II 

110TH CONGRESS 

1ST SESSION S. 1173 

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. 

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 

A BILL 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Freedom of Choice 

5 Act’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds the following: 


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1 (1) The United States was founded on core 

2 principles, such as liberty, personal privacy, and 

3 equality, which ensure that individuals are free to 

4 make their most intimate decisions without govern5 mental interference and discrimination. 

6 (2) One of the most private and difficult deci7 sions an individual makes is whether to begin, pre8 vent, continue, or terminate a pregnancy. Those re9 productive health decisions are best made by women, 

10 in consultation with their loved ones and health care 

11 providers. 

12 (3) In 1965, in Griswold v. Connecticut (381 

13 U.S. 479), and in 1973, in Roe v. Wade (410 U.S. 

14 113) and Doe v. Bolton (410 U.S. 179), the Su15 preme Court recognized that the right to privacy 

16 protected by the Constitution encompasses the right 

17 of every woman to weigh the personal, moral, and 

18 religious considerations involved in deciding whether 

19 to begin, prevent, continue, or terminate a preg20 nancy. 

21 (4) The Roe v. Wade decision carefully balances 

22 the rights of women to make important reproductive 

23 decisions with the State’s interest in potential life. 

24 Under Roe v. Wade and Doe v. Bolton, the right to 

25 privacy protects a woman’s decision to choose to terVerDate Aug 31 2005 17:43 Apr 22, 2007 Jkt 059200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1173.IS S1173

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1 minate her pregnancy prior to fetal viability, with 

2 the State permitted to ban abortion after fetal via3 bility except when necessary to protect a woman’s 

4 life or health. 

5 (5) These decisions have protected the health 

6 and lives of women in the United States. Prior to 

7 the Roe v. Wade decision in 1973, an estimated 

8 1,200,000 women each year were forced to resort to 

9 illegal abortions, despite the risk of unsanitary con10 ditions, incompetent treatment, infection, hemor11 rhage, disfiguration, and death. Before Roe, it is es12 timated that thousands of women died annually in 

13 the United States as a result of illegal abortions. 

14 (6) In countries in which abortion remains ille15 gal, the risk of maternal mortality is high. According 

16 to the World Health Organization, of the approxi17 mately 600,000 pregnancy-related deaths occurring 

18 annually around the world, 80,000 are associated 

19 with unsafe abortions. 

20 (7) The Roe v. Wade decision also expanded the 

21 opportunities for women to participate equally in so22 ciety. In 1992, in Planned Parenthood v. Casey (505 

23 U.S. 833), the Supreme Court observed that, ‘‘[t]he 

24 ability of women to participate equally in the eco25 nomic and social life of the Nation has been faciliVerDate Aug 31 2005 17:43 Apr 22, 2007 Jkt 059200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1173.IS S1173

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1 tated by their ability to control their reproductive 

2 lives.’’. 

3 (8) Even though the Roe v. Wade decision has 

4 stood for more than 34 years, there are increasing 

5 threats to reproductive health and freedom emerging 

6 from all branches and levels of government. In 2006, 

7 South Dakota became the first State in more than 

8 15 years to enact a ban on abortion in nearly all cir9 cumstances. Supporters of this ban have admitted it 

10 is an attempt to directly challenge Roe in the courts. 

11 Other States are considering similar bans. 

12 (9) Further threatening Roe, the Supreme 

13 Court recently upheld the first-ever Federal ban on 

14 an abortion procedure, which has no exception to 

15 protect a woman’s health. The majority decision in 

16 Gonzales v. Carhart (05-380, slip op. April 18, 

17 2007) and Gonzales v. Planned Parenthood Federa18 tion of America fails to protect a woman’s health, a 

19 core tenet of Roe v. Wade. Dissenting in that case, 

20 Justice Ginsburg called the majority’s opinion 

21 ‘‘alarming’’, and stated that, ‘‘[f]or the first time 

22 since Roe, the Court blesses a prohibition with no 

23 exception safeguarding a woman’s health’’. Further, 

24 she said, the Federal ban ‘‘and the Court’s defense 

25 of it cannot be understood as anything other than 


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1 an effort to chip away at a right declared again and 

2 again by this Court’’. 

3 (10) Legal and practical barriers to the full 

4 range of reproductive services endanger women’s 

5 health and lives. Incremental restrictions on the 

6 right to choose imposed by Congress and State legis7 latures have made access to reproductive care ex8 tremely difficult, if not impossible, for many women 

9 across the country. Currently, 87 percent of the 

10 counties in the United States have no abortion pro11 vider. 

12 (11) While abortion should remain safe and 

13 legal, women should also have more meaningful ac14 cess to family planning services that prevent unin15 tended pregnancies, thereby reducing the need for 

16 abortion. 

17 (12) To guarantee the protections of Roe v. 

18 Wade, Federal legislation is necessary. 

19 (13) Although Congress may not create con20 stitutional rights without amending the Constitution, 

21 Congress may, where authorized by its enumerated 

22 powers and not prohibited by the Constitution, enact 

23 legislation to create and secure statutory rights in 

24 areas of legitimate national concern. 


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1 (14) Congress has the affirmative power under 

2 section 8 of article I of the Constitution and section 

3 5 of the 14th amendment to the Constitution to 

4 enact legislation to facilitate interstate commerce 

5 and to prevent State interference with interstate 

6 commerce, liberty, or equal protection of the laws. 

7 (15) Federal protection of a woman’s right to 

8 choose to prevent or terminate a pregnancy falls 

9 within this affirmative power of Congress, in part, 

10 because— 

11 (A) many women cross State lines to ob12 tain abortions and many more would be forced 

13 to do so absent a constitutional right or Federal 

14 protection; 

15 (B) reproductive health clinics are com16 mercial actors that regularly purchase medicine, 

17 medical equipment, and other necessary sup18 plies from out-of-State suppliers; and 

19 (C) reproductive health clinics employ doc20 tors, nurses, and other personnel who travel 

21 across State lines in order to provide reproduc22 tive health services to patients. 

23 SEC. 3. DEFINITIONS. 

24 In this Act: 


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1 (1) GOVERNMENT.—The term ‘‘government’’ 

2 includes a branch, department, agency, instrumen3 tality, or official (or other individual acting under 

4 color of law) of the United States, a State, or a sub5 division of a State. 

6 (2) STATE.—The term ‘‘State’’ means each of 

7 the States, the District of Columbia, the Common8 wealth of Puerto Rico, and each territory or posses9 sion of the United States. 

10 (3) VIABILITY.—The term ‘‘viability’’ means 

11 that stage of pregnancy when, in the best medical 

12 judgment of the attending physician based on the 

13 particular medical facts of the case before the physi14 cian, there is a reasonable likelihood of the sustained 

15 survival of the fetus outside of the woman. 

16 SEC. 4. INTERFERENCE WITH REPRODUCTIVE HEALTH 

17 PROHIBITED. 

18 (a) STATEMENT OF POLICY.—It is the policy of the 

19 United States that every woman has the fundamental 

20 right to choose to bear a child, to terminate a pregnancy 

21 prior to fetal viability, or to terminate a pregnancy after 

22 fetal viability when necessary to protect the life or health 

23 of the woman. 

24 (b) PROHIBITION OF INTERFERENCE.—A govern25 ment may not— 


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1 (1) deny or interfere with a woman’s right to 

2 choose— 

3 (A) to bear a child; 

4 (B) to terminate a pregnancy prior to via5 bility; or 

6 (C) to terminate a pregnancy after viability 

7 where termination is necessary to protect the 

8 life or health of the woman; or 

9 (2) discriminate against the exercise of the 

10 rights set forth in paragraph (1) in the regulation 

11 or provision of benefits, facilities, services, or infor12 mation. 

13 (c) CIVIL ACTION.—An individual aggrieved by a vio14 lation of this section may obtain appropriate relief (includ15 ing relief against a government) in a civil action. 

16 SEC. 5. SEVERABILITY. 

17 If any provision of this Act, or the application of such 

18 provision to any person or circumstance, is held to be un19 constitutional, the remainder of this Act, or the applica20 tion of such provision to persons or circumstances other 

21 than those as to which the provision is held to be unconsti22 tutional, shall not be affected thereby. 

23 SEC. 6. RETROACTIVE EFFECT. 

24 This Act applies to every Federal, State, and local 

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1 sion, policy, practice, or other action enacted, adopted, or 

2 implemented before, on, or after the date of enactment 

3 of this Act. 

Æ 


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