April 7, 2010 | Commentary on Health Care
During his controversial commencement speech at the University of Notre Dame last spring, President Obama said: "I do not suggest that the debate surrounding abortion can or should go away."
This spring, moving to remake the U.S. health care system, the president and his allies in Congress guaranteed the abortion debate would heat up again. Obamacare thrust the issue back into the heart of American politics.
A trillion dollars in new federal spending was put on the table. Health insurance was promised to more than 30 million Americans who didn't have it. Everyone would be required to get insurance. Yet with these controversies and more, the crucial vote on Obamacare in the House of Representatives came down to seven Democrats who were holding out on the question of using taxpayers' money to pay for abortions.
To longtime observers of Congress, this was no surprise. We've been here before.
In the 1970s, introduction of the Hyde Amendment to bar public funding of abortion sparked a five-year legislative and legal battle. It consumed hour after hour of congressional floor debate and ream after ream of federal court filings. The House and Senate engaged in pitched battles, with the more conservative "people's house" insisting on restrictive pro-life language.
The Supreme Court decided the resulting 1980 case, Harris v. McRae, by a 5-4 margin. All but forgotten is an amicus brief filed in the case that likely tipped the balance: A bipartisan House majority - among them House Speaker Jim Wright, Texas Democrat and no ardent foe of abortion - urged the justices to respect the appropriations power entrusted solely to Congress by Article 1 of the Constitution.
The Supreme Court, embracing the argument, cited this emphatic clause: "No money shall be drawn from the treasury, but in consequence of appropriations made by law(.)" Democratic and Republican leaders alike were loath to give up part of their constitutional power to spend, or not spend, public funds. Their position on abortion was secondary.
Into this history now stride President Obama and Rep. Bart Stupak. The Michigan congressman had vowed that he and up to 11 other House Democrats wouldn't support the Obamacare bill unless it prohibited abortion funding.
On March 21, the fateful Sunday of the House vote on final passage, the White House and Stupak announced a breakthrough. The president would sign an executive order deeming the Hyde Amendment to apply to all Obamacare spending - even where Congress explicitly did not ban abortion funding.
To veterans of the pro-life cause, the artful dodge was clear. Obama's executive order is the legal equivalent of leaving the baby exposed on the cliffside.
Thirty years ago, the Supreme Court upheld the Hyde Amendment by a strict (and accurate) reading of the Constitution's Appropriations Clause. Obama's use of his signature to levitate Hyde so it covers all contingencies is a trick worthy of Harry Potter.
But Stupak and fellow pro-life Democrats applauded, giving House Speaker Nancy Pelosi a seven-vote margin of victory. It's all but certain a lawsuit will challenge Hyde's application to Obamacare "reforms," from community health center grants to byzantine rules covering tax credits for private insurance plans purchased in state exchanges.
Obama's judicial appointees certainly made no pact to uphold executive orders. To the contrary, many if not most will welcome the chance to damage or destroy Hyde.
Obamacare also invites every state to revisit policies on paying for abortion.
Few remember when state legislatures last debated these policies. The law was settled a generation ago, and for good reason. In the years after Harris, abortion advocates sued under state constitutions as another avenue to underwrite elective abortion.
Their effort saw some success. But when all was said and done, two-thirds of the states joined Congress in banning taxpayer funding for abortion. And 13 of the 17 states that funded it did so only under court order.
No one knows how state legislatures would decide today. Until now, they haven't had to address the issue. Truth is, few wanted to.
A truce of sorts had been reached in the abortion wars. The "right" to abortion created in Roe v. Wade would stand largely unchallenged. And in general, in respect for a matter of conscience, the federal government would not compel the American people to pay for a procedure many consider wrong.
But now, despite their denials, the White House and Congress have cast aside this truce to achieve a federal takeover of health care.
Hold on to your hats. A new civil war over abortion policy just began.
Charles A. Donovan is senior research fellow in the DeVos Center on Religion and Civil Society at The Heritage Foundation.
First appeared in The Sacramento Bee