In July of 2007, in what at the time seemed the interminable Democratic presidential primary debates (a judgment we would later regret as we came to understand what “interminable” really means), Senator Barack Obama made what is, to the American Catholic Church, millions of pro-life voters and activists, and the good folks at Planned Parenthood, EMILY’s List, and whatever NARAL is calling itself these days, his most famous promise:

The first thing I’d do as president is sign the Freedom of Choice Act. That’s the first thing that I’d do.

The Freedom of Choice Act (”FOCA”), an old chestnut reintroduced in Congress after Congress to no avail, has become rather more famous because of now-President Obama’s promise. Its essential premise is to make abortion on demand (1) the law of the land from conception through desired birth, (2) government subsidized, and (3) completely protected from any sort of restriction by any level of government. Anyone with any familiarity with how this sort of thing normally works would probably think that’s an overbroad, bordering on propagandistic, description. In fairness, it is not.

After cutting through the “findings” of Congress — a shorthand for “why we’re doing this so a Court can agree with our rationale” — there are really only two, fairly small sections of the Act that have any real meaning, and they are precisely as broad as advertised.

The first is this:

SEC. 4. INTERFERENCE WITH REPRODUCTIVE HEALTH PROHIBITED.

(a) 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.

(b) Prohibition of Interference- 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 prior to viability; or
(C) to terminate a pregnancy after viability where termination is necessary to protect the life or health of the woman; or
(2) discriminate against the exercise of the rights set forth in paragraph (1) in the regulation or provision of benefits, facilities, services, or information.
(c) Civil Action- An individual aggrieved by a violation of this section may obtain appropriate relief (including relief against a government) in a civil action.

That portion actually has two stings in it. First, as anyone deeply familiar with the abortion debate (or who has read Ramesh Ponnuru’s excellent The Party of Death: The Democrats, the Media, the Courts, and the Disregard for Human Life) knows, the “health” exception is an exception that swallows the rule. The state of American abortion jurisprudence is that no health side effect is too small to take advantage of a health exception — not a few days of headaches, not mild depression, not even a vague ennui. In other words, instead of codifying the now-familiar (and legally overruled) trimester framework of Roe v. Wade, where a government could theoretically restrict access to abortion in the last three months of pregnancy except under extraordinary circumstances, under FOCA, no American government can effect any kind of restriction on abortion, not in access, not in funding, not even in the requirement that a minor’s parents be notified before she gets an abortion. At the very least, any restriction would be subject to a likely successful legal challenge if it had any chance of eliminating a single abortion.

And face legal challenges it would, because of the second sting in this section: the private right of action. Putting aside a long discussion on the breadth of this right, suffice it to say that a private right of action is the grail of any legislation that could offend anyone, anywhere, by subjecting the matters in it to expansion by activist judges. Put differently, the statute allows an aggrieved plaintiff to find an angry Carter-, Clinton-, or Obama-appointee Federal judge to overturn any State law even outlawing the murder of a child during a delivery, if the mother decides she would want such a thing.

The real catch, though, is this:

SEC. 6. RETROACTIVE EFFECT.

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.

The first part of the statute, on its face, would probably only outlaw abortion restrictions passed from the date of FOCA’s passage. This Section eliminates every law at every level ever passed that conflicts with FOCA. In other words, FOCA would make any restriction on any abortion performed on any woman or girl of any age at any time for any reason illegal, so long as she consents (with “consents” apparently being presumed for children getting abortions).

(It is a sign of the total incomprehension most Americans have for our abortion regime and jurisprudence that this Snopes article, which is basically wrong in most particulars (especially its understanding of the health exception), is probably being treated as authoritative somewhere.)

All of this remained in the realm of the hypothetical until Senator Obama won the 2008 election. Suddenly, a wide variety of groups who had never thought anything like FOCA realistically possible faced a universe in which FOCA would likely soon be a certainty. The United States Conference of Catholic Bishops — a group a friend recently described as “more afraid of being criticized than of being crucified” — who had, for the last thirty years, relied on the Republican Party as its bulwark against the most extreme manifestations of the abortion license, actually spoke up. (For non-Catholics, this same group has traditionally made written press releases about abortion, and saved the actual camera time for nuclear disarmament, more welfare services, and liberalized immigration law.)

Realizing that FOCA would allow governments to compel directly (by positive act of law) and indirectly (by threatening to withhold funds) Catholic hospitals to perform abortions, and further realizing that there simply aren’t enough Republicans to stand against FOCA this time, the Bishops actually began using words like “excommunication” and “formal cooperation with evil.” They have threatened to close the Catholic hospitals in this country, and have even been very clear about that to the new Administration. Anyone familiar with Church diplomacy can appreciate the closing to that letter:

I hope you will consider these comments in the spirit in which they are intended, as an invitation to set aside political pressures and ideologies and focus on the priorities and challenges that will unite us as a nation. Again I want to express our hopes for your Administration, and our offer to cooperate in advancing the common good and protecting the poor and vulnerable in these challenging times.

Elegant knife-thrusts notwithstanding, all of this basically misses the point. FOCA will likely not see anything more than a ceremonial vote. That’s because FOCA is a loser. Instead, the smart alternative is to pass the whole thing piecemeal, and under the radar. Here’s why:

As a general rule of thumb, if a bill or law is best known by an acronym, you can be assured that the majority of the voting public neither cares about it, nor wants to care about it, absent some sort of explanation, and that explanation controls the way headline skimmers think about it. Thus, FISA (”Foreign Intelligence Surveillance Act”) was not a large issue in the American mind these last four years, but “the law governing government wiretapping” was. Similarly, no one is going to hear anything about FOCA, because there’s a very real danger they would hear “the new law that even outlaws parental notification and ends the partial-birth abortion ban,” or “the new free abortions for everyone law.” Governing majorities that position themselves on the wrong side of emotional 70-30 splits in public opinion do not remain governing majorities for long.

Fortunately for President Obama and Congress, someone did the hard work of showing them how to enact FOCA piece-by-piece — and then some. Blandly titled Advancing Reproductive Rights and Health in a New Administration, you can find it here. Its contributors are the usual Turner- and Gates-funded suspects, many of whom stand to financially benefit from its recommendations: Planned Parenthood, Catholics for Free Choice, Physicians for Reproductive Choice and Health, and so on. One can only assume that the Sierra Club, the odd man out, signed on because it feels that the human population worldwide is not crashing fast enough. (I presume out of a surfeit of generosity that the document’s protestation that it was prepared entirely by outside groups for the Obama transition team, with no hand from that team, is actually more or less true.)

Want to know how to extort Catholic hospitals into performing abortions (or squeeze them into selling to someone who will)? Behold the power of ending the Weldon Amendment (pp. 7, 14, 35). Want to make certain that Planned Parenthood gets even more Federal tax dollars than what it already receives by direct appropriation? End the Hyde Amendment so that abortions are paid directly from the Treasury (pp. 7, 14, 32).

Snide remarks to the side, the document is actually a brilliant stroke: It lays out piece-by-piece the problems the pro-choice movement has run into since its policy agenda fell into the hands of the voters — inconveniences like having most counties run out of abortion providers, parental notification laws, restrictions on partial-birth abortions, hospitals refusing to murder the unborn, etc. — and lays out the precise steps the Executive and Legislative branches can undertake to fix them. It’s not just a “do this now” screed; it identifies precise bills to be passed, Executive orders to be reversed, agency policies to be changed, and so on. Helpful citations to and direct quotations from offending laws are readily available to any reader, but especially to any reader in the White House who would like to enact FOCA without having to offer universal healthcare just as all of the Catholic hospitals in the country shutter their doors.

The genius of this framework is that FOCA is barely mentioned (there’s one, glancing mention on page 15 in the context of partial birth abortion). There is no need for FOCA in this, because everything else FOCA aims to accomplish is laid out elsewhere. The eliminations of the Weldon Amendment and the Hyde Amendment are the bludgeons by which to force not-for-profit hospitals to perform abortions, or to close; to provide Planned Parenthood and the smaller abortion providers a steady stream of new patients (an incredibly important goal, given the declining demand for their services); to expand their reach onto Indian Reservations and military bases; and to making them an integral part of any national health care plan passed under the Obama Administration. (The document’s open appeal for additional funding for Planned Parenthood (p. 19) is almost charming in its honest demand for Danegeld.)

All of that is extremely important because Barack Obama has tried to cast himself as a sort of post-partisan national healer, and nothing tells Americans that partisan politics are in the air more than the word “abortion.” The more the Obama Administration is able to reward all of the various arms of the Culture of Death without being seen to do so — without launching a Gotterdamerdung/Kulturkampf spectacle unlike any seen in decades — the better. Forcing the acronym of FOCA, and what it stands for, into the public eye, can only make President Obama look like a partisan, which in turn can only hurt his carefully crafted image. Telling American parents that he is about to make it so that their teenaged daughters can go get abortions without letting them in on the little secret is unlikely to help, either.

With that in mind, the whole thing can be done in the way Candidate Obama preferred to act: Slowly, and willing to throw everything that had come before under the bus if need be. Should repealing the Hyde Amendment put his favorables upside-down, he can blame those horrible Congressional Democrats for giving him a budget bearing that poison pill, then simply have his Branch do its work to much less fanfare. It is at best unlikely that the New York Times will report breathlessly on President Obama’s decision to condition foreign aid to Uganda on its provision of abortion services through Planned Parenthood.

So while it’s possible that President Obama will be as tone-deaf as Harry Reid and Nancy Pelosi, count on FOCA never seeing the light of day, and the machinery of death being expanded slowly, behind the scenes, and allowing everyone but the activists to pretend nothing much has changed.