The promoters of the FOCA sometimes claim that its purpose is to "codify Roe v. Wade," the 1973 Supreme Court decision that legalized abortion on demand. But the key binding provisions of the bill would go further than Roe, invalidating all of the major types of pro-life laws that have been upheld by the Supreme Court in the decades since Roe.
"The claim that the bill would ‘codify Roe' is just a marketing gimmick by the proponents," explained Johnson. "The sponsors hope that journalists and legislators will lazily accept that vague shorthand phrase – but it is very misleading. The references to Roe in the bill are in non-binding, discursive clauses. The heart of the bill is a ban that would nullify all of the major types of pro-life laws that the Supreme Court has said are permissible under Roe v. Wade, including the ban on partial-birth abortions and bans on government funding of abortion."
The bill flatly invalidates any "statute, ordinance, regulation, administrative order, decision, policy, practice, or other action" of any federal, state, or local government or governmental official (or any person acting under government authority) that would "deny or interfere with a woman's right to choose" abortion, or that would "discriminate against the exercise of the right . . . in the regulation or provision of benefits, facilities, services, or information."
This no-restriction policy would establish, in Senator Boxer's words, "the absolute right to choose" prior to fetal "viability."
The no-restriction policy would also apply after "viability" to any abortion sought on grounds of "health." The bill does not define "health," but in some past abortion cases the Supreme Court has sometimes used the term to apply to any physical or emotional consideration whatsoever, including "distress."
The term "viability" is usually understood to refer to the point at which a baby's lungs are developed to the point that he or she can in fact survive independently of the mother – currently, about 23 or 24 weeks. However, the bill contains no objective criteria for "viability," but rather, requires that the judgment regarding "viability" be left entirely in the hands of "the attending physician" – which is to say, the abortionist.
The bill also prohibits any government actions that would "deny or interfere with a woman's right to choose to bear a child," but supporters of the bills have not cited any actual laws that would be invalidated by that provision.
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