By J. Margaret Datiles
AUL Staff Counsel
With the closing of the 2008 Presidential Elections, we find ourselves struggling to determine whether President-elect Barack Obama will hold fast to the principles and values we hold dear. One important question the must be answered in order to make this determination is, “How important is Obama’s views on abortion and other life issues?” How important is it for the pro-life cause to have a pro-life President? What impact does the President of the United States have on the pro-life agenda? Does it really matter what the President’s position on life issues is? The answer is simple: Yes, it does matter. The President of the United States plays a crucial role in advancing the pro-life cause in America, and an election of a pro-life President will guarantee a political environment that is supportive of pro-life legislation and policies.
This essay discusses the President’s impact on the pro-life cause through the his or her role in (1) the appointment of Supreme Court Justices, federal judges, the U.S. Attorney General, and other government officials; (2) the enactment of pro-life legislation passed by Congress; (3) the preservation of existing pro-life policies; (4) the issuance of executive orders that protect human life; (5) the prevention of the passage of policies that would endanger human life or remove an existing pro-life policy; and (6) the promotion of a culture of life through public speeches and proclamations.
Appointments to the United States Supreme Court: For the Pro-Life Cause, Every Vote Matters
One of the most obvious ways the President of the United States influences the cause for life in America is through the appointment of United States Supreme Court (USSC) justices. At this time, the USSC justices play the lead role in dictating American abortion jurisprudence. The USSC decisions in Roe v. Wade1 and Doe v. Bolton2 in 1973 forever changed abortion law in America. Those decisions established a federal constitutional right to abortion, invalidated the abortion laws of all 50 states and, as AUL President Clarke Forsythe once put it, crowned the USSC “the national abortion control board.“3 The USSC decisions in Roe and Doe took away the power of individual states to enact abortion laws according to their own independent standards and, since 1973, the edicts of the USSC have governed the content and scope of all state abortion laws. If a state wishes to pass an abortion regulation that will be upheld in court, it must follow the requirements and standards dictated by the USSC.
The varying effects and changing legal standards set forth by the string of Supreme Court abortion decisions since Roe demonstrate that abortion jurisprudence in the U.S. is continually in flux and wholly contingent upon the dictates of the USSC.
The landmark abortion cases after Roe which now govern American abortion jurisprudence — Planned Parenthood v. Casey4, Stenberg v. Carhart5, and Gonzales v. Carhart6 — were all decided by 5-4 votes. This fact manifests the importance of a single Supreme Court justice’s vote — one vote, one justice, makes all the difference. One justice could change the legal standard of review for abortion laws in all 50 states. One justice could expand the maternal health exception, or narrow it. One justice could overturn Roe v. Wade and Doe v. Bolton, or reaffirm them. One vote could change it all, for better or for worse.
The overturning of Roe v. Wade, as well as any USSC decision that would further narrow the maternal health exception and enable the states to pass more common-sense abortion regulations, would be great victories for the pro-life cause. As the decisions of the USSC are often decided by a single vote, it is necessary for the advancement of the pro-life cause that there be a pro-life majority in the Supreme Court. Attaining and maintaining such a majority is, of course, dependent upon who the President appoints to the Court.
When appointing a USSC justice, the President is sure to ask, among other things, will a judicial candidate will interpret the law or create it? Will the candidate properly defer to the legislature? Will the candidate give adequate weight to the state’s interest in developing human life when making decisions? Will the candidate consider or brush aside authoritative medical evidence and credible testimony presented by pro-life medical experts? A pro-life President will most likely make more efforts than a pro-abortion President to appoint Supreme Court justices who will interpret abortion law rather than create it, give the legislature proper deference, and afford adequate weight to the state’s interest in developing human life. It is clear that the next President’s position on abortion and life issues will have significant and lasting effects on future USSC abortion decisions and the consequent abortion legal standards.
Appointment of Federal Judges
Before an abortion or life-related case ever reaches the USSC, it often has to pass through the lower federal district and appellate courts. Although many people never hear about an abortion or life-related case until it reaches the USSC, it is important to realize that such cases are constantly and continuously passing though the federal district and appellate courts. Overturning or upholding abortion and life-related laws more often rests in the hands of lower court federal judges rather than in the hands of USSC justices. It is also up to these judges to interpret abortion and other life-related laws arising within their jurisdictions. The decisions of federal judges in these cases also establish important case precedent, which serves as guidelines for future court decisions (both within their jurisdiction and elsewhere). Thus, the success of the pro-life movement depends greatly on the careful selection and appointment of federal district and appellate court judges by the President.
Appointment of the Attorney General and the Solicitor General: Defending Pro-Life Laws in Court
The U.S. Attorney General and other members of the Department of Justice are the primary advocates for the federal government, and can play an important role in defending pro-life laws in court. However, the Attorney General can also defend anti-life laws, actively undermine the enforceability of pro-life laws, and issue anti-life directives.
For example, in 1997, President Clinton’s Attorney General Janet Reno declared that state laws which allow physician-assisted suicide, such as the Oregon Death with Dignity Act, do not violate federal law. However, later in 2001, President Bush’s Attorney General John Ashcroft issued a pro-life directive stating that the Oregon physician-assisted suicide law violates the federal Controlled Substances Act.7
In addition to the defense of laws and issuing of directives, Attorneys General and their staff also file amicus curiae briefs in cases involving abortion and life issues. For example, in February 2006, the Solicitor General filed a brief in the USSC on behalf of the Bush Administration, urging the Court to grant review in the challenge to the federal Partial-Birth Abortion Ban Act of 2003, Gonzales v. Carhart. Similarly, in 1991, Chief Justice John Roberts, who was then the principal deputy solicitor general, filed a brief in the USSC in Rust v. Sullivan, supporting federal regulations prohibiting Title X clinics from using federal funds to counsel or refer for abortions. In that brief, he wrote that “Roe v. Wade was wrongly decided and should be overruled,” and that the decision has “no support in the text, structure, or history of the Constitution.”
Appointment of Other Political Positions which Impact the Pro-Life Agenda
The President is responsible for appointing government officials in executive departments that oversee programs and enforce regulations that involve abortion and other life issues. The most obvious example is appointing the Secretary of the Department of Health and Human Services (HHS). HHS is responsible for enforcing health-related federal laws, which include laws involving abortion and biotechnology. It also drafts the annual federal spending bill, which includes several provisions (or “riders”) restricting the use of federal funds for abortion, destructive embryonic stem cell research, and involuntary sterilization, both domestically and abroad. The annual spending bill also appropriates federal funding for abortion-alternative centers. The most significant pro-life riders in the annual HHS appropriations bill include the Hyde Amendment; the Kemp-Kasten Amendment; the Hyde-Weldon Amendment; the Mexico City Policy; and the policies regarding abortions in military healthcare facilities or federal prisons. (See Section II(b)below.)
In addition to drafting the annual federal appropriations bill, HHS is responsible for enforcing the pro-life riders that are enacted. The Secretary also issues statements supporting or opposing health policies involving abortion and other life issues. For example, on May 15, 2002, HHS Secretary Tommy Thompson issued a statement recommending the veto of a human cloning bill. More recently, on March 14, 2008, HHS Secretary Mike Leavitt wrote a letter opposing the new policy of American College of Obstetricians and Gynecologists (ACOG), that would force physicians to violate their conscience by referring patients for abortions, or risk losing their board certification. The HHS Secretary urged the American Board of Obstetrics and Gynecology (ABOG) to reject the new policy and protect the conscience rights of physicians.
In addition to HHS, the President also fills key positions at the Food and Drug Administration (FDA). FDA studies and drug approvals play a vital role in the fight for life. For example, in 2000, under the Clinton Administration, the FDA used an expedited approval process created for the emergency approval of drugs for life-threatening diseases (particularly, AIDS/HIV), to approve the use of RU-486, or mifepristone, an abortifacient drug. The FDA is responsible for enforcing the approved regimen for RU-486, and for conducting follow-up studies to verify the efficacy and safety of the drug. The continuing availability of RU-486 in the American drug market and the availability of authoritative studies on the efficacy and safety of RU-486 depend on whoever the President appoints to the FDA.
The President also appoints U.S. foreign delegates. These delegates play a vital and active role in the fight for life by participating in the adoption or rejection of international life-related policies. For example, the United States was among one of the countries supporting the adoption of the U.N. General Assembly’s declaration banning all forms of human cloning on March 8, 2005. The President’s influence on the pro-life cause extends not only to domestic issues, but abroad.
Enactment of Pro-Life Legislation
Although the reversal of Roe is in the hands of the USSC, the President has the power to sign and enact incremental legislation implicating abortion, biotechnology, and other life issues. For example, President Bush has signed the following pro-life bills into law:
- Born Alive Infant Protection Act, signed August 5, 2002
- Partial Birth Abortion Ban Act, signed November 3, 2003
- Unborn Victims of Violence Act, signed April 1, 2004
- Hyde-Weldon Amendment, signed December 8, 2004
Preservation of Existing Pro-Life Policies
In addition to enacting new pro-life laws, the President is also responsible for preserving or overturning existing pro-life policies. For example, the next President may continue or overturn:
- The Hyde Amendment (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.
- The Dickey-Wicker Amendment (1995): Prohibits the use of public funding for destructive embryonic stem cell research.
- The Kemp-Kasten Amendment (1979): Prohibits the appropriation of federal funding to any program or organization that supports or participates in coerced abortions or involuntary sterilization. Under this Amendment, no federal funds have been given to the United Nations Population Fund (UNFPA) for its support of China’s coercive population control program.
- The Hyde-Weldon Amendment (2004): Protects the rights of conscience of healthcare providers. The Amendment prohibits programs that receive federal funds from discriminating against healthcare providers who refuse to provide, pay for, provide coverage for, or refer for abortions.
- The Mexico City Policy (1984): Prohibits the use of federal funding for organizations and programs “which perform or actively promote abortion as a method of family planning in other nations.”
- Military Abortion Policy (1988): Prohibits military facilities from being used for the performance of abortions, except in cases of incest and rape or to save the life of the mother.
- Federal Prison Abortion Policy (1986): Prohibits the use of federal funds to pay for abortions in federal prisons, except in cases of rape or to save the mother’s life.
- District of Columbia Abortion Policy: Prohibits the use of federal funds for abortions in the District of Columbia.
Utilizing the Presidential Veto in the Fight for Life
In addition to enacting an annual spending bill that contains pro-life “riders,” the President can preserve existing pro-life policies by vetoing efforts that seek to remove existing pro-life policies.
Similarly, the President can also use his veto power to prevent the passage of anti-life legislation passed by Congress. For example, on June 20, 2007, President Bush vetoed efforts to legalize federal funding of destructive embryonic stem cell research. Similarly, in 1992, President George H.W. Bush vetoed an attempt to lift the ban on fetal tissue research.
On the other hand, the President can use his veto power to prevent the passage of life-affirming laws. For example, in 1996 President Clinton vetoed a Partial Birth Abortion Ban Act.
Currently, there are a number of anti-life bills that have been introduced into the legislature. If these bills are passed, the President could prevent their enactment by vetoing the bills. An example of an anti-life bill that has been recently introduced into Congress is Senator Boxer’s Freedom of Choice Act (FOCA).
It is clear that the Presidential veto can be either a powerful tool for the cause of life, or else its deadly enemy.
Issuance of Executive Orders that Protect Life
The President can issue life-affirming executive orders to the various offices of the executive branch. For example, in August 2001 and again in April 2007, President Bush issued an executive order prohibiting the use of federal funds for destructive embryonic stem cell research. He has also issued an order for the formation of the President’s Council on Bioethics to monitor stem cell research and recommend guidelines and regulations regarding legal and ethical issues present in emerging biotechnologies.
Conversely, the President can issue executive orders that endanger human life. On the 20th anniversary of Roe v. Wade (and his 4th day as President), President Clinton issued a series of executive orders overturning a significant number of existing pro-life policies.8 Under the Clinton Administration, millions of American tax dollars were used to fund abortion, abortion referrals, coerced abortions, and involuntary sterilization. President G.W. Bush issued executive orders reinstating these pro-life policies in full.
The use of executive orders by President Clinton to endanger life, and President G.W. Bush’s use of executive orders to protect life further demonstrate how the President can utilize his position to stifle or further the cause for life.
Official Presidential Statements Affirming Life
The President can encourage the passage of pro-life legislation and discourage the passage of pro-abortion legislation through the release of reports and official statements. These documents alert members of Congress as to what bills the President supports and will sign if passed, and what bills the President would veto. Often this information will determine whether or not members of Congress continue pursuing particular bills. If the President is supportive, the members (especially of his own party) will likely continue in their efforts to pass the bill. If the President is not supportive, the members may be discouraged from pushing the bill, since it would end up being vetoed anyway.
During the Bush Administration, the Executive Office of the President has released a multitude of official life-affirming Statements of Administrative Policy on issues such as human cloning, embryonic stem cell research, partial-birth abortion, and born-alive infant protection.
It is clear that the President has an active role in encouraging the passage of pro-life legislation by Congress, and in discouraging efforts to push anti-life legislation.
Public Speeches and Published Statements by the President Promoting a Culture of Life
The White House is the ideal forum for advocating the pro-life cause and promoting a culture of life. Indeed, President Theodore Roosevelt referred to the White House as a “bully pulpit.” President G.W. Bush has made good use of this “bully pulpit,” utilizing it as a means to encourage pro-lifers in America to keep fighting for life.
Throughout his presidency, President G.W. Bush has continually given speeches advocating the pro-life cause. For example, during his State of the Union Address in 2006, Bush declared his opposition to destructive embryonic stem cell research and his support for banning all forms of human cloning. Similarly, during his State of the Union Address in 2003, he urged Congress to pass the Partial Birth Abortion Ban Act.
More recently, on April 18, 2007, President Bush released a statement applauding the USSC decision in Gonzales v. Carhart, stating: “The Supreme Court’s decision is an affirmation of the progress we have made over the past six years in protecting human dignity and upholding the sanctity of life. We will continue to work for the day when every child is welcomed in life and protected in law.” On January 18, 2008, Bush issued a proclamation declaring January 20, 2008 “National Sanctity of Human Life Day,” to encourage Americans to celebrate and contemplate the sanctity of life at all stages, even in the womb.
The President of the United States is in a unique position to advocate for the pro-life cause, and to remind politicians and citizens of the intrinsic and insurmountable value of human life.
A President’s views on abortion and life issues do matter. The President of the United States has a profound impact on the advancement of the pro-life cause in America and abroad.
- 410 U.S. 113 (1973).
- 410 U.S. 179 (1973).
- Clarke D. Forsythe. “Who Will Fix the Supreme Court’s Mess? A history of the United States Supreme Court abortion decisions and how they have shaped abortion law,” in Defending Life 2008: Proven Strategies for a Pro-Life America, available at http://aul.org/Defending_Life?p=152 (last accessed March 24, 2008).
- 505 U.S. 833 (1992). According to Roe, a state could regulate, and even prohibit, abortion after viability, “except where it is necessary, in the appropriate medical judgment, for the preservation of the life and health of the mother.” The USSC defined “health” in Doe as “all factors – physical, emotional, psychological, familial, and the woman’s age – relevant to the well-being of the patient.” By a close 5-4 vote in Planned Parenthood v. Casey, these holdings were essentially reaffirmed.
- 530 U.S. 914 (2000). By another 5-4 vote in Stenberg v. Carhart, the USSC not only reaffirmed Roe, but expanded the maternal health exception. The Court mandated that every state abortion regulation must contain a maternal health exception, and that exception is to be interpreted broadly.
- 127 S.Ct. 1610 (2007). Most recently, in Gonzales v. Carhart, the USSC made a 5-4 decision to change the standard for abortion laws once again, this time narrowing the maternal health exception and effectively overruling the Stenberg decision. In Gonzales, the Court replaced Stenberg’s strict standard with Casey’s more reasonable “undue burden” or “significant health risk” standard.
- In 2004 the U.S. Court of Appeals for the Ninth Circuit overturned Ashcroft’s directive and upheld the Oregon law. Judge Tallman, who wrote the majority decision, was appointed by President Clinton. When the issue reached the USSC in 2005, President Bush’s Solicitor General Paul Clement argued that the Ninth Circuit’s ruling should be overturned. Ultimately, the Oregon physician-assisted suicide law was upheld by the USSC. The history of Oregon’s Death with Dignity Act displays the active role of the President-appointed members of the Department of Justice.
- These policies included the Hyde Amendment, the Mexico City Policy, the military’s abortion policy, the federal prisons’ abortion policy, and the ban on fetal tissue research (most of the fetal tissue used came from abortions). Further, he did not deny UNFPA federal funds to support China’s coercive family planning /one-child policy.
- The Executive Office of the President issued the following Statements of Administrative Policy:
– June 6, 2007: Opposing a bill that would allow funds for human cloning.
– January 11, 2007: Opposing a bill that would allow funds for destructive embryonic stem cell research.
– December 6, 2006: Encouraging Congress to pass the Unborn Child Pain Awareness Act.
– May 24, 2005: Opposing a bill that would allow funds for destructive embryonic stem cell research.
– May 24, 2005: Encouraging Congress to pass a bill on stem cell research involving the use of umbilical cord blood.
– April 27, 2005: Encouraging Congress to pass the Child Interstate Abortion Notification Act.
– February 26, 2003: Encouraging Congress to pass the Weldon-Stupak bill, banning all forms of human cloning.
– June 4, 2003: Encouraging Congress to pass the Partial Birth Abortion Ban Act, and discouraging any amendments to the Act.
– March 12, 2002: Encouraging Congress to pass the Born Alive Infant Protection Act.