By Denise M. Burke
AUL Vice President of Legal Affairs
*This is an updated version of a previously posted article.
Over the past six months, abortion advocates and their allies have begun insisting in the media and in communications with supporters that the “Freedom of Choice Act” (FOCA), while “important,” is not an immediate priority and that concerned Americans have overreacted to a piece of legislation that has not even been introduced in the current Congress. And despite having control of Congress and the Executive Branch, some have even appeared to confess they do not have the support needed for passage.
What are the reasons for this sudden and very public change of tune? Why—when they have President Obama’s promise to finally enact FOCA, 20 years after it was first proposed—do they appear to be quickly conceding defeat?
This apparent back-pedaling on a long-established priority is a testament to the ferocious opposition engendered by this radical federal power-grab masquerading as common legislation. However, as history repeatedly shows, abortion advocates’ apparent concessions should be viewed with a great deal of skepticism. Now more than ever we need to beware of “FOCA-by-Stealth”: attempts by the Administration, Congress, and abortion advocates to enact FOCA piecemeal while purposefully attempting to deflect—or at least neutralize—public opposition to their far-reaching abortion-on-demand agenda.
The Administration and abortion advocates have stolen a page from the successful pro-life playbook of incremental strategy. However, instead of targeted laws designed to fence in the abortion license and to protect women from the negative impact of abortion, they are using a variety of executive, budgetary, and legislative means to realize their “full vision of reproductive freedom” —code words for unrestricted, unregulated, unapologetic, and taxpayer-funded abortion-on-demand.
Recognizing an Ally, Abortion Advocates Waste No Time Making Demands
In December 2008 (just one month after the election), a coalition of pro-abortion groups—including Planned Parenthood, NARAL Pro-Choice America, and the American Civil Liberties Union (ACLU)—gave an expansive set of “marching orders” to the Obama Administration. In a 55-page memorandum subsequently posted on the Obama Transition Team’s website, the coalition urged the incoming Administration to, among other things:
- Rescind the Mexico City Policy first implemented by President Ronald Reagan in 1984 to prohibit federal taxpayer funding of programs and organizations that promote or perform abortions overseas.
- Restore federal taxpayer funding for the United Nations Population Fund (UNFPA), which actively promotes abortion worldwide and is arguably complicit in the continued enforcement of restrictive population control programs and forced abortions.
- Remove U.S. Food and Drug Administration (FDA) restrictions on minors’ access to over-the-counter “emergency contraceptives” (also known as Plan B). Then-existing FDA protocols required girls under 18 years of age to have a valid prescription for this potentially-dangerous drug.
- Reverse the December 2008 decision by the Department of Health and Human Services (HHS) requiring recipients of certain federal funding certify compliance with existing federal laws protecting healthcare professionals who are morally opposed to promoting or providing abortions or contraceptives.
- Appoint federal judges—including US Supreme Court justices—who support abortion rights and would interpret that “right” in an increasingly expansive and radical manner.
- Increase Title X family planning funding, which provides funding to Planned Parenthood, from $300 million in fiscal year 2009 to at least $700 million in 2010.
- Repeal the Hyde Amendment, which limits federal taxpayer funding for abortions for Medicaid-eligible women.
- Provide federal taxpayer funding of abortions for federal employees and their dependents, members of the Armed Forces and their dependents, residents of the District of Columbia, Peace Corps volunteers, Native American women, and women in federal prisons.
- Increase federal funding of international family planning programs from $461 million in fiscal year 2009 to $1 billion for 2010.
Finally and predictably, the document also specifically called on President Obama to take the lead in calling for Congress to pass the “Freedom of Choice Act” and—as he has already promised—sign it into law once it arrives at his desk.
Each of the demands listed above—and others contained in this controversial and extensive wish list—embody the spirit of FOCA and represent incremental but critical steps toward implementing its radical agenda. Sadly, the Obama Administration and its allies in Congress have acted quickly to meet and even exceed the demands of abortion activists. In just its first six months, the new Administration has met many of these demands and already earnestly begun action on the remainder.
How Is FOCA’s Expansive and Radical Agenda Being Implemented?
Despite the increasing backlash against both FOCA and the Administration’s apparent desire to centralize power and authority in the federal government at the expense of the States and the people, abortion advocates within and outside the Administration have not been dissuaded from their goal of unfettered, federal government-controlled, and taxpayer-funded abortion-on-demand. Instead, they are clearly determined to pursue what they believe is the path of least resistance: FOCA-by-Stealth.
Rather than a direct and possibly losing battle and debate over FOCA as a whole, they are resorting to a strategy of incremental and relentless implementation of the principles, spirit, and intent of FOCA. In pursuit of this strategy, they are already using a variety of tools including Executive Orders; Executive Branch appointments; federal budget appropriations; federal legislation; action on long-standing budgetary riders; efforts to overhaul the nation’s healthcare system; and even potential Senate ratification of international conventions to advance and fund a radical pro-abortion agenda.
American Presidents have issued Executive Orders since 1789; most of these orders have set the policies of executive departments or otherwise directed the activities of Executive Branch officials. Because they are an efficient and effective means for the Administration to unilaterally further its policy goals, Executive Orders have often been controversial. Only days into his term, President Obama made use of an Executive Order to further FOCA-by-Stealth.
On January 23, 2009—just three days after his inauguration—President Obama signed an Executive Order to repeal the Mexico City Policy prohibiting U.S. taxpayer funding of international family planning programs that promote and perform abortions overseas. Among the groups denied funding under this former policy was the International Planned Parenthood Federation (IPPF), the parent organization of the Planned Parenthood Federation of America (more commonly known as “Planned Parenthood”).
In a statement released the next day, President Obama blithely ignored the mounting evidence of abortion’s negative impact on women and the fact that this funding is often used by groups such as IPPF to force abortion on unwilling nations and cultures. Instead, he couched his action in terms of its potential economic impact and his desire to end the “culture war” over abortion, stating:
It is right for us to rescind this policy and restore critical efforts to protect and empower women and promote global economic development. For too long, international family planning assistance has been used as a political wedge issue, the subject of a back and forth debate that has served only to divide us. I have no desire to continue this stale and fruitless debate.
This statement is eerily reminiscent of then-Presidential candidate Obama’s speech to the Planned Parenthood Action Fund in July 2007, when he told cheering abortion supporters he remains “absolutely convinced that culture wars are so nineties,” and it is “time to turn the page” since he and other abortion supporters are “tired about arguing about the same ole’ stuff.”
Not coincidentally, in this same speech he also promised “[o]n this fundamental issue [abortion], I will not yield,” and the “first thing” he would do as President was “sign the ‘Freedom of Choice Act’.”
Presidents also often use Executive Orders to appoint or create various groups to advise them on certain policy decisions. In this vein, on March 11, 2009, President Obama established a new “White House Council on Women and Girls” to “provide a coordinated federal response to the challenges confronted by women and girls and to ensure that all Cabinet and Cabinet-level agencies consider how their policies and programs impact women and families.” Among its priorities is to “improve women’s health care.” Given that the Council’s Executive Director is Tina Tchen, former vice-president of the pro-abortion National Organization for Women (NOW), it is safe to assume that the Council’s vision of women’s healthcare will undoubtedly include unfettered access to abortion-on-demand.
The President has the responsibility to make a wide range of executive appointments, including Cabinet members, ambassadors, and other Executive Branch officials. These individuals are charged with implementing the President’s policies on a variety of topics, including abortion and important civil rights such as healthcare freedom of conscience.
Among the appointed positions with a direct impact on abortion-related policies are the Secretary of U.S. Department of Health and Human Services (HHS), the Commissioner of the federal Food and Drug Administration (FDA), and the U.S. Surgeon General.
On March 1, 2009, President Obama nominated pro-abortion Kansas Governor Kathleen Sebilius to serve as Secretary of HHS. Confirmed on April 28, 2009, she is now in a position to profoundly influence American healthcare—including federal and state policies regarding abortion, healthcare rights of conscience, bioethics and biotechnologies, and end-of-life issues.
As HHS Secretary, Sebelius will make important policy determinations including:
- Whether to rescind, modify, or retain HHS rules requiring recipients of HHS funding to certify their compliance with existing federal laws protecting healthcare freedom of conscience. In March 2009, HHS announced its intent to rescind these protective rules and requested public comment on the rules and their implications.
- Whether to rescind approval for or, at a minimum, review the safety and efficacy of RU-486 (“the abortion pill”), which has killed at least 7 women in the U.S. since it was approved by the FDA in September 2000.
- Whether to actively promote further federal funding of abortion-on-demand and contraceptives (including Plan B) as a component of “healthcare reform.”
Sadly, Secretary Sebelius’s extensive public record demonstrates she is an ardent supporter of abortion-on-demand and gives strong indications that she will continue to implement and follow strongly pro-abortion policies during her tenure as HHS Secretary.
In the 1980s and 1990s then-State Representative Sebelius voted to weaken or eliminate even such modest abortion-related measures as parental notification, reflection periods, and informed consent— under U.S. Supreme Court jurisprudence, these are all constitutional measures.
However, her record as Governor of Kansas was—in substantial part—even more extreme in its support for abortion. She routinely opposed or vetoed abortion-accountability bills, including medically-supported clinic regulation legislation which she vetoed in both 2003 and 2005. The need for this critical legislation was predicated, in large part, on evidence of shocking conditions in Kansas abortion clinics. For example, two inspections of the same Topeka abortion clinic discovered fetal remains stored in the same refrigerator as food; a dead rodent in the clinic hallway; overflowing, uncovered disposal bins containing medical waste; unlabeled, pre-drawn syringes with controlled substances in an unlocked refrigerator; improperly labeled and expired medicines; a carpeted floor in a surgical procedure room; and visible dirt and general disarray throughout the clinic. Dr. Krishna Rajanna, who operated the unsafe and unsanitary clinic, also consistently violated practice guidelines for conscious sedation.
In 2008, she vetoed a measure that would have strengthened the state’s existing parental notification law by 1) requiring any adult accompanying a minor show identification, declare in writing his/her relationship to the minor, and identify the putative father of the unborn child; 2) requiring the minor to show some form of photo identification proving identity and place of residence; and 3) if the minor chooses to seek a judicial waiver of the law’s requirements, prohibiting any employee of an abortion provider or clinic from assisting her with the requisite court filings and proceedings.
More shocking is her continuing and unyielding support for late-term abortions, including post-viability abortions. Between 2006 and 2009, she vetoed measures:
- Requiring explicit and medically-supported reasons for late-term abortions;
- Requiring abortion providers to report the diagnosis or the nature of the condition which necessitated a post-viability abortion;
- Permitting injunctive relief for either a completed or about-to-be-performed illegal late-term abortion; and
- Adding certain prosecutors (in addition to the Attorney General) to investigate and pursue violations of existing restrictions on late-term abortions.
As Governor of Kansas, Secretary Sebelius also appointed radical abortion supporters to important state positions. For example, she appointed a former abortion clinic “escort” John Carmichael to the state Human Rights Commission; however, his name was quietly withdrawn ten months later in May 2008.
She further appointed political supporter and abortionist Howard Ellis to serve on the Kansas State Board of Healing Arts after he surrendered his medical license in Missouri rather than face disciplinary charges. Ellis resigned under pressure, and two months later he was charged by the Board with attempting to persuade a physician to falsify records.
Unfortunately, Secretary Sebelius is not the only abortion-supporter that President Obama has appointed to an important healthcare policy position within his Administration.
On March 14, 2009, President Obama nominated former New York City health commissioner, Dr. Margaret Hamburg, to head the federal Food and Drug Administration (FDA). The FDA is “responsible for protecting the public health by assuring the safety, efficacy, and security of human and veterinary drugs, biological products, medical devices, our nation’s food supply, cosmetics, and products that emit radiation.” It “is also responsible for advancing the public health by helping to speed innovations that make medicines and foods more effective, safer, and more affordable; and helping the public get the accurate, science-based information they need to use medicines and foods to improve their health.”
In direct contradiction of these mandates, one of Dr. Hamburg’s first decisions as FDA Commissioner was to forego an appeal of an adverse decision in Tummino v. Torti, a case in which a federal judge ruled that the FDA must make Plan B (or so-called “emergency contraception”) available over-the-counter to girls under the age of 18, despite a utter lack of evidence showing that the drug is safe for use by minors.
Moreover, in the current Administration, even the Secretary of State is expected to use her office to promote abortion-on-demand. In the face of increasing threats to U.S. security, Secretary of State Hillary Clinton has inexplicably promised that promoting “reproductive rights” (i.e., abortion-on-demand) will be at the top of the Administration’s international agenda. On March 30, 2009, Secretary Clinton received Planned Parenthood’s Margaret Sanger Award, named for the organization’s founder, an avowed proponent of race-based eugenics. In her acceptance speech, Secretary Clinton stated, “reproductive rights . . . will be a key to the foreign policy of the United States” during the Obama Administration and that she was proud President Obama had already repealed the Mexico City Policy. She also opined that Planned Parenthood is “one of the great exports that America has” and she looks forward to partnering with Planned Parenthood in effectuating President Obama’s foreign policy.
Under President Obama and Secretary Clinton, prominent abortion advocates have been appointed to critical State Department positions. For example, on March 6, 2009, President Obama and Secretary Clinton announced that Melanie Verveer would act as “Ambassador at large for global women’s issues.” Verveer is the co-founder of Vital Voices, a pro-abortion international women’s organization.
Further, Harold Koh, the President’s Legal Advisor to the State Department, has long advocated the ratification of the U.N. Convention on the Elimination of Discrimination against Women (CEDAW), an international convention that has been used to force unwilling nations – principally in the developing world – to sanction or embrace abortion-on-demand or face international sanctions or other negative consequences. Notably, Koh, a former Dean of Yale Law School, is also considered by many as a possible future U.S. Supreme Court nominee.
Department of Justice Appointments
The U.S. Department of Justice (DOJ) is charged with enforcing federal law and ensuring the fair and impartial administration of justice for all Americans. To effectuate these important tasks, the President appoints the U.S. Attorney General and other senior officials at DOJ, including the Solicitor General and the head of the DOJ’s Office of Legal Counsel.
Importantly, the Solicitor General conducts all litigation on behalf of the United States before the U.S. Supreme Court (USSC) and supervises other federal appellate court litigation directly implicating the interests of the Administration and the American people. In doing so, the Solicitor General routinely files briefs and presents oral argument in important cases before the USSC, including those involving the constitutionality of abortion-related restrictions and regulations. Thus, the Solicitor General is in a unique position to support or oppose such restrictions and regulations and to influence the way the USSC views such laws.
Prior to his inauguration, on January 5, 2009, then-President-elect Obama nominated Elena Kagan, then-Dean of Harvard Law School, to serve as Solicitor General. She was confirmed by the Senate on March 19, 2009. Ironically, Solicitor General Kagan, by her own admission, has very little litigation experience, but she is a strong abortion rights advocate who, for example, supports the use of taxpayer funding to pay for abortions.
Later, on March 11, 2009, President Obama nominated David Ogden as Deputy Attorney General, essentially Solicitor General’s Kagan’s second-in-command. Notably, in 1992, Ogden filed an amicus brief on behalf of the American Psychological Association in the landmark abortion case Planned Parenthood v. Casey which was dismissive of abortion’s damaging effects on the psychiatric health of women.
However, President Obama’s selection to head the Office of Legal Counsel (OLC) is even more troubling. According to DOJ’s website, the OLC:
[P]rovides authoritative legal advice to the President and all the Executive Branch agencies. The Office drafts legal opinions of the Attorney General and also provides its own written opinions and oral advice in response to requests from the Counsel to the President, the various agencies of the Executive Branch, and offices within the Department . . . The Office also is responsible for providing legal advice to the Executive Branch on all constitutional questions and reviewing pending legislation for constitutionality.
Given their sweeping and critical responsibilities, the head and staff of OLC are supposed to be apolitical and academically disciplined.
President Obama has nominated Dawn Johnsen, a professor of constitutional law from the Maurer School of Law at Indiana University, to serve as the head of OLC. Prior to her academic career, Johnsen served as a staff counsel fellow with the American Civil Liberties Union (ACLU) and then for five years with the National Abortion Rights Action League (NARAL).
In 1989, as the legal director of NARAL, Johnsen filed an amicus brief in the USSC case, Webster v. Reproductive Health Services, a constitutional challenge to a Missouri law that restricted the use of state taxpayer funds and other state resources for abortions.
In her brief, Johnsen argued that any restrictions making abortion less accessible are tantamount to “involuntary servitude” because they require “a woman to provide continuous physical service to the fetus in order to further the state’s asserted interest [in the life of the unborn.]” She continued that, in effect, a woman “is constantly aware for nine months that her body is not her own: the state has conscripted her body for its own ends.” Such “forced pregnancy,” she contended, reduces women to “fetal containers” and violates the Thirteenth Amendment prohibiting slavery. Fortunately, the USSC gave no credence to these radical and ridiculous arguments.
In 2005, then-Senator Hillary Clinton (D-NY), an avowed abortion supporter, gave a speech calling for policy changes so abortion “[did] not ever have to be exercised or only in very rare circumstances.” In response, Johnsen alleged that Senator Clinton had taken a “step in the wrong direction” by arguing for such policies. Instead, Johnsen believes “[p]rogressives must not portray all abortions as tragedies.”
Further, despite USSC decisions upholding the constitutionality of informed consent laws with 24-hour reflection periods, parental involvement laws, and bans on partial-birth abortion, Johnsen opposes them and continues to argue they are not constitutionally permissible. For example, in a 2006 op-ed opposing Justice Samuel Alito’s confirmation, she argued that opposition to all restrictions on abortion—not just acceptance of Roe v. Wade—should be a litmus test for judicial nominees. To Johnson, “[t]he notion of legal restrictions as some kind of reasonable ‘compromise’—perhaps to help make abortion ‘safe, legal, and rare’… proves nonsensical.”
Critically, Solicitor General Kagan and Johnsen – if ultimately confirmed by the Senate – will be in positions to argue against the constitutionality of laws regulating or restricting abortion—including those laws the USSC has previously determined to be constitutional and which are supported by a majority of Americans—and to negatively influence the actions and positions of the White House and other Executive Branch departments.
The President has a unique opportunity to influence a variety of legal and policy debates and decisions through his judicial appointments. He appoints all federal district court and appellate judges, including USSC justices. By virtue of the lifetime tenure of federal judges, the President can exert this influence long after he leaves office.
For this reason and others, a candidate’s judicial philosophy is typically of significant interest during a Presidential campaign. During his campaign, President Obama publicly stated he would appoint USSC justices in the mold of Justices Ruth Bader Ginsburg and David Souter, two of the Court’s most ardent abortion rights supporters who, for example, voted to strike down the federal ban on partial-birth abortion. President Obama further opined he finds himself compelled “to side with Justice Breyer’s view of the Constitution—that it is not a static but rather a living document, and must be read in the context of an ever-changing world.”
True to his expressed intent to appoint pro-abortion judges who will interpret the American Constitution in light of ever-evolving circumstances and principles rather than the original intent of the Framers, President Obama used his first judicial appointment to select a radically pro-abortion judge for the U.S. Court of Appeals for the 7th Circuit. On March 17, 2009, the President nominated David Hamilton, a federal district court judge from Indiana, as well as a former Vice President for Litigation and board member of the Indiana branch of the ACLU and a former fundraiser for Association for Community Organizations for Reform Now (ACORN). Hamilton was first appointed to the federal bench by President Bill Clinton in 1994 even though the American Bar Association (ABA) had given him a “not qualified” rating.
As a federal judge, Hamilton issued multiple rulings over seven years preventing Indiana’s informed consent law—a law that fully complied with the USSC’s requirements for such laws (as set out in the 1992 Planned Parenthood v. Casey decision)—from going into effect. The Seventh Circuit—the same court to which he is nominated—later reversed him, stating “[n]o court anywhere in the country (other than one district judge in Indiana [i.e., Hamilton]) has held any similar law invalid in the years since Casey.”
In response to Hamilton’s nomination, the New York Times opined that Hamilton’s nomination was meant to send a signal as to the types of judges President Obama would appoint. Thus, it is clear President Obama will appoint hard-core abortion proponents—judges who will read the spirit and intent of FOCA into the U.S. Constitution and invalidate medically-supported and common-sense regulations or restrictions on the abortion license—to the federal bench and to the US Supreme Court.
President Obama’s first nomination to the Supreme Court validates this fear. Judge Sonia Sotomayor’s record on abortion strongly suggests that she will be even more extreme on the issue than Justice David Souter, who she has been nominated to replace. For example, while Judge Sotomayor was on the board of the Puerto Rican Legal Defense and Education Fund (PRLDEF), it filed amicus briefs with the Supreme Court
- That, in essence, called upon the Supreme Court to read the “Freedom of Choice Act” (FOCA) into the Constitution, protecting abortion as a fundamental right and applying the most stringent level of judicial review – known as “strict scrutiny” — to strike down common-sense abortion regulations and restrictions supported by the vast majority of Americans such as informed consent, parental involvement, and bans on partial-birth abortions.
- That urged the Supreme Court to strike down a Missouri law requiring viability testing before certain abortions — calling such testing “useless and expensive.”
- That declared that it “oppose[d] any efforts to . . . in any way restrict the rights recognized in Roe v. Wade;” compared abortion to the specifically-enumerated, First Amendment right to free speech, and argued that any “burden” on the right to abortion was unconstitutional.
- That characterized informed consent requirements as “intrusive,” “distorted,” and “designed to frighten women from obtaining abortions.”
- That argued that all “medically necessary” abortions (essentially, code words for abortion-on-demand) must be publicly funded and that failure to do so was “discriminat[ory]” and a violation of constitutional equal protection guarantees.
President Obama has also appointed advisors who can be expected to ensure radical choices for the judiciary. For example, on March 12, 2009, President Obama nominated Ronald Weich as Assistant Attorney General for the Office of Legislative Affairs. This position is responsible for advising the President on the selection and successful nomination of federal judges. During the Bush Administration, testifying before Congress about the “Unborn Victims of Violence Act,” which passed Congress with large bipartisan majorities, Weich said that the Act was “just one more step in the anti-abortion movement’s methodical strategy to humanize fetuses, marginalize women, demonize abortion providers, and make the image of abortion less palatable to the American people.”
Federal Spending and Other Budgetary Measures
A deep economic recession, burgeoning federal deficits, and budget cutbacks in critical areas such as national defense are not dissuading abortion advocates from demanding increased taxpayer funding for their radical abortion-on-demand agenda. Unfortunately, Congress and the Administration are more than happy to comply.
On March 11, 2009, President Obama signed the fiscal 2009 Omnibus spending measure. This $410 billion measure needed to keep the federal government functioning through September 2009 also included significant distributions of U.S. taxpayer dollars to international family planning programs—programs that often promote abortion and sterilization as effective and acceptable means of family planning.
First, the measure allocated $50 million to the United Nations Population Fund (UNFPA) for its work in more than 150 countries around the world. The UNFPA’s stated mission is to promote the right of every woman, man, and child to enjoy a life of health and equal opportunity. UNFPA claims to support countries in “using population data for policies and programs to reduce poverty and to ensure that every pregnancy is wanted, every birth is safe, every young person is free of HIV/AIDS, and every girl and woman is treated with dignity and respect.” However, UNFPA is on record arguing that abortion is an appropriate solution to child poverty and has also been complicit in brutal population control programs in China, North Korea, and elsewhere that include forced abortions, forced sterilizations, and other human rights abuses.
Further, the spending measure provided $545 million for a variety of bilateral and multilateral family planning and “reproductive health” [i.e., abortion-promoting] programs worldwide. This allocation is $82 million over 2008 funding levels and a 66 percent increase over the budget request made by the outgoing Bush Administration.
Not surprisingly, officials from the United Nations and other international family planning groups welcomed the new Administration’s support. For example, Tod Preston, Vice President for U.S. Government Affairs at Population Action International, an American-based group supporting population control efforts, enthused that the new Administration’s actions “represent[ed] the last vestiges of a failed effort by the previous administration to decimate U.S. family planning and reproductive health programs.”
During the Congressional debate over this measure, the Senate rejected (by a vote of 38 to 55) Senator Roger Wicker’s (R-MS) attempt to protect US taxpayers from funding coercive abortions through UNFPA. The Wicker Amendment would have restored the Kemp-Kasten Amendment, which has been in place since 1985 and which denies federal funding to organizations or programs the President determines support or participate in a program of coercive abortion or involuntary sterilization.
Action on Budgetary Riders
The repeal of established provisions and policies prohibiting or limiting federal funding of abortion is a top priority of pro-abortion groups like Planned Parenthood. Often called “pro-life riders,” abortion advocates want Congress to eliminate these provisions and policies and quickly authorize the use of taxpayer dollars to pay for abortion-on-demand.
Appropriations provisions or riders prohibiting or limiting the use of taxpayer funding for abortion and contraception are already under attack and many remain vulnerable. Importantly, these riders are not permanent law and must be regularly renewed by Congress to remain in effect.
Congress has already rendered the Kemp-Kasten Amendment, prohibiting U.S. taxpayer funding of programs that include coercive abortions, impotent (by the passage of the fiscal 2009 Omnibus spending measure). Later, in June 2009, Congress began debating the Obama Administration’s proposal to use taxpayer funding to pay for abortions in the District of Columbia, invalidating the long-standing Dornan Amendment that prohibit such practices. Clearly, negative action on additional riders like the Hyde Amendment, the Hyde-Weldon Amendment, and others is not far behind.
The Hyde Amendment, first enacted in 1976, prohibits Medicaid and any other federal program from funding abortions except in cases of rape or incest, or to save the mother’s life. Meanwhile, the Hyde-Weldon Amendment, first enacted in 2004, protects the freedom of conscience of healthcare providers by prohibiting programs that receive federal funds from discriminating against healthcare providers who refuse to provide, pay for, provide coverage for, or refer for abortions. Notably, both of these important riders have survived multiple court challenges and been deemed constitutional. However, pro-abortion groups are actively lobbying for their repeal and, unfortunately, Congress and the White House are likely to comply.
Members of the 111th Congress have already introduced at least 14 measures relating to abortion and family planning services. Nine of these measures are demonstrably pro-life, while five would provide expanded funding for “comprehensive family planning services” (including abortion) and are likely to result in an increased taxpayer-provided income stream for groups like Planned Parenthood.
Interestingly, the White House, Congressional leaders, and the media are expressing the most positive interest and attention to measures that would increase taxpayer funding of groups like Planned Parenthood. The most notable of these measures is the “Prevention First Act” (S. 22 and H.R. 463) sponsored by Senate Majority Harry Reid and nearly 150 other members of Congress and championed by Planned Parenthood. The “Prevention First Act” has several key components:
- Making Title X of the “Health and Human Services Act” a permanent program and providing it with at least $700 million in taxpayer funding each year. Since its inception in 1970, Title X has been a major funding source for Planned Parenthood. However, like many pro-life appropriations riders, Title X is not currently a permanent program and must be reauthorized every year. Under the “Prevention First Act,” Planned Parenthood stands to more than double the taxpayer funding it currently receives under Title X.
- Mandating health insurance plans covering prescription drugs also cover contraceptives. There are no exemptions for religious employers or others with conscientious objections to contraception.
- Creating an educational program to promote “emergency contraception.” Notably, Planned Parenthood and its affiliates are major distributors of “emergency contraception,” often selling it at a significant mark-up.
- Removing federal funding from hospitals that fail to provide “emergency contraception” to sexual assault victims. Again, there are no exemptions for Catholic or other religiously-affiliated hospitals.
Efforts to Reform the Healthcare System
President Obama has consistently maintained that a complete overhaul of the nation’s healthcare system is one of his top priorities. He has already taken steps to bring about his expansive vision of universal healthcare coverage, including comprehensive abortion and family planning services funded by taxpayer dollars.
On March 5, 2009, President Obama hosted the White House Health Care Summit, purporting to bring together 150 healthcare leaders, including key members of his Cabinet, White House staffers, members of Congress, and others to discuss how to reform the nation’s healthcare system. Among those invited to participate was Cecile Richards, President of Planned Parenthood, along with other abortion supporters. Notably, the President asked no pro-life healthcare group to participate.
During the Summit, Richards opined that healthcare reform must ensure women have “access to comprehensive family planning and reproductive healthcare”—more code words for unrestricted and unregulated abortion-on-demand. She also promoted universal healthcare including abortion services funded by taxpayer dollars. Notably, this was not Richards’ first opportunity to expound on her vision of comprehensive, taxpayer-funded “reproductive healthcare.” In August 2008, she addressed the Platform Committee of Democratic National Committee, then-chaired by Janet Napolitano, now a member of President Obama’s Cabinet.
Interestingly, as the debate over healthcare reform has begun in earnest, pro-abortion groups like Planned Parenthood and NARAL Pro-Choice America have become alarmed over any suggestion that government healthcare programs might not include expansive and generous coverage for “reproductive healthcare” including unfettered abortion-on-demand and have aggressively urged their supporters to contact Congress demanding such coverage.
Potential Ratification of International Conventions & Treaties
The U.S. Constitution gives the Senate power to ratify international treaties and conventions and make them binding on American law and citizens. They may ratify treaties and conventions with or without “reservations”: unilateral statements purporting to exclude or modify the legal obligations of the treaty or convention and its effects on the reserving nation or government.
In recent years, a variety of international conventions—many of them originating with the United Nations—have been developed and have as their stated or implied purpose the expansion of abortion rights and the repeal of laws regulating or limiting abortion. To date, the U.S. has not ratified any of these conventions, but Americans cannot underestimate the negative impact of potential ratification.
In February 2009, Senator Barbara Boxer (D-CA)—a vocal supporter of abortion-on-demand—promised to call on Secretary of State Hillary Clinton and the U.S. State Department to complete their review of the U.N. Convention on the Rights of the Child (UNCRC) and transmit it to the Senate for immediate ratification.
If ratified, this international convention could severely undermine parents and their inherent right and responsibility to care for and raise their children without unneeded governmental oversight and interference. It would also directly undermine U.S. sovereignty and the enforceability of American laws, subjecting U.S. citizens and American laws to the administrative oversight—and even veto power—of the United Nations and its unelected bureaucrats.
A fundamental presumption of UNCRC is that parental responsibility exists only insofar as parents are willing to further the independent choices of their children. To advance the convention’s purposes—seeking to make children (even young children) autonomous from their parents and arguably supplanting parents with the State—the convention grants to children a list of inviolable and radical rights including “the right to privacy,” “the right to freedom of thought and association,” and “the right to freedom of expression.”
Specifically, the Convention’s right to privacy provisions could be used to undermine and eliminate laws mandating parental involvement in a minor daughter’s abortion decision. Article 16 of the convention purports to invest a minor with an absolute right to privacy, which, in light of the U.N.’s historic support for unfettered abortion-on-demand, would necessarily permit a minor to obtain an abortion without the benefit of parental involvement and even without her parents ever knowing about the abortion. Article 19 of the Convention permits the “identification, reporting, referral, investigation, treatment, and follow-up” of those—including parents—who interfere with a child’s fundamental rights, including the right to privacy.
UNCRC is not the only international convention yet to be ratified by the Senate that embodies the spirit of FOCA and implements key components of its radical abortion-on-demand agenda. Abortion advocates and their allies have long agitated for the ratification of the U.N. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
CEDAW was signed by President Jimmy Carter in 1980, but it has never been ratified by the Senate. Notably, while the word “abortion” does not appear in the actual text, Article 12 of CEDAW asserts that ratifying nations “shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning.” Many official bodies—both inside and outside the U.N.—interpret this Article and other related provisions to condemn all limitations or restrictions on abortion as per se discrimination against women.
In practice, U.N committees and bureaucrats have consistently used CEDAW as the basis for criticizing member nations and pressuring them to weaken or repeal laws restricting abortion, to provide public funding of abortion, and to even eliminate laws protecting the conscience rights of healthcare providers who decline to participate in abortions.
Not surprisingly, support for CEDAW is strong and widespread among abortion advocates. For example, the Center for Reproductive Rights (CRR), a New York-based group dedicated to using “the law to advance reproductive freedom as a fundamental human right that all governments are legally obligated to protect, respect, and fulfill,” has consistently called for the ratification of CEDAW with “no reservations” so that its spirit and intent could be fully implemented in the U.S. Notably, CRR actively opposes any limits or restrictions on abortion and regularly files federal and state lawsuits seeking to derail laws regulating abortion.
Moreover, CRR and other abortion advocates routinely argue that CEDAW cements abortion as a fundamental human right and mandates unfettered abortion-on-demand in the U.S. and elsewhere. For example, in their 2001 lawsuit in federal district court seeking to strike down the Mexico City Policy, CRR cited U.N. conventions and customary international law as support for the bold assertion that “abortion is the law of the world.”
Clearly, with abortion supporters currently in control of the Senate, the ratification of UNCRC, CEDAW, and international conventions promoting abortion-on-demand is a distinct and troubling possibility—one that would effectively usher in an era of unregulated and unrestricted abortion in America and invalidate any federal or state limitation on or common-sense regulation of abortion.
Recently, Rep. Jerrold Nadler (D-NY), a chief Congressional proponent of FOCA, promised that FOCA would be introduced in the 111th Congress “sooner rather than later,” but he did not elaborate on specific plans for its introduction and debate. However, it is clear from the actions of the Obama Administration, Congress, and their pro-abortion allies that a campaign to implement FOCA-by-Stealth is already well underway. If we are to effectively counter this radical agenda, we must remain vigilant and continue to speak out against any legislation, policy, or action by the Administration or Congress that furthers the spirit of FOCA and its radical vision of an America (and a world) of unrestricted, unregulated, unapologetic, and taxpayer-funded abortion-on-demand.
The Administration, Congress, and abortion advocates are counting on the economy and other pressing issues to divert the attention of the American people so they can surreptitiously and with little resistance advance their radical pro-abortion agenda. We cannot afford them success. Future generations are literally counting on us to remain motivated and vigilant against this discretely and stealthily advancing culture of death.