It was deeply disappointing to read Congressman Bart Stupak’s op-ed, “Why I wrote the ‘Stupak Amendment’ and voted for health-care reform,” which appeared in the Washington Post on March 27. It was disappointing because it contained an attack on the integrity of pro-life organizations, like mine, that fought to keep abortion out of health care reform, and because it mischaracterized the bill and the executive order that President Obama signed.
I have no desire to attack Rep. Stupak personally. No one knows what promises or representations were made to him in the 11th-hour whipping of House members for the vote. We also do not know precisely what his choices and limitations were, real or perceived, or the exact number of votes that were still in play. However, we do know that the final vote in the House on the health care reform bill was 219-212. Thus, on the face of it, since 216 votes were needed for passage, it appears that if Stupak and even three other pro-life democrats had withheld their votes, the bill would not have passed. Would that have been a good outcome? You bet it would—not because, as Stupak argued, pro-life Americans oppose comprehensive health care reform (many do not), but because the bill marked a massive expansion of abortion (as I will explain below).
Now, Congressman Stupak may disagree with that assessment, and he may honestly believe President Obama’s executive order was the best deal for pro-life Americans. However, for him to suggest, as he did in his op-ed, that pro-life opposition to the deal that he struck is “disingenuous at best”—and that the deal he reached is somehow significantly “pro-life”—is simply untrue.
First, as noted, it is not the case that pro-life organizations that criticized the deal he made were really against the health care bill and used pro-life concerns to defeat it. My organization, Americans United for Life, studiously avoided taking a position on the merits of the bill as such; our opposition, as evidenced by our pubic statements, was always to the bill’s anti-life provisions. I am certain this is true for many, if not all, other pro-life groups.
Second, the executive order is simply a bad deal. It does not effectively extend the principles of the Hyde Amendment to the new law.
In his op-ed, Rep. Stupak criticized pro-life groups that embraced President Bush’s executive order restricting embryonic stem cell research while later criticizing President Obama’s executive order. But, this is comparing apples and oranges. While some pro-life groups did, contrary to what Stupak asserts, criticize President Bush’s executive order for not being rigorous enough, it was issued by a pro-life president, while the health care executive order was issued by a pro-abortion president (one, it must be remembered, who promised Planned Parenthood that abortion was the “heart and soul” of health care reform). This distinction matters because for an executive order to have binding legal effect, it must be implemented by regulations and those regulations must be enforced. With this executive order, we are left depending upon a pro-abortion president and pro-abortion Secretary of Health and Human Services Kathleen Sebelius.
Even if one accepts without blushing their assurances, regulations still must be developed and implemented. Even with pro-life President Bush, it took years to get conscience-protection regulations promulgated by HHS. Does anyone believe Obama’s HHS will act more quickly? At best, it will take years.
Further, even if the Administration implemented regulations, a court could strike them down because the prohibition they world contain is not mirrored in the actual words of the statute, something courts have done in the past with other health care statutory language. It does not matter whether the language of Obama’s executive order is similar to that of past executive orders, as Stupak asserts, but whether it goes beyond the terms of the statute. There is plenty of reason to believe it does and that a court would strike down regulations based upon it.
The deal embodied in the executive order is also a bad one because it is so limited. The bill extends abortion, contrary to the principles of the Hyde Amendment, in many ways—by extending tax credits to plans that cover abortions, by containing language that can be interpreted by the Obama administration as requiring coverage of—and thereby extending—abortion (eg, through “preventive care”), by severely limiting the reach of its abortion restriction to the use of tax credits and leaving other spending under the bill unrestricted, by tying its restriction regarding tax credits to the continued yearly existence of the Hyde amendment, and by massive expansion of funding to community health centers. Only the latter is addressed by the terms of the executive order.
The executive order, in short, is a bad deal for pro-life Americans. It flips the Hyde Amendment principles on their head, making the provision of abortion normative as part of health care, no longer cabined outside it. The abortion lobby knows this—their disingenuous characterization of the Hyde Amendment as applying only to funding for abortion, not funding for coverage, shows it. It is time Rep. Stupak stopped denying it.
William Saunders is senior vice president of Legal Affairs at Americans United for Life.