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The Executive Order: Why Rep. Stupak and his coalition got it wrong

Tuesday, the President signed the anti-life Senate health care reform bill into law after it narrowly passed the House of Representatives.  The bill was able to pass the House after the President secured a deal with Rep. Bart Stupak (D-MI) and 5 or 6 other pro-life democrats who were promising to vote against it.

We extensively analyzed the deal, an executive order that the President signed yesterday, in one of our previous blog posts.  In short, the executive order addresses one of the life concerns in the health care bill, albeit, in a manner that can ultimately be undone.  However, the executive order fails to address the other life concerns we have repeatedly raised throughout this debate.

In an interview with Fox News’ Megyn Kelly, Rep. Stupak fielded questions about the executive order.  Below is AUL’s rebuttal to Rep. Stupak’s answers in defense of the executive order and his vote in favor of the bill.  These answers should clarify why the pro-life community is so outraged by the final health care reform language.

1. Stupak: An executive order has the full force of law.  It is just as good as having a law.

AUL: An executive order has the force of law when it is consistent with statutory law.  However, a statute cannot be undone by an executive order or regulation. For example, regarding the new health care reform law, an executive order cannot prevent insurance plans that pay for abortions and participate in the newly-created exchanges from receiving federal subsidies, because this allowance is explicitly written in the bill.

The fact that statutes cannot be overridden by executive orders or regulations has been repeatedly affirmed by the United States Supreme Court. In 2006, the Supreme Court struck down an executive order issued by President Bush to invoke military commission jurisdiction over Hamdan because Congress had impliedly prohibited this action. Hamdan v. Rumsfeld, 548 U.S. 557, 579-80 (2006).

Further, executive orders can be undone or modified as quickly as they are created.

Congressman Stupak implicitly acknowledged that a statute is better than an executive order when he said a moment later “would I have liked to have had a law, would I have liked to have had the Stupak Amendment that was passed in the House in the Senate bill? absolutely.”

2. Stupak: They have unequivocally said there will be no abortions at the community health centers, they will not be paid for, and a number of other protections are put in.  This is a very good executive order.

AUL: As background, the Senate bill does not prohibit new funds for community health centers (CHCs) from being used to pay for abortions. While the executive order states that the Hyde Amendment and longstanding regulations currently prohibit the use of CHC funds for abortions, the Hyde Amendment is not applied to CHC funding by statutory law, but only by regulations from an administrative agency.

Congressman Stupak is correct that the executive order provides that the Hyde Amendment will apply to the new authorization and appropriation of CHC funds in health care reform.  While this section may effectively prohibit the use of CHC funds for abortions, a court could interpret the statutory language as requiring the use of the funds for abortions because there is no statutory prohibition, which courts have done in the past with other health care statutory language.  Again, the executive order is not permanent law, just as regulations are not permanent law.  Either or both of these can be repealed by President Obama and his administration (or future administrations) fairly easily.

3. Stupak: You’re right . . . there is nothing that would stop this President from a month from now, a year from now, 10 years from now, of repealing this executive order. . . .Whether it’s an executive order or even a statute the next congress, even this congress could overturn a law in the next six months.

AUL: In spite of the fact that 7 out of 10 Americans oppose the use of taxpayer dollars to pay for abortions, anti-funding laws are generally reduced to (1) appropriations riders that must be renewed annually (e.g.  the Hyde Amendment and the prohibition on the participation of insurance plans that cover abortions in the Federal Employee Health Benefits Program), (2) regulations that can be changed by different administrations and (3) executive orders that can be repealed by any president (e.g. the Mexico City Policy that prohibited federal funding for organizations that promote and perform abortions overseas, which was repealed by President Obama).

Pro-life legislators are constantly fighting to keep these laws in place.  We had the unique opportunity to include a statutory provision on federal funding for abortion in health care reform.  By voting to support the Senate health care reform bill without such language, Rep. Stupak and his coalition squandered that opportunity.

Yes, statutes can be repealed as well, but such a repeal would require 60 votes in the Senate and a majority in the House.  Further, repealing a statute is subject to greater scrutiny by Congress and the public.

4. Stupak: If the president would revoke it, there is nothing that would stop either pro-life groups or pro-choice groups from going to court and challenge this executive order saying it should stay enforced . . .

AUL:  An executive order is the President’s prerogative, and he can revoke it at any time he pleases.

Further, the courts are not on our side on public funding for abortions.  History has shown that when legislation relating to health care does not explicitly exclude abortion coverage or funding, courts will include it.

For example, if Congress does not explicitly prohibit states from funding certain abortions with Medicaid (as Congress does through Hyde), states must fund them. For example, in 1996, in Planned Parenthood v. Engler, the Sixth Circuit held that abortion “fall[s] within several of Medicaid’s mandatory categories of care”  (family planning, outpatient services, inpatient services, and physician services) and that a state law that restricted funding for abortion to those necessary to save the mother’s life conflicts with the “mandate.”[1]

5. Stupak: Look in the executive order, It says under this act which is the health care bill, Hyde language shall apply . . . so I think we’ve adequately covered it in the executive order. . . . I think underneath the executive order as dictated . . . I’m not too sure they’re going to have to pay the 1 dollar. (During an exchange about the inclusion and subsidization of insurance plans that cover abortions in the health care Exchanges, and referencing the requirement in the bill that individuals enrolled in these plans must pay a separate portion of their premiums into an abortion account).

AUL: Based on this statement, Congressman Stupak believes that under the executive order, the new affordability credits and cost-sharing reductions created by health care reform will not be used to pay for elective abortions under any circumstances, and that no Americans will be forced to pay a portion of their insurance premiums into a fund that covers elective abortions.

First, on using these funds for abortions, the new health care law states clearly that if the Hyde amendment is not renewed, these federal funds may be used to directly fund abortion.  It was designed to be deconstructed that way, and an executive order cannot change that law.

The authors of the Senate language tied the prohibition on using the affordability credits to pay for abortions to the existence of the Hyde Amendment.  While they could have chosen to codify Hyde language in the bill by explicitly stating that affordability credits / cost-sharing reduction payments and any other funds in the bill cannot be used to pay for elective abortions, they instead provided that affordability credits / cost-sharing reduction payments cannot be used to pay for those abortions that are currently prohibited by the Hyde Amendment. In other words, if the Hyde Amendment – an appropriations rider that must be renewed annually – were not included yearly, abortion would be covered by the affordability credits under the Senate/Obama bill.

Executive orders have the force of law when they do not conflict with statutes.  In this case, if the Hyde Amendment were repealed, the executive order would be inadequate to prevent affordability credits / cost-sharing reduction payments from directly paying for abortions because of the explicit language in the bill.  The Executive order provides that the Act maintains current Hyde Amendment restrictions governing abortion policy and extends those restrictions to the newly-created health insurance exchanges.  In other words, sections 1 and 2 of the EO simply state that the Hyde Amendment applies to the exchanges.  However, the EO overstates what the bill does by saying that the Act specifically prohibits the use of tax credits and cost-sharing reduction payments to pay for abortion services.  In truth, as explained above, the bill only restricts the use of these funds for those abortions that currently cannot be funded under the Hyde Amendment.

Second, on federal subsidies for plans that cover abortions, the executive order will do nothing to change the provisions in the bill that allow insurance plans that cover abortions to participate in Exchanges, and thus require individuals in those plans to pay for abortions with their premiums (see #6 below).

6. Stupak: Actually it says in the executive order [the] secretary of HHS shall within 180 days bring up the rules and regulations that stay consistent with the Hyde language and they spell it out so I think we’ve probably got 180 days to see how they’re going to apply this.

AUL: Actually, the executive order simply directs the Director of OMB and the Secretary of HHS to develop a model set of segregation guidelines for state health insurance commissioners to use when determining whether exchange plans are complying with the Act’s segregation requirements. In other words, administrative agencies must develop guidelines for how to keep federal dollars separated from the portion of individuals’ premiums that directly pay for abortions.  This does nothing to change the fact that federal dollars will be subsidizing insurance plans that cover abortions, and completely contradicts the Hyde Amendment, which prohibits federal funding for insurance plans that cover abortions, regardless of whether the federal dollars directly pay for them.

7. Stupak:  “That provision that you speak of [the subsidization of insurance plans that cover abortions] and the executive order also mentions it doesn’t go in effect until 2014.  And as the colloquy on the floor was last night with Chairman Waxman we’re still going to have further discussions on this.  We basically have about four years yet to address this aspect of that bill on the Exchange issue.”

AUL:  It is irrelevant that this provision does not go into effect until 2014.  The only way to undo the damage is to repeal the provision with another statute, which requires 60 votes in the Senate and a majority in the House.  Congressman Stupak and his coalition had the power to demand that this be fixed in exchange for their votes.  If they had withheld their votes, the proabortion leadership would have been forced to choose between health care reform and the demands of the abortion lobby.

8. Stupak: It must be a good piece of legislation then if both sides are mad at you.

AUL: This old saying has a lot of truth in many legal and legislative contexts, but not in this one.  Because of the “deal” that Congressman Stupak and his coalition signed, the status quo on federal funding for abortion has been turned on its head.  Because of their “compromise,” insurance plans that cover abortions can receive federal subsidies, and the largest piece of health care legislation in decades has been signed into law without a comprehensive ban on the use of federal funds for elective abortions, and without a prohibition on requiring insurance plans to cover abortions.


[1] 73 F.3d 634, 637 (6th Cir. 1996).