Lethal law

As a young mother, Terri Herring had no political ambitions. But at age 25, while in the hospital after the birth of her third son, some pro-life activists came in and photographed the new baby with Herring's obstetrician, Beverly McMillan.

McMillan had the dubious distinction of having opened the first abortion clinic in the state of Mississippi. But after converting to Christianity, she quit the abortion business and became a vocal advocate for the unborn. The activists who visited Herring that day, friends of McMillan's, asked Herring if they could publish the photo they'd snapped on the cover of a pro-life magazine.

Herring said yes-and also started asking questions.

Questions like, how long into a pregnancy can a woman have an abortion? And, if a young girl gets an abortion, does she have to tell her parents?

Herring says now: "I didn't like the answers."

That was 1985. The following year, she attended a pro-life convention in Jackson, Miss. Mentored by a pro-life lobbyist named Karl Faulster, Herring and five other young moms, dew-fresh from the grassroots, bounced from office to office in the statehouse, telling legislators what most Mississippians did not know: that their minor daughters were legally allowed to sneak off for secret abortions. Shortly thereafter, the legislature passed the first two-parent consent law in the nation.

Since then, Herring, McMillan, and a coalition of committed pro-life activists have worked with state lawmakers to pass more than 20 statutory restrictions on abortion. The result: Six of the state's seven abortion clinics have shut down, and the number of abortions has plunged from a high of 8,184 in 1991 to 2,932 in 2007, a decline of 64 percent.

With only one clinic remaining and its abortionist, Joseph Booker, age--eligible for Medicare, Mississippi pro-life activists were nearing the threshold of becoming America's first post-Roe abortion-free state.

Until now.

Nationwide political shifts over the past three years have set the stage for Congress to wipe out not only Mississippi's progress, but similar pro-life gains across the country. With both chambers under Democratic control and Barack Obama in the White House, federal legislation called the Freedom of Choice Act (FOCA) could, with the stroke of a presidential pen, eliminate the pro-life legislation many states have enacted.

The trouble started in 2007. When the Supreme Court that April upheld the federal partial-birth abortion ban, some congressional Democrats correctly interpreted the ruling as a signal that abortion advocates could no longer rely on the high court to uphold an unfettered right to abortion. That same month, then-senator Barack Obama, with 19 Democratic co-sponsors, introduced FOCA.

Since 1993, abortion rates have declined for many reasons. One is legislative: Scores of state laws have mandated informed consent, waiting periods, ultrasound use, and parental involvement in minor girls' abortion decisions. Many regulations force abortion clinics to adhere to the same health and safety standards as other ambulatory medical facilities.

But FOCA, as written, would kill all such laws and even sever the handful of federal reins on abortion, such as the longstanding Hyde Amendment, which prohibits federal funding of abortion, and the partial-birth abortion ban.

FOCA proponents say the legislation would merely "codify Roe," or turn federal case law into statutory law. But Americans United for Life senior counsel Clarke Forsythe calls that "legal sleight of hand. The heart of FOCA is that it declares abortion to be a fundamental right. FOCA goes beyond Roe, and court cases since Roe, because no court has ever ruled abortion a fundamental right," like voting or free speech.

FOCA also nullifies any interference with abortion or discrimination against abortion, and applies both retroactively and in the future. This could affect even the "Choose Life" license plates available in some states, the proceeds of which fund pregnancy resource centers.

Some pro-life Democrats say the bill won't make it out of the Senate. "We had 78 House Democrats support the federal partial-birth abortion ban, as well as 17 in the Senate," said Kristin Day, director of Democrats for Life of America in Washington, D.C. That those same senators would now overturn something they voted for just six years ago, Day said, "doesn't make a lot of sense."

Day said she doesn't believe Democratic leaders will try to push FOCA this year in either legislative chamber. "It would be very divisive in the Democratic caucus," she said. "There were a lot of pro-life people in Congress who supported Obama for president."

During the campaign, Obama the candidate talked of the need to "reduce" abortion and provide more support for pregnant women. To that end, DFLA is throwing its weight behind the Pregnant Women's Support Act (PWSA), which Rep. Lincoln Davis, D-Tenn., and Sen. Bob Casey Jr., D-Pa., introduced in the House and Senate, respectively. PWSA advocates talk about reducing abortion by 95 percent over 10 years by offering material and emotional support for women who want to carry their pregnancies to term.

Casey, of course, is the poster-guy for Democrats' born-again abortion rhetoric. After so-called "values voters" helped the GOP trounce the Democrats in the 2000 and 2004 general elections, Democratic leaders began softening their abortion message. Strident stumping about a woman's "right to choose!" gave way to sound-bites about the tragic necessity of abortion and attempts to reduce the number. But now that the Democrats are in power once again, FOCA rather than PWSA is getting the press.

It was FOCA that Obama-the-candidate supported on the campaign trail. At a July 2007 fundraising event for the Planned Parenthood Action Fund (the group's political action committee), Obama said, "Well, the first thing I'd do as president is sign the Freedom of Choice Act. That's the first thing that I'd do."

Wild applause ensued.

Conservative legal analysts are not applauding. "Every scholar I've talked to assumes the federal courts will either not touch FOCA, or would uphold it," said Clarke Forsythe, senior counsel for Americans United for Life.

That's because two parts of the Constitution-the Commerce Clause and the 14th Amendment-give Congress the power to pass such a law. Historically, abortion supporters have waged their war on the bases of personal privacy and autonomy. But Forsythe and other analysts say FOCA proponents will this time argue that abortion is a medical procedure that flows in interstate commerce.

Accordingly, Forsythe has "no confidence that courts will throw out FOCA. To win against FOCA, we're going to have to keep it from getting to Obama's desk." AUL is fighting on three fronts: To date, the group has collected more than 325,000 signatures on its "Fight FOCA" petition (fightfoca.com).

The group is also publishing data on abortion in Maryland, Connecticut, Hawaii, Nevada, Washington, and California, states that have FOCAs of their own. While the national abortion rate has been falling since 1990, abortion in FOCA states has fallen less sharply, remained static, or increased.

AUL in late November published a model resolution criticizing and rejecting FOCA. The idea is for state law-makers to pass the resolution in their own states, putting federal legislators on notice that the folks back home wouldn't take kindly to their hijacking states' rights to regulate abortion.

Back in Mississippi, Terri Herring said, pro-life activists are both bracing for FOCA and pressing forward in spite of it: They are working to pass AUL's resolution, and also new legislation that would impose strict reporting requirements for abortions performed on minors, as well as live births to minors, both of which often result from statutory rape.

Still, the thought that FOCA could instantly reverse Mississippi's progress in fighting abortion causes Herring's throat to close with tears. "It's unimaginable," she said. "This has been my life's work. I would hope that something so radical would cause an uprising from people across the United States, demanding that these common-sense laws not be struck with the stroke of a pen."