wade decision has stood for more than 34 years, there are increasing threats to reproductive health and freedom emerging from all branches and levels of government. In 2006, South Dakota became the first State in more than 15 years to enact a ban on abortion in nearly all circumstances. Supporters of this ban have admitted it is an attempt to directly challenge Roe in the courts. Other States are considering similar bans.
Further threatening Roe, the Supreme Court
recently upheld the first-ever Federal ban on an abortion procedure, which has
no exception to protect a woman's health. The majority decision in Gonzales v.
Carhart (05-380, slip op. April 18, 2007) and Gonzales v. Planned Parenthood
Federation of America fails to protect a woman's health, a core tenet of Roe v.
Wade. Dissenting in that case, Justice Ginsburg called the majority's opinion
alarming, and stated that,
[f]or the first time since
Roe, the Court blesses a prohibition with no exception safeguarding a woman's
health. Further, she said, the Federal ban
and the Court's
defense of it cannot be understood as anything other than an effort to chip
away at a right declared again and again by this Court.
Legal and practical barriers to the full range of reproductive services endanger women’s health and lives. Incremental restrictions on the right to choose imposed by Congress and State legislatures have made access to reproductive care extremely difficult, if not impossible, for many women across the country. Currently, 87 percent of the counties in the United States have no abortion provider.
While abortion should remain safe and legal, women should also have more meaningful access to family planning services that prevent unintended pregnancies, thereby reducing the need for abortion.
To guarantee the protections of Roe v. Wade, Federal legislation is necessary.
Although Congress may not create constitutional rights without amending the Constitution, Congress may, where authorized by its enumerated powers and not prohibited by the Constitution, enact legislation to create and secure statutory rights in areas of legitimate national concern.
Congress has the affirmative power under section 8 of article I of the Constitution and section 5 of the 14th amendment to the Constitution to enact legislation to facilitate interstate commerce and to prevent State interference with interstate commerce, liberty, or equal protection of the laws.
Federal protection of a woman's right to choose to prevent or terminate a pregnancy falls within this affirmative power of Congress, in part, because—
many women cross State lines to obtain abortions and many more would be forced to do so absent a constitutional right or Federal protection;
reproductive health clinics are commercial actors that regularly purchase medicine, medical equipment, and other necessary supplies from out-of-State suppliers; and
reproductive health clinics employ doctors, nurses, and other personnel who travel across State lines in order to provide reproductive health services to patients.
In this Act:
The term government includes a branch, department, agency, instrumentality, or official (or other individual acting under color of law) of the United States, a State, or a subdivision of a State.
The term State means each of the States, the District of Columbia, the Commonwealth of Puerto Rico, and each territory or possession of the United States.
The term viability means that stage of pregnancy when, in the best medical judgment of the attending physician based on the particular medical facts of the case before the physician, there is a reasonable likelihood of the sustained survival of the fetus outside of the woman.
Interference with reproductive health prohibited
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.
Prohibition of interference
A government may not—
deny or interfere with a woman’s right to choose—
to bear a child;
to terminate a pregnancy prior to viability; or
to terminate a pregnancy after viability where termination is necessary to protect the life or health of the woman; or
discriminate against the exercise of the rights set forth in paragraph (1) in the regulation or provision of benefits, facilities, services, or information.
An individual aggrieved by a violation of this section may obtain appropriate relief (including relief against a government) in a civil action.
If any provision of this Act, or the application of such provision to any person or circumstance, is held to be unconstitutional, the remainder of this Act, or the application of such provision to persons or circumstances other than those as to which the provision is held to be unconstitutional, shall not be affected thereby.
This Act applies to every Federal, State, and local statute, ordinance, regulation, administrative order, decision, policy, practice, or other action enacted, adopted, or implemented before, on, or after the date of enactment of this Act.