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108th Congress the Most Successful
Yet for Pro-Life Movement
By Douglas Johnson
NRLC Federal Legislative Director
WASHINGTON (November 9, 2004) –- The two-year
108th Congress, now near its end, has been the most productive for
legislation supported by National Right to Life since the Supreme Court’s
1973 Roe v. Wade decision.
The regular session of the Congress ended in mid-October, and lawmakers went
home to campaign for the November 2 general election. In mid-November, the
108th Congress will return to Washington for a short “lame-duck” session, to
deal with a very limited number of issues.
The 109th Congress, reflecting the November 2 election results, will convene
in January. (For an initial analysis of the election results, click
here,
here and
here.)
During the 108th Congress, several major NRLC-backed initiatives were
enacted into law, while all new legislative proposals by anti-life forces
were defeated.
The new laws enacted included the Partial-Birth Abortion Ban Act, the first
federal ban on an abortion method since Roe v. Wade; the Unborn Victims of
Violence Act, which recognizes unborn children as legal victims of federal
crimes; and a ban on the patenting of human embryos.
In addition, NRLC-backed provisions to protect the right of Medicare
recipients to preserve access to life-saving medical care were enacted in
2003.
This has been the first full Congress since 1973 (the year the Supreme Court
legalized abortion) in which the President, the leadership of the majority
party in the House of Representatives, and the leadership of the majority
party in the Senate were all pro-life at the same time.
“In this Congress we won every key vote on the House floor,” said Rep. Chris
Smith (R-NJ), longtime leader of the House Pro-Life Caucus. “But we also
needed and we also got very strong support from the Republican leadership on
issue after issue at all the other stages of the legislative process,
including the critical conference committee stage, and that is why we had
these good outcomes.”
However, in the Senate, the anti-life side still held a majority on many
issues, and the threat of anti-life filibusters and/or adoption of crippling
amendments continued to prevent consideration of a number of important
pro-life measures. Filibusters supported by all but a few Democratic
senators have blocked confirmation votes on 10 nominees to circuit courts of
appeals.
“We have had excellent support from the Senate Republican leadership, but we
could have gotten more accomplished around here with just a few more
pro-life senators,” said Senator Sam Brownback (R-Ks.), the chief sponsor of
several key pro-life measures.
Partial-Birth Abortion
In the November 2002 elections, Republicans won a one-seat (51-49) Senate
majority. As a result, pro-life Senator Bill Frist (R-Tn.) took over as
Senate majority leader, displacing pro-abortion Democratic Leader Tom
Daschle (SD). During 2003-04, pro-life leadership continued in the House
under Speaker Dennis Hastert (R-Il.), Majority Leader Tom DeLay (R-Tx.), and
Majority Whip Roy Blunt (R-Mo.).
The shift in party control, which took effect in January 2003, led directly
to the most publicized pro-life win of 2003 –- the
enactment of the Partial-Birth Abortion
Ban Act, which culminated an eight-year effort
led by NRLC.
The bill, sponsored by Senator Rick Santorum (R-Pa.) and Congressman Steve
Chabot (R-Ohio), passed the House and Senate by about 2-to-1 margins. The
ban was signed into law by President Bush on November 5, 2003.
It was the first federal ban on a method of abortion since the Supreme
Court’s 1973 Roe v. Wade ruling. President Clinton had twice vetoed similar
legislation.
The Bush Administration is currently defending the ban against legal
challenges by pro-abortion groups.
Senate Pro-Roe
The 2003 debate demonstrated, however, that the U.S. Senate remains a
difficult arena for pro-life forces. During consideration of the
Partial-Birth Abortion Ban Act, the Senate adopted, 52-46, an amendment
offered by Sen. Tom Harkin (D-Iowa) to endorse Roe v. Wade, the 1973 Supreme
Court decision that legalized abortion.
The Harkin Amendment would have had no legal effect, and in any event it was
later removed from the bill in a House-Senate conference committee dominated
by pro-life lawmakers. Still, the Senate vote approving the amendment
certainly demonstrated that the majority of senators were not in the
pro-life camp.
Nevertheless, 65 senators supported final passage of the Partial-Birth
Abortion Ban Act –- including 18 who also voted
for the Harkin Amendment. This demonstrated that a substantial number of
pro-Roe senators will not necessarily follow the demands of pro-abortion
advocacy groups on every single issue.
Unborn Victims of Violence Act
Another major pro-life milestone was achieved with enactment of the
Unborn Victims of Violence Act .
This legislation, sponsored by Sen. Mike DeWine (R-Ohio) and Congresswoman
Melissa Hart (R-Pa.), recognizes as crime victims unborn children who are
injured or killed during the commission of violent federal crimes.
The bill covers the “child in utero,” defined as “a member of the species
homo sapiens, at any stage of development, who is carried in the womb.”
NRLC had been working for the bill since 1999. It passed the House in 1999
and again in 2001, but never received action in the Senate until this year.
The bill got a boost in early 2003 when it was endorsed by the family of
Laci Peterson, who died with her unborn son Conner in a crime that received
enormous national publicity.
The House passed the bill –- now carrying the
alternative title “Laci and Conner’s Law” –- for
the third time in February, 2004.
Under NRLC auspices,
members of families who had lost loved ones in two-victim crimes converged
in Washington to lobby senators.
Thanks in substantial part to a vigorous effort by Senate Majority Leader
Frist, a killer amendment sponsored by Senator Dianne Feinstein (D-Ca.) was
rejected by a single vote, and the Senate then cleared the bill. President
Bush signed the bill on April 1, 2004, as the grandparents of Conner
Peterson and other members of unborn victims’ families stood behind him.
Unborn Child Pain Awareness Act
In May, pro-life leaders Senator Brownback and Congressman Chris Smith
introduced a new bill, the
Unborn Child Pain Awareness Act (S.
2466, H.R. 4420), with the strong backing of
NRLC. To date, the bill had already been cosponsored by 116 House members
and 27 senators.
The bill would require any abortionist to provide specified information to
any woman seeking an abortion at 20 weeks or later, regarding the pain that
would be inflicted on the baby, and to obtain a signed form accepting or
rejecting administration of pain-relieving drugs to the baby.
“It’s really inflammatory anti-abortion propaganda,” Janet Crepps, a lawyer
with the Center for Reproductive Rights, told Women’s Enews in an August
report. “Right out of the box, I think it’s an inappropriate exercise of
congressional power. Congress is taking sides in a very controversial
medical debate.”
NRLC is urging pro-life citizens to encourage their federal representatives
to cosponsor the legislation, which can easily be done by using the e-mail
tools at the NRLC Legislative
Action Center.
(Lists of cosponsors of major pro-life and anti-life bills, updated daily,
may be viewed at the Legislative Action Center under "Issues
and Legislation.")
Protecting Human Embryos
In August, 2001, President Bush announced that his administration would not
allow federal funding of research that requires killing human embryos,
including embryonic stem cell research. The Administration has provided
funding for research on stem cell lines that were started before the
President’s policy was adopted, and on research using adult stem cells,
which are obtained without harming human embryos.
This year, supporters of embryonic stem cell research have stepped up their
challenges to the President’s pro-life policy. Reps. Mike Castle (R-De.) and
Diana DeGette (D-Co.) have introduced a bill (H.R.
4682) that would require federal funding of research using human
embryos created by in vitro fertilization and later “donated” by their
parents. In addition, 58 senators signed a letter to President Bush in June,
2004, urging him to relax restrictions on such research. But the President
has made it clear that he opposes any weakening of his policy, and neither
house is expected to vote on the issue during the November lame-duck
session.
On a related issue, pro-life forces failed to achieve a major legislative
priority of the last several years: Enactment of a national ban on the
creation of human embryos by cloning.
Researchers in Korea and China claim to have succeeded in cloning human
embryos, who they allow to develop for about five days and then kill to
harvest their stem cells. No American biotech firm has yet shown convincing
evidence of having done the same, although a number of labs are working on
it.
In February, 2003, only a month after the start of the 108th Congress, the
House passed the NRLC-backed Weldon-Stupak bill (H.R. 534) to ban all human
cloning, 241-155. In the Senate, however, the nearly identical bill
sponsored by Senators Brownback (R-Ks.) and Mary Landrieu (D-La.) (S. 245)
has been blocked by a large group of senators who support cloning human
embryos for experimentation.
Many of the pro-cloning senators have rallied behind counter-legislation
sponsored by Senators Orrin Hatch (R-Utah) and Dianne Feinstein (D-Ca.) (S.
303), which pro-life groups call “the clone and kill bill.” The
Hatch-Feinstein bill would allow human embryos to be created by cloning, and
penalize anyone who allows such an embryo to develop past the 14th day
(unless frozen).
Neither the Brownback-Landrieu bill nor the Hatch-Feinstein bill had enough
votes to overcome procedural obstacles – resulting in a protracted standoff.
This standoff has amounted to a tactical win for the pro-cloning forces,
since in the absence of a federal ban, human cloning remains legal in most
states.
(For more information on the human cloning issue, click
here.)
Patenting Human Embryos
Despite disappointment at failing to win Senate approval of the ban on human
cloning, pro-life forces did achieve a victory on a closely related issue:
the patenting of
human embryos.
Elements of the biotechnology industry wish to create
human embryos by cloning in order to use them in medical research that will
kill them. Some biotech firms hope to eventually be able to obtain patents
that would allow an exclusive property right to create and sell “copies” of
cloned or genetically modified human embryos – much as animals with specific
genetic traits are now patented and sold for laboratory research.
In July, 2003, Congressman Dave Weldon (R-Fl.) won House approval of an
amendment to prohibit the U.S. Patent and Trademark Office from issuing any
patent on a human embryo.
Subsequently, the powerful Biotechnology Industry Organization (BIO) and the
Coalition for the Advancement of Medical Research (CAMR) waged an intense
behind-the-scenes lobbying campaign in the Senate to try to prevent the
Weldon Amendment from being law. They failed, due in large part to forceful
interventions by House Speaker Dennis Hastert (R-Il.), House Majority Leader
Tom DeLay (R-Tx.), and Senator Frist. President Bush signed the Weldon
Amendment into law as part of an omnibus funding bill on January 23, 2004.
Since the Weldon Amendment was part of an appropriations bill, however,
interest groups that want to make human embryos into commodities can be
expected to reopen the fight on funding bills for future fiscal years.
(For more information on the human patenting issue, click
here.)
Conscience Protection
In 2002, the House passed the NRLC-backed Abortion
Non-Discrimination Act, a bill to prohibit any
federal, state, or local government agency from requiring any health care
provider, including a hospital or health plan, to provide abortions or
certain abortion-related services. But the bill died without Senate action.
This year, pro-life forces won House passage of a similar provision authored
by Congressman Henry Hyde (R-Il.) and Weldon, but this time embedded in the
annual funding bill for the Department of Health and Human Services. The
powerful House Appropriations Committee approved the amendment on July 14,
and on September 9 the full House passed the bill without a separate vote on
the Hyde-Weldon provision.
[UPDATED DECEMBER 9: During the lame-duck session, the
Hyde-Weldon Amendment was retained in the final omnibus funding bill,
despite attacks from pro-abortion lawmakers. The bill was signed into
law by President Bush on December 8, 2004. To learn more about the
enactment of this major new pro-life law, click
here.]
Medicare
The Medicare reform bill enacted in December 2003 contained the most
high-priority objective in NRLC’s eight-year fight against health care
rationing for older people. The bill makes it legal for senior citizens who
choose to do so to add their own money on top of whatever the government may
pay in order to get insurance less likely to deny life-saving treatment.
Most public attention was focused on the bill’s addition of a prescription
drug benefit to Medicare -- a benefit which was free of rationing-inducing
government price controls. In the long term, however, the most fundamental
aspect of the Medicare legislation is its contribution to freeing older
Americans to use their own money to save their own lives.
NRLC has long recognized the economic reality that with the impending
retirement of the baby-boom generation, unless there are massive tax
increases (which are highly improbable), government Medicare payments per
beneficiary will not be able to keep up with medical inflation. If the funds
available for health care for senior citizens from all sources had been
limited to only those from government Medicare –-
as was essentially the law before NRLC became involved in the fight over the
legislative restructuring of Medicare in 1995 -- the only possible result
would have been massive and increasing rationing. Since senior citizens are
required to participate in Medicare, this would have amounted to
government-imposed involuntary euthanasia.
Under the Medicare bill signed into law December 8, 2003, by President Bush,
however, senior citizens will legally be able to choose from a broad
spectrum of types of health insurance plans, adding their own money to the
government contribution in order to pay the premiums.
While senior citizens rely on their social security benefits, few expect
social security to cover all living expenses in retirement. They recognize
the need to supplement the government benefits from other sources: private
pension, 401(k) plans and IRAs, and other savings and income. In the same
way, future retirees will be able to use their own savings and other income
to cover a portion of the cost of their health insurance.
Although no one likes to spend money, and politicians constantly denounce
“rising health care costs,” America has consistently been able to devote
more resources to saving lives through health care because rising
productivity in other areas has freed up those resources. For example, if
for each of the past 60 years you add the proportion of personal consumption
expenditures for health care (which has generally been rising annually) to
that for food (which has generally been falling annually), you find that the
combined total has remained virtually constant. This means that what
Americans have saved in the cost of food, due to increased agricultural
productivity, has alone covered the cost of the increases in our resources
devoted to health care.
Yet -- un-American as it may seem -- until NRLC made initial inroads in a
1997 bill and then achieved effectively complete success in 2003, government
Medicare laws were written so as to suppress older Americans’ right to
increase the resources devoted to their own life-saving health care.
Consequently, the 2003 Medicare bill stands as a landmark in the fight
against government rationing of health care.
Other Pro-Life Legislation
These are among the other significant pro-life bills proposed in the 108th
Congress:
● The Child Custody Protection Act was introduced by Rep. Ileana
Ros-Lehtinen (R-Fl.) as H.R. 1755 and by Sen. John Ensign (R-Nv.) as S. 851.
It would make it a federal crime to transport a minor across state lines to
obtain an abortion if this evades the parental involvement requirements of a
minor’s home state. The House has passed this legislation in the last three
congresses, but it has been obstructed in the Senate.
● The Informed Choice Act was introduced by Rep. Cliff Stearns (R-Fl.) as
H.R. 195 and by Senator Jim Bunning (R-Ky.) as S. 340. The bill would
authorize $3 million per year for grants to certain nonprofit organizations
to buy ultrasound equipment, to be used to provide live ultrasound images to
pregnant women who desire such services. No votes are expected in this
Congress.
● The RU-486 Suspension and Review Act was introduced by Congressmen Jim
DeMint (R-SC) and Roscoe Bartlett (R-Md.) as H.R. 3453 and by Senator
Brownback (R-Ks.) as S. 1930. This bill would suspend the distribution of
the drug mifepristone, commonly known as the RU-486 abortion pill, pending a
review by the Comptroller General of the United States of whether the FDA
followed proper procedures in approving the drug in 2000. The bill has
gathered a substantial number of cosponsors, but no votes are anticipated in
this Congress. Another bill (H.R. 486), proposed by pro-life Congressman
Dave Vitter (R-La.), would impose restrictions on the distribution of the
drug more stringent than those required by the FDA.
Pro-abortion Amendments Blocked
During 2003-04, pro-abortion forces engaged in numerous but unsuccessful
legislative attacks on two pro-life policies of the Bush Administration
relating to U.S. foreign aid programs.
One target was President Bush’s pro-life “Mexico City Policy,” an executive
order that bars U.S. foreign aid funds for “family planning” programs
overseas from being given to private organizations that perform abortions
(with narrow exceptions) or promote abortion (for example, by working to
repeal pro-life laws).
This pro-life policy, originally enforced by President Reagan and President
H. W. Bush, was nullified by President Clinton from 1993-2000. The policy
was restored in January 2001 by President George W. Bush.
The House has rejected amendments to overturn the pro-life policy. The
Senate has included such language in several bills, including an amendment
sponsored by Sen. Barbara Boxer (S. 925) that was approved 53-43 in July
2003. But President Bush has made it clear that any bill containing such
language will be vetoed. For example, on September 23, the White House sent
a “statement of Administration policy” on a pending foreign aid
appropriations bill that said flatly, “The President would veto the bill if
it were presented to him with such a provision.”
Because the pro-life stance of the House and the President, the bad
Senate-passed provisions have all been dropped, or will be dropped, in
House-Senate conference committees.
The House and the White House also barred attempts to weaken the Kemp-Kasten
Anti-Coercion Law, a key pro-life law that has blocked U.S. funding for the
United Nations Population Fund (UNFPA). This law, which has been in effect
for nearly two decades, prohibits U.S. funding of any organization that
“supports or participates in the management of a program of coercive
abortion or involuntary sterilization.”
In 2002, the Bush Administration determined that the extensive involvement
of the UNFPA in China’s population control program –-
which relies heavily on coerced abortions -- violates the Kemp law, and the
Administration cut off U.S. funding of the UNFPA.
Two attempts to restore funding to the UNFPA have failed in the House – one
on a very close floor vote of 216-211 on July 15, 2003. In September, the
Senate approved pro-UNFPA language, but it is expected that it will be
dropped in a conference committee due to opposition from the House and the
Bush Administration.
Pro-abortion forces also failed in their repeated attempts to weaken
pro-life laws that prohibit funding of abortion by the Department of Defense
or the use of military medical facilities for abortions, with narrow
exceptions. One such amendment cleared the Senate but it was dropped in
conference committee.
“Freedom of Choice Act”
In January, 2004, pro-abortion leaders in Congress introduced the
“Freedom of Choice Act” (H.R. 3719 and S. 2020).
The measure would prohibit any level of government from restricting
abortion, invalidating even the modest types of regulations of abortion that
the Supreme Court has allowed under Roe v. Wade. The bill prohibits any
“statute, ordinance, regulation, administrative order, decision, policy,
practice, or other action” of any federal, state, or local government or
governmental official (or any person acting under government authority) that
would “deny or interfere with” a woman’s right to abortion.
The no-restriction policy would also apply after “viability” to any abortion
sought on grounds of “health.” The bill does not define “health,” but in the
abortion context it has been defined by the Supreme Court to cover any
physical or emotional consideration whatsoever, including “distress.”
The bill is an updated and expanded version of legislation with the same
name that was pushed hard by pro-abortion groups in the late 1980s through
1994, but which failed to pass Congress because of the work of NRLC and its
allies.
(For more information on this bill, click here.)
Judicial Nominations
During 2003-04, the Democratic minority in the Senate, led by Democratic
Leader Tom Daschle of South Dakota, prevented up-and-down votes on ten of
President Bush’s nominees to federal courts of appeals. These are very
important courts, just one level down from the U.S. Supreme Court.
Republicans hold the Senate majority, 51-49. Moreover, under the
Constitution, only a majority vote is required for the Senate to confirm a
presidential nominee. However, under Senate rules, unlimited debate (or
filibuster) is permitted on most issues, unless the Senate votes to “invoke
cloture,” which requires 60 votes. Senate Democrats have used the filibuster
because the targeted nominees would have been confirmed by simple majorities
on up-and-down votes.
The nominees subjected to filibusters and other obstruction tactics, despite
their sterling legal credentials, are those targeted by a coalition of
liberal groups. Pro-abortion organizations such as NARAL, the Planned
Parenthood Federation of America, and People for the American Way are
especially influential in this coalition. Therefore, many nominees who would
not commit to vote for abortion were targeted for such obstruction.
All 51 Republican senators supported ending every filibuster of a judicial
nominee, but no more than four Democratic senators have voted to end any of
the 10 filibusters. Therefore, none of the filibusters have yet been broken.
Forty-three of the 49 Democratic senators failed to support ending the
filibuster against even one of the 10 filibustered nominees.
Sen. Zell Miller (D-Ga.), who has endorsed President Bush for re-election,
voted to end every filibuster (except for one occasion when he was absent).
Sen. Ben Nelson (D-Ne.) voted to end eight of the ten filibusters, missed
one vote, and voted to continue one filibuster.
Sen. John Breaux (D-La.) voted to end three of the filibusters. Bill Nelson
(D-Fl.), Joseph Biden (D-De.), and Jim Jeffords (Vt.), an independent who
caucuses with the Democrats, each voted to end one filibuster.
The ten nominees who have been denied up-and-down confirmation votes by
these filibusters are attorney Miguel Estrada, U.S. Court of Appeals for the
District of Columbia; Priscilla Owen and Charles Pickering, U.S. Court of
Appeals for the Fifth Circuit; Henry Saad, Richard Griffin, and David
McKeague, Sixth Circuit; Janice Rogers Brown, Carolyn Kuhl, and William
Myers, Ninth Circuit; and Bill Pryor, Eleventh Circuit.
Estrada, the first Hispanic nominated for a seat on the prestigious U.S.
Court of Appeals for the District of Columbia, withdrew his name from
further consideration after being denied an up-and-down vote for nearly two
years and after seven unsuccessful cloture votes.
Several other nominations have not been brought to the floor due to
obstruction in committee or threatened filibusters, including that of Claude
Allen of Virginia, a senior Administration official who President Bush
nominated to Fourth Circuit.
Over vocal protests from Senate Democrats, early this year President Bush
made “recess appointments” of Pickering and Pryor to the Fifth and Eleventh
circuits, respectively. This means that they will sit as judges until the
beginning of the next Congress in January, after which they or others must
be nominated for confirmation to those seats.
For more information on judicial nominations, click
here.
Congressional Scorecards
The votes of members of the U.S. Senate and U.S. House of Representatives on
key pro-life issues from 1997 to date are collected in “scorecards” that are
posted on the NRLC website in the Legislative Action Center, at
http://www.capwiz.com/nrlc/home/
Key votes are added to the scorecards soon after they occur, and are also
published in NRL News.
The Legislative Action Center also contains detailed information on the
various bills supported and opposed by NRLC, including the names of the
lawmakers who have cosponsored these bills.
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