In the aftermath of the passage of the pro-abortion health care reform bill and its signing into law by President Obama yesterday, the question for pro-life Americans is what to do now? How to respond? We will not give up, but what should we do?
Some state attorneys general are challenging the law in court as unconstitutional because of its mandate that Americans purchase health care insurance. The Commerce Clause of the Constitution, limiting Congress to legislating on matters affecting interstate commerce, has never been so broadly construed by the courts as to cover a decision not to do something (i.e., not to purchase insurance).
I think there is a very good chance these lawsuits will succeed, and they are certainly headed for a decision by the Supreme Court. (That, by the way, emphasizes the importance of what are expected to be at least one and perhaps two Supreme Court nominations by President Obama this spring/summer. We need Supreme Court justices who respect the original meaning of the Constitution.)
Americans United for Life will offer its assistance in any of these suits where the challenge is also based on the anti-life provisions of the health care reform bill.
As an organization that pioneered the development and passage of pro-life laws in the states, we are already offering our assistance to any state that wishes to “opt-out” of the pro-abortion provisions of the law. Such laws would prevent insurance plans that cover abortions from being offered on the exchange in that state. We have already had three states to take us up on our offer, and we expect many more will.
This debate revealed something many pro-life people did not know – some states provide abortion-coverage to state employees. Many states now want to change that, and we will help them do so.
On the federal level, much depends on the actual content of the executive order. Will the terms be the same as those released a few days ago? If so, the executive order will address community health centers to ensure they do not pay for abortions.
But that’s the promise. Will there be delivery?
Pro-abortion groups are already steaming mad at the President. Will his secretary of Health and Human Services, Katherine Sebelius, one of the most pro-abortion governors in the nation when she was Kansas’ governor, issue guidelines?
Will they be tight? AUL and other pro-life Americans will be watching this closely.
Of course, pro-abortion forces may challenge such regulations in court, perhaps with a wink from Obama, contending they go beyond the terms of the health care reform law. As we know, an executive order cannot change the underlying statutory law on which it is based.
We would, of course, seek to help defend in court regulations excluding abortions from community health centers.
Will the President keep to his word to apply the “principles” of the Hyde Amendment to health care reform as he pledged to do this week? First, of course, he literally cannot do so because Hyde prohibits insurance plans to cover abortion, and the new law permits it. Rep. Bart Stupak, D-Mich., seems to think regulations “fix” this, but for the reasons stated above, they cannot.
Second, will the President’s executive order define certain terms in the law (such as “preventive care”) so as to exclude abortion? Pro-abortion Senators defeated amendments to do this when the bill was before the Senate. The terms are not defined in the bill (now, law). The executive order, as least the draft, does not do so.
If the President means to apply Hyde principles, he should make this point clear. If he doesn’t, AUL and others will press HHS to do so.
William L. Saunders is senior counsel for Americans United for Life.
