Pro-Life Works: Executive Order on Abortion

March 25, 2010

The Problem with President Obama's Executive Order on Abortion

Eric Brown

Membership Services Associate

Following the passage of the health care bill in the House of Representatives on March 21, there has been much confusion about the Executive Order regarding abortion-related provisions of the health care bill that President Obama signed the day after the bill was signed into law.

This Executive Order was particularly key for the Obama Administration and Democratic leadership to sway a number of Democratic holdouts to vote with the party on the health care bill.  The Pro-Life movement has unequivocally renounced this strategy as deficient in solving the problem of federal funding of abortions.

Since Roe v. Wade, U.S. courts have held firmly that when Congress provides funding for “comprehensive” health services there is no reason to distinguish elective abortions from any other medical service; therefore, the U.S. federal government must subsidize abortion services.   This issue was resolved by annually renewing the Hyde Amendment, attached to several appropriation bills to prevent federal dollars from funding abortions.

Catholic University Law Professor Robert A. Destro notes that in the Supreme Court case Beal v. Doe, the argument was if Congress fails to explicitly exclude abortion as a fundable by taxpayer dollars, it must be treated no differently than any other federally-subsidized medical care.  In other words, the judicial standard is that without an explicit ban on abortion, such as the Hyde Amendment, federal law requires the federal government to pay for abortions through any federally-subsidized health services.

Any appropriation of federal funds for “comprehensive health services” through any program and mechanism that, as written, bypasses the Hyde Amendment, is subject under judicial precedent as necessarily inclusive of abortion funding.  The proposal that won the votes of Rep. Bart Stupak and his colleagues was to have President Obama issue an executive order to address their concerns, particularly the issue of no federal funding of abortions through Community Health Centers.

The Executive Order is insecure in this regard. Health legislation, following nearly forty years of legal precedent, creates a statutory requirement for abortion funding unless Congress clearly forbids such funding legislatively.  This is why the Hyde Amendment is annually renewed in Congress when voting on appropriations to fund Medicaid.  In the absence of Hyde, the U.S. government would be obligated by federal law to fund abortions through Medicaid.

The problem with President Obama’s Executive Order is that it is only enforceable until it is challenged in court.  An executive order cannot change the law.  Thus, President Obama’s Executive Order prohibiting federal funding of abortions is surely guaranteed to be defeated if it is ever challenged in federal courts.  The track record of the pro-abortion lobby and lawyers on this issue does not inspire the slightest bit of confidence that they will not address this issue at their earliest opportunity.  The door to federal funding of abortion will be wide open unless the new health care law is rescinded by a congressional vote or a new law is passed by Congress prohibiting abortion funding.