Steven H. Aden, J.D. and Jesse Southerland
In the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Org.,[i] the Biden Administration moved quickly to resuscitate the “fundamental right to abortion” the Court created in Roe v. Wade and vigorously hoisted overboard in Dobbs. In a desperate effort to revive a right the Court called “egregiously wrong from the start,” “exceptionally weak,” and fraught with “damaging consequences,”[ii] the President dispatched orders to his cabinet to interpret an ad hoc mélange of federal laws to conjure up federal “protections” wherever they could.[iii]
The Hyde Amendment has prohibited the use of federal taxpayer dollars for elective abortions for almost as long as Roe was in existence, but never mind that inconvenient fact—Biden ordered the Health and Human Services Department (HHS) to “consider” how it could pay to transport women for abortions from pro-life states to pro-abortion states.[iv] Likewise, a recent Department of Defense (DOD) memorandum titled, “Ensuring Access to Reproductive Healthcare,” announced that DOD will start funding abortion tourism for service members, without regard to Hyde restrictions.[v] The administration also found a right to abortion in the non-discrimination provisions of the Affordable Care Act, claiming that failing to provide chemical abortions is a “form of sex discrimination”—ignoring the Supreme Court’s explicit holding in Dobbs that it is not.[vi] Attorney General Merrick Garland was instructed to assemble a task force to safeguard the “right to abortion” in states where it still exists—notwithstanding that expending federal authority and taxpayer funds to promote laws that are strictly a state policy matter should have been a non-starter. The Justice Department also sued Idaho over early gestation abortion limits, claiming that the Emergency Medical Treatment and Labor Act (EMTALA)[vii] mandates that hospital emergency departments provide “emergency” abortions—despite that EMTALA was enacted to ensure emergency care for “women in labor” to deliver children, not those seeking to abort them.[viii] HHS Secretary Xavier Becerra issued a directive to Medicaid-eligible pharmacies—essentially every major pharmacy chain—to mandate that they provide chemical abortion at a patient’s request even where abortion is illegal.[ix] Last week, Becerra announced that HHS was investigating major pharmacy chains, including CVS, Walgreens and others, for their policies “restricting abortion access” in states where abortion is outlawed.[x] And recently, the Department of Veterans Affairs (VA), which runs America’s largest public health system for nine million enrolled veterans, declared that it would provide “health-related” abortions, construed broadly, through VA staff, including doctors working in states where abortion is against the law.[xi]
Now the Justice Department’s Office of Legal Counsel has papered over the VA’s order with a formal opinion that the rule preempts state abortion laws under the “Supremacy Clause”[xii]—a jaw-dropping pronouncement, in view of the fact that medical licensure has always been the province of states, not the federal government, and all the more so since Roe’s demise. Under Biden’s policy, a VA doctor in Louisiana, Mississippi, or any of the more than a dozen states that now outlaw abortion as a homicide could be ordered by his or her employer to facilitate abortion anyway—at the risk of being charged with criminal homicide and laying his or her license, career, and conscientious objections on the line. One doubts that it would be much comfort to this unfortunate doctor that a legion of Justice Department lawyers would show up in defense.
In all likelihood, most, if not the entirety, of this hastily assembled hodgepodge of interpretations and proposed rules will not survive court review. The federal judicial branch exists, in part, to correct overreaches by the executive branch. But the President’s determination to expend prodigious amounts of political capital on defending a now-defunct “right” to abortion merits more than a judicial wrist slap. What’s needed is an about-face course correction that respects the function of the Office of the President, which is to “take care that the laws be faithfully executed,”[xiii] not to shill for a pet political constituency. The HHS rule, the EMTALA suit, the VA order and the rest are all so many fig leaves offered to the Biden Administration’s pro-abortion backers in an effort to cover the Biden Administration’s naked allegiance to an obsolete notion of “abortion rights,” rather than a proper commitment to enforcing the nation’s laws. Notwithstanding the President’s posturing, the truth is that after Roe, and because of Dobbs, there is now no federal right or interest in promoting, providing, or paying for elective abortion. To the contrary, provisions prohibiting federal funding of abortion or the use of federal facilities for it run throughout the warp and woof of the federal statutes and administrative code.[xiv] A plethora of statutes protects women, unborn children, families, and medical professionals from the harms of abortion violence. Congress—which, unlike the Executive Branch, has the authority to “make laws”—has passed a multitude of pro-life laws that articulate a robustly pro-life policy, and the Biden Administration is openly flouting that policy by manufacturing abortion on-demand.
The cornerstone of that policy, the Hyde Amendment, has been a fixture of every federal health and welfare appropriations bill since Congressman Henry Hyde first proposed it in 1976.[xv] The present version of the Hyde Amendment restricts abortion funding except for medical emergencies and cases of rape or incest.[xvi] The Born-Alive Infants Protection Act recognizes that children born alive after attempted abortion are legal persons under federal law and criminalizes leaving them to die without medical care.[xvii] The Partial Birth Abortion Ban Act outlaws the horrific abortion method that induces labor just to kill the child when she is partially born.[xviii] Federal law bars the use of the United States Postal Service or private carriers from mailing abortion-inducing drugs, including the chemical abortion regimen of mifepristone and misoprostol.[xix]
Moreover, over the past half century (as a legislative response to the judicially created rule of Roe), Congress has enacted numerous statutes protecting medical professionals that conscientiously object to taking a human life through abortion, including the Church Amendment,[xx] Coats-Snowe Amendment,[xxi] and Weldon Amendment.[xxii] There are conscience protections throughout federal law, such as in the Danforth Amendment to Title IX’s definition of sex discrimination,[xxiii] amendments regulating managed-care providers in the Medicare and Medicaid programs,[xxiv] and Affordable Care Act provisions regarding insurance.[xxv]
Congress also restricts abortion in other areas. The Dornan Amendment prohibits the District of Columbia from expending public funds for abortion except if the mother’s life is at risk or in cases of rape or incest.[xxvi] Federal programs often include explicit abortion funding prohibitions, such as in Title X, which restricts recipients from using public funds “in programs where abortion is a method of family planning.”[xxvii] The same rules apply to U.S. funds expended overseas.[xxviii]
All told, federal policy is pro-life policy, and the Biden Administration cannot change that. In fact, efforts to engage the HHS and DOJ agencies in “protecting access to abortion” are efforts to put the weight and (taxpayer) resources of the federal government behind a state “right to abortion”—as if it’s any business of the federal government to enable California’s citizens to exercise a “right” created by the State of California. The President has no authority in the area, period.
The future of America—a post-Roe America—is a future full of hope. Roe’s reversal makes it possible for America’s lawmakers to once more affirmatively protect the human right to life and to enshrine law and policy that makes abortion unthinkable. The 118th Congress gives us many opportunities to expand on the enthusiasm of pro-life lawmakers and defend Life. Americans United for Life and our pro-life partners will be working hard to provide critical research, briefings, and legislative language to make sure senators and representatives have the tools they need to counter this administration’s flagrant disregard of the law and hold it accountable.
Footnotes
[i] 142 S. Ct. 2228 (2022).
[ii] 142 S. Ct. at 2243.
[iii] See https://www.beckershospitalreview.com/health-equity/biden-to-take-executive-action-to-protect-abortion-access.html.
[iv] White House, Aug. 3, 2022, “FACT SHEET: President Biden Issues Executive Order at the First Meeting of the Task Force on Reproductive Healthcare Access,” https://www.whitehouse.gov/briefing-room/statements-releases/2022/08/03/fact-sheet-president-biden-issues-executive-order-at-the-first-meeting-of-the-task-force-on-reproductive-healthcare-access-2/.
[v] https://media.defense.gov/2022/Oct/20/2003099747/-1/-1/1/MEMORANDUM-ENSURING-ACCESS-TO-REPRODUCTIVE-HEALTH-CARE.PDF.
[vi] https://www.hhs.gov/about/news/2022/07/13/hhs-issues-guidance-nations-retail-pharmacies-clarifying-their-obligations-ensure-access-comprehensive-reproductive-health-care-services.html; See also, Carolyn McDonnell, “Abortion Is Not Protected Under ‘Sex Discrimination’ in the Affordable Care Act,” https://aul.org/2022/10/06/aul-tells-biden-administration-abortion-is-not-protected-under-sex-discrimination-in-the-affordable-care-act/.
[vii] 42 U.S.C. § 1395dd.
[viii] United States of America v. State of Idaho (D. Idaho No. 1:22-cv-329) (plaintiff’s motion for preliminary injunction granted Aug. 24, 2022). Texas filed a lawsuit challenging the EMTALA abortion mandate. State of Texas v. Becerra (N.D. Tex. No. 5:22-cv-185) (plaintiffs’ motion for a preliminary injunction granted, defendants’ motion to dismiss denied Aug. 23, 2022).
[ix] See https://www.politico.com/news/2022/07/13/biden-pharmacies-contraception-abortion-pill-00045582.
[x] https://www.beckershospitalreview.com/pharmacy/hhs-to-probe-cvs-walgreens-over-post-roe-drug-access.html.
[xi] The Department of Veterans Affairs (VA) published in the federal register an interim final rule (IFR) requiring the to fund abortions “when the life or health of the pregnant veteran would be endangered if the pregnancy were carried to term or when the pregnancy is the result of an act of rape or incest.” VA states that mental health conditions such as post-traumatic stress disorder would be included under this broad “health” exception: “When a health care professional determines that these [chronic medical and mental health conditions] (potentially in combination with other factors) render an abortion needed to preserve the health of a veteran, access to an abortion is essential health care.” The IFR also states, “[a]ssessment of the conditions, injuries, illness, or diseases that will qualify for this care will be made by appropriate health care professionalson a case-by-case basis.” The IFR also lifts the ban on abortion counseling and allows payment for abortion counseling for covered and noncovered abortions. The rule does not indicate any conscience exemptions. Section 106 of the Veterans Health Care Act of 1992 (Pub. L. 102-585, 106 Stat. 4943), which has remained law for 30 years, authorized VA to provide certain health services to women veterans but explicitly excluded abortion. The IFR stands in violation of that law. Federal regulations, 38 CFR 1738(c)(1), previously prohibited VA from offering abortion counseling to veteran patients under the medical benefits package. See also: https://www.wsj.com/articles/veterans-affairs-to-provide-abortion-services-for-health-dangers-rape-and-incest-11662135780; https://www.federalregister.gov/public-inspection/2022-19239/reproductive-health-services and https://www.lankford.senate.gov/news/press-releases/lankford-sounds-the-alarm-on-the-vas-proposed-plan-to-illegally-provide-abortions.
[xii] Office of Legal Counsel, slip op., Sep. 21, 2022: “The rule issued by the Department of Veterans Affairs on Reproductive Health Services is a lawful exercise of VA’s authority. States may not impose criminal or civil liability on VA employees—including doctors, nurses, and administrative staff—who provide or facilitate abortions or related services in a manner authorized by federal law, including VA’s rule. The Supremacy Clause bars state officials from penalizing VA employees for performing their federal functions, whether through criminal prosecution, license revocation proceedings, or civil litigation.”
[xiii] U.S. Const., Article II, Section 3.
[xiv] The word “abortion” appears over a hundred times, and the majority of those instances are exclusions for funding or providing elective abortions. See https://www.ecfr.gov/search?search%5Bdate%5D=current&search%5Bquery%5D=abortion&view=standard. On the other hand, the phrase “unborn child” appears dozens of times in the Code of Federal Regulation. See https://www.ecfr.gov/search?search%5Bdate%5D=current&search%5Bquery%5D=unborn+child&view=standard (search last conducted Oct. 20, 2022).
[xv] See Pub. L. No. 94-439 tit. II, § 209, 90 Stat. 1418, 1434 (1976) (“None of the funds contained in this Act shall be used to perform abortions except where the life of the mother would be endangered if the fetus were carried to term.”).
[xvi] Consolidated Appropriations Act, 2022, Pub. L. No. 117-103, div. H., tit. V, §§ 506–507, 136 Stat. 49, 496 (2022).
[xvii] 1 U.S.C. § 8.
[xviii] 18 U.S.C. § 1531.
[xix] 18 U.S.C. § 1461; 18 U.S.C. § 1462. Each statute imposes a prison sentence of up to five years for a first offense and up to ten years for each additional offense.
[xx] 42 U.S.C. § 300a-7.
[xxi] 42 U.S.C. § 238n.
[xxii] See, e.g., Consolidated Appropriations Act of 2021, Pub. L. No. 116-260, div. H, tit. V § 507(d)(1), 134 Stat. 1182, 1622 (2020). Since 2004, every HHS appropriations bill has readopted the Weldon Amendment. Office for Civil Rights, Conscience Protections for Health Care Providers, U.S. Dep’t of Health & Hum. Servs. (last reviewed Sept. 14, 2021), https://www.hhs.gov/conscience/conscience- protections/index.html.
[xxiii] 20 U.S.C. § 1688.
[xxiv] Lynn D. Wardle, Protection of Health-Care Providers’ Rights of Conscience in American Law: Present, Past, and Future, 9 AVE MARIA L. REV. 1, 31–32 (2010); see 42 U.S.C. § 1395w-22(j)(3)(B) (protecting conscience rights in Medicare program) and 42 U.S.C. § 1396u-2(b)(3)(B) (codifying conscience protections in Medicaid program).
[xxv] 42 U.S.C. § 18023(b)(4) (“No qualified health plan offered through an Exchange may discriminate against any individual health care provider or health care facility because of its unwillingness to provide, pay for, provide coverage of, or refer for abortions.”).
[xxvi] Id. div. G, tit. VIII, § 810, 136 Stat. 309.
[xxvii] 42 U.S.C. § 300a-6.
[xxviii] The Siljander Amendment prohibits the use of funds to lobby for or against abortion. Consolidated Appropriations Act, 2022, Pub. L. No. 117-103, div. K, tit. III, 136 Stat. 49, 576 (2022). The Helms Amendment prohibits the use of foreign assistance to pay for the performance of abortion as a method of family planning or to motivate or coerce any person to practice abortion. 22 U.S.C. § 2151b(f)(1). And the Biden Amendment (1981) provides that foreign assistance funds may not be used for biomedical research related to methods of or the performance of abortion or involuntary sterilization as a means of family planning. 22 U.S.C. § 2151b(f)(3). See generally Congressional Research Service, Abortion and Family Planning-Related Provisions in U.S. Foreign Assistance Law & Policy (updated Jul. 15, 2022), https://sgp.fas.org/crs/row/R41360.pdf.
