In a recent interview, Representative Bart Stupak accused the National Right to Life Committee and the Catholic bishops of “hypocrisy” and of “just using the life issue to try to bring down health-care reform.” Meanwhile, the editors at the Catholic magazine Commonweal piled on, suggesting that pro-life groups, including the U. S. Conference of Catholic Bishops, were “lobbying groups hoping to stop Obamacare.” They praised Stupak for resisting “Republican efforts to sabotage health care reform.” In the heat of the debate, the Commonweal blog angrily announced that Americans United for Life “has herewith lost whatever credibility it still had as a nonpartisan prolife organization.” These charges are serious, but are they also true? Did pro-lifers abandon their principles in order to score a partisan victory?
Commonweal claims that the legislation contains no direct taxpayer funding of abortion. They fault other pro-lifers and the Catholic bishops for refusing to recognize this fact and accuse them of opposing the bill for reasons having nothing to do with abortion. Their insinuation is that the bishops’ claim that the bill expands the abortion license was a mere pretext.
Those who can only remember pro-life opposition to the health bill would do well to think back to November of 2009. When the Stupak amendment first came to the floor of the House, it met with skepticism or outright opposition from many conservatives. Americans for Prosperity said that it would be best to vote down the pro-life amendment. The conservative blogger Gateway Pundit initially dismissed it as “just a way for blue dogs to save face.”
But pro-life groups—the very ones Commonweal accuses of trying to kill health care reform—threatened to revoke the pro-life credentials of any Republican who opposed Stupak’s amendment. In a press release on November 7, National Right to Life declared that “a vote against the Stupak-Pitts Amendment can only be construed as a position-defining vote in favor of establishing a federal government program that will directly fund abortion on demand.” This legislative arm-twisting effectively ensured the passage of the bill, and it did so with the votes of many who had adamantly opposed it. Despite widespread resistance, National Right to Life faced only one conservative defection. If pro-life organizations hadn’t forced GOP members to make this pro-life, pro-reform vote, there would likely be no health care bill today. Congressman Stupak and the editors of Commonweal ought to pause for a moment to give that fact some consideration.
In the wake of the Stupak vote, Republican strategists Erick Erickson and Patrick Ruffini told conservatives to “blame National Right to Life” for the passage of the health care; Erickson accused National Right to Life of undercutting conservatives “in order to raise some money.” The Wall Street Journal editorial board said that Stupak had “played pro-lifers like a Stradivarius.” The break flared up again when Marjorie Dannenfelser, head of the pro-life Susan B. Anthony List, upset conservatives with a Washington Post editorial threatening to swing grassroots support to pro-life Democrats if Republicans didn’t continue to press the case for life.
Similarly, after the initial passage of the House bill (which received only one Republican vote), the USCCB published a supportive letter highlighting the superiority of the House bill to the Senate bill on all three of the bishops’ moral criteria: (1) affordability and improved access for lower-income individuals and families; (2) fairness to immigrants; and (3) protection of (a) human life and (b) the consciences of health care workers and taxpayers. Far from opposing the House bill on partisan conservative grounds, the USCCB faulted the Senate bill (which Obama and Pelosi finally pushed through) for failing in fairness to immigrants.
Clearly, the pro-life organizations’ strategy was independent of a Democratic or Republican agenda. Little surprise, then, that it alienated partisans on both sides—the partisans at Commonweal included. Their partisanship is most apparent in their persistent misrepresentation of three essential elements of the health care debate: President Obama’s executive order, the funding of Community Health Centers, and the original Senate compromise language on insurance funding.
The Executive Order
Pro-lifers were rightly concerned that the Senate health care bill would undermine the principle of the Hyde Amendment: that no federal taxpayer money be used to fund elective abortions. The Commonweal editors touted Congressman Bart Stupak as a pro-life hero for obtaining an executive order purporting to extend the Hyde principle to the final health care bill. In their editorial they praised the order for:
clarifying that the Senate bill’s alleged ambiguities would be interpreted according to the principle embodied in the Hyde Amendment … According to Obama’s order, Hyde will indeed apply to all funding for community health centers, and existing conscience protections will be upheld.
If the Commonweal editors believe that this executive order will prevent the public subsidization of abortion or protect taxpayers from funding the killing of unborn children, they are deluding themselves. As law professor Robert A. Destro has noted, for decades the federal courts have held (consistently with the 1977 case Beal v. Doe) that the Medicaid statute (and any other general law mandating “family planning” and certain other categories of service) must be construed to require abortion services unless laws passed by Congress explicitly rule this out. Executive orders sometimes have teeth, but not when they conflict with statutory mandates.
Perhaps we should repeat this point, which has been lost on many, including the Commonweal editors: Where an executive order conflicts with what a court interprets a statute to require, the statutory requirement prevails over the executive order. That’s the law. President George W. Bush learned this when he tried to have civilians suspected of terrorist ties tried by military tribunals after 9/11. Because his executive order conflicted with statutory requirements as interpreted by the federal judiciary, the Supreme Court invalidated the order. The Court did not rule that these trials were unconstitutional; rather, it held that the president was powerless to order them if this meant overriding laws passed by Congress as interpreted by the courts.
The Commonweal editors are right about one thing, though: the Hyde Amendment works only if it can be extended to cover all the money that HHS spends. To protect the pro-life Hyde principle, any new statute that draws treasury funds for health services must extend the Hyde Amendment to apply to these new independent streams of funding, or else the Amendment—and the pro-life principle—will be reduced to a dead letter.
The new legislation did not extend the Hyde Amendment to new funding streams. The House bill would have done that; the Senate bill did not. No wonder Cecile Richards of Planned Parenthood made no real effort to resist the executive order. The order was, as she put it, merely “symbolic.”
Community Health Centers
Commonweal contends that the new health care legislation does not involve direct taxpayer funding of abortions. This is emphatically false. Longstanding legal precedent will require funding for the Community Health Centers to cover abortions. The new law requires these centers to provide “family planning” and “gynecology” services. The courts, consistent with established precedents, will do the rest by interpreting these terms, in the absence of statutory language to the contrary, to include elective abortions.
HHS Secretary Kathleen Sebelius claims that a little-known 1970’s regulation would prevent federal funds from going to cover abortions. But this regulation can stand only if it has statutory support; like the executive order, it simply cannot prevent federal funding of abortion absent a statute explicitly doing the same.
The drafters of the Senate bill knew this perfectly well. So did major abortion advocacy organizations such as Planned Parenthood and NARAL Pro-Choice America. Why do the editors of Commonweal not understand it? Or do they imagine that the federal courts will set aside their decades-long interpretation of laws mandating reproductive health and gynecological services as requiring abortion coverage in the absence of a statutory prohibition of it?
The Hyde Amendment and the Senate Compromise
Commonweal editors have accused pro-lifers of “crying wolf.” Their tirelessly repeated claim is that the health bill’s insurance funding mechanism – the so-called Senate compromise – does not lead to direct taxpayer funding of abortion. This is a clever half-truth and so, in its way, more harmful than an outright lie. The original Hyde Amendment contained substantial protections for the unborn. The new language does little more than provide cover for those willing to support an abortion-expanding policy.
How exactly does the new law differ from Hyde? Its section on tax credits and abortion is called a “prohibition of federal funding” and refers to the Hyde Amendment, but it violates the policy of the Hyde Amendment by leaving out its critically important second clause, which forbids funding a health plan that includes elective abortions. This makes all the difference.
In each state’s insurance exchange, all health plans but one may cover elective abortions and receive federal subsidies under the new law; that is, only one must not. In that scenario, anyone whose health care needs are not met by the one plan not covering abortions will have to live with a plan that fails to meet his or her family’s (possibly urgent) health needs, or be forced by the government to make a separate premium payment every month solely to subsidize abortions.
And it truly does represent a break with the status quo. Private health plans have at least been permitted under our law to make accommodations for those of us who oppose the taking of human life by abortion (and insurers have done just that when enough premium payers demand it). The new legislation, however, forbids them to do so, by requiring that “each enrollee” in such a plan, without exception, pay the abortion fee. If implicating us in abortion by government-mandated payments is indeed “the wolf,” then it is time to note that the wolf is no longer merely at the door—he is in the house.
Supporters of abortion, including pro-abortion leaders in Congress, see the truth of the matter more clearly. California Senator Barbara Boxer, whose advocacy of public funding of abortion is unmatched in either chamber of Congress, reassured those on her side that the bill meets their goal of expanding abortion coverage by pointing out that its segregation of funds is a mere “accounting procedure.” How odd it is that supporters of abortion funding are willing to state the truth candidly, while some who claim to be pro-life insist on ignoring and even denying it. How bizarre that the editors of Commonweal accuse their fellow pro-lifers of “crying wolf” even as the avowed friends of the wolf are hailing his arrival.
Over the course of the health care debate, the major pro-life groups and the Catholic bishops faithfully adhered to the cause of life. They recognized the hollowness of Obama’s executive order, anticipated the threat posed by funding of Community Health Centers, and saw through an insurance funding scheme that claims to honor the Hyde Amendment’s principle while gutting its policy and violating its spirit. Their actions sometimes advanced health care reform and sometimes retarded it. The fact that they remained true to their principles—principles that the editors of Commonweal purport to share—during such a heated debate is bound to draw criticism from partisans. From pro-lifers, be they liberal, conservative, or in between, it deserves praise.
Copyright 2010 the Witherspoon Institute. All rights reserved.