NRL News
Page 1
Fall 2012
Volume 39
Issue 4

The Obama Abortion Agenda and the Congress: The Last Four Years

By Douglas Johnson

WASHINGTON, D.C. (October 1, 2012)–Over the four years of Barack Obama’s presidency, substantial damage has been inflicted to longstanding pro-life policies. In addition, new programs have been created which, during the years ahead, will result in large-scale federal subsidies to health plans that pay for abortion, other federally driven expansions of abortion, and rationing of lifesaving medical care, unless remedial legislation is enacted.

In addition, Obama placed two strongly pro-abortion justices on the U.S. Supreme Court.

However, during the last four years, additional pro-abortion initiatives have been deterred, blocked, or repaired by pro-life forces.

If pro-life Mitt Romney is elected president on November 6, we can begin to repair the worst damage, and to resume the previous progress towards increased protections for unborn children and other vulnerable members of the human family. But if President Obama is re-elected, the damage will be compounded tenfold.

In short: The last four years have been bad, but it could have been much worse–and if Barack Obama is given another four years in office, it will be.

Obama has now been in office through the entire 111th Congress (2009-2010) and through most of 112th Congress (2011-2012)–although the 112th Congress will not formally end until the conclusion of a short “lame duck” session after the November 6 general election.

Any knowledgeable and objective observer would agree that Barack Obama holds more extreme pro-abortion policy positions than any previous occupant of the White House, and that his pro-abortion ideology has led him to embrace specific policy positions that are at odds with the views and ethical instincts of the great majority of Americans–for example, in his opposition to bans on partial-birth abortions and sex-selection abortions.

Yet, over the past four years, Obama’s ability to advance his abortion-expansive agenda has been somewhat constrained by strong resistance by pro-life forces–who since January 2011 have controlled the U.S. House of Representatives–and by his desire to win a second term. If he wins re-election on November 6, the second factor will no longer inhibit him. The extent to which the Congress will continue to constrain him will be determined in substantial part by the results of the congressional elections.

The 2009-2010 Congress:

Obama’s Health Care Legislation

When Obama was sworn as president in January, 2009, the new Congress was made up of about three-fifths Democrats in both houses. Pro-abortion Democrats (House Speaker Nancy Pelosi of California and Senate Majority Leader Harry Reid of Nevada) were in command in both chambers, and all of the most important committees were chaired by pro-abortion Democrats.

On his third day in office–the 36th anniversary of the Roe v. Wade ruling that legalized abortion on demand nationwide–Obama issued a formal statement reaffirming his commitment to defending that ruling, stating that “this decision not only protects women’s health and reproductive freedom, but stands for a broader principle: That government should not intrude on our most private family matters.”

The statement was hardly surprising, coming from the man who just two years earlier, as a U.S. senator, had cosponsored the “Freedom of Choice Act” (FOCA, S. 1173), a bill to invalidate virtually all state and federal limits on abortion, including the federal ban on partial-birth abortion.

Early in the 2009-2010 Congress, Obama declared health care restructuring legislation to be a top priority. While campaigning for president, Obama had vowed that his “health care reform” legislation would require universal coverage of abortion, and the initial Democrat-sponsored health care bills would have fulfilled that pledge with provisions that would have effectively mandated elective abortion coverage in nearly all health insurance plans, including a giant “public plan” to be run directly by the federal government.

NRLC and other pro-life groups mounted strong resistance. In November, 2009, an NRLC-backed amendment to the health care legislation was adopted on the House floor, with the support of nearly all Republicans and one-fourth of the Democrats. The amendment (the Stupak-Pitts Amendment) would have prohibited federal subsidies for abortion under any component of the 1990-page legislation.

The health care bill–temporarily fixed on abortion, although not on rationing–was then sent to the Senate. Obama attacked the House’s adoption of the pro-life amendment, and worked with Senate Democratic Leader Reid to defeat a similar pro-life amendment in the Senate. As a consequence, in December 2009 the Senate approved a different version of the health care bill that contained multiple provisions to allow federal subsidies for abortion and health plans that cover abortion.

NRLC and other pro-life groups kept fighting against that legislation, urging the House not to approve the Senate-passed legislation, and delayed House approval of the bill for months.

Finally, however, in March 2010, a small group of House Democrats who had previously withheld support from the health care bill because of the pro-abortion provisions switched sides, saying they were satisfied with an executive order crafted by the White House. The White House presented the executive order to the public as preventing any federal subsidies for abortion under the bill–a sham largely accepted as factual by gullible organs of the mainstream news media.

The order was denounced by NRLC as “a transparent political fig leaf,” which fixed none of the multiple abortion-expansive provisions of the legislation, and was described by the president of Planned Parenthood as a “symbolic gesture.” However, a sufficient number of House Democrats embraced the charade to narrowly pass the bill, and the massive health care bill was enacted into law, although without the support of single Republican in either the House or the Senate.

Thanks to the tenacious resistance by NRLC and other pro-life forces, Obama did not end up with every abortion-expansive provision that he had originally sought. The final law does not mandate that all private health plans cover abortions, and it allows individual state legislatures to enact laws (now referred to as “opt-out laws”) to keep abortion coverage out of health plans sold through the government-administered “exchanges” that the federal law requires.

However, the legislation creates a new program under which scores of millions of Americans will receive subsidies from the federal Treasury to purchase health plans, including health plans that cover all abortions–a sharp break from decades of federal policy. Even if a citizen lives in a state in which the legislature has enacted legislation to specifically prohibit abortion coverage from being sold on that state’s exchange, that citizen cannot prevent his federal taxes from subsidizing the abortion-covering health plans in other states that do not pass such laws.

The health care law also contains multiple other provisions that empower the federal executive branch to expand subsidies for and access to abortion.

For example, a controversy that erupted in July 2010 provided further evidence that the new health care law allows abortion funding. NRLC discovered that the Department of Health and Human Services (DHHS) had approved proposals to cover abortions that had been submitted by some states under one of the new federal programs created by the health care law, known as the “Pre-Existing Condition Insurance Plan” or “high-risk pool program.” Under the ensuing glare of national media attention, the Obama Administration abruptly acted to exclude abortion coverage from that single program–while insisting that this action would not be a precedent for other programs. NRLC, the ACLU, and the White House all agreed that there was nothing in the health care law to prevent abortion coverage under the high-risk program.

(NRLC documented some of the major abortion-expansive provisions of the Obamacare law, and how they departed from decades of federal policy on abortion, in testimony presented to a House subcommittee in February 2011, available here: http://www.nrlc.org/AHC/ProtectLifeActDouglasJohnsonTestimony.pdf)

Supreme Court Appointments

During 2009 and 2010, President Obama nominated and won Senate confirmation of two justices to the U.S. Supreme Court–Sonia Sotomayor and Elena Kagan. Based on their records, both justices are expected to vote on the pro-abortion side.

Obama nominated Sotomayor in 2009 to replace retiring Justice David Souter. For a period of 12 years (1980–1992), prior to becoming a judge, Ms. Sotomayor served on the governing board of the Puerto Rican Legal Defense and Education Fund (PRLDEF), and for part of that time she was the chair of the PRLDEF Litigation Committee. During her tenure on the board, the PRLDEF was actively involved in litigation that attempted to persuade the Supreme Court to expand the judge-created “right to abortion,” often beyond what the Court was willing to embrace, including nullification of parental notification requirements and restrictions on taxpayer funding of abortion.

Despite opposition from NRLC and other pro-life groups, Sotomayor won confirmation by a vote of 68-31.

In 2010, Obama nominated Kagan, then serving as U.S. solicitor general, to replace retiring Justice John Paul Stevens. In June, 2010, NRLC was the first group to call attention to documentation that Kagan, as a key member of the White House staff of President Bill Clinton, had played a central role in the successful effort to prevent enactment of the Partial-Birth Abortion Ban Act during the Clinton Administration.

Despite opposition from NRLC and other pro-life groups, Kagan won confirmation by a vote of 63-37. Kagan was supported by 58 Democrats and by five Republicans. However, the 37 nay votes (36 of them cast by Republicans) was the largest number cast against a Democratic president’s Supreme Court nominee since the 19th century.

President Obama placed numerous other hard-core pro-abortion persons in powerful offices, including the lower federal courts. However, as Obama’s first term draws to a close, a substantial number of Obama’s judicial nominees remain unconfirmed, thanks to nearly unified opposition by Republican senators.

Executive Actions

Directly and through his political appointees, Obama also attacked pro-life policies through the use of Executive Branch powers.

Under Obama and his secretary of state, Hillary Clinton, promotion of access to abortion has become a substantial component of U.S. foreign policy, and U.S. funds are flowing to many abortion-promoting entities overseas.

On his fourth day in office, Obama issued an executive order to rescind the pro-life “Mexico City Policy” which had been enforced by Republican presidents going back to Ronald Reagan. The effect of Obama’s order was to open the door to hundreds of millions of dollars in U.S. funding to private organizations that perform and promote abortion overseas.

Secretary of State Clinton openly proclaimed, at a 2009 House committee hearing, that “we are now an administration that will protect the rights of women, including their rights to reproductive health care,” that “reproductive health includes access to abortion,” and that the Administration intends to advocate for this right “anywhere in the world.”

The Obama Administration urged the Senate to ratify a treaty, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), that has been employed as a pro-abortion weapon to pressure nations to weaken or repeal laws. But strong opposition from NRLC and other pro-life forces ensured that the treaty could not muster the two-thirds vote required for ratification, and it was never brought to the Senate floor.

In March 2009 Obama signed an order allowing the federal National Institutes of Health to fund the type of stem cell research that requires the destruction of human embryos.

These and other pro-abortion executive actions by the Administration were not challenged by Congress during 2009-2010, due to both houses being in control of pro-abortion Democrats. Indeed, in response to a White House proposal, the Democratic congressional leadership rammed through legislation that lifted a longstanding ban on government funding of abortion in the District of Columbia.

The 2011–2012 Congress:

Pro-Life House, Pro-Abortion Senate

The November 2010 election results brought a major change to the power dynamic in Washington–pro-life Republicans took control of the House of Representatives.

The election brought a net shift of 63 House seats to the Republicans, giving them a 242-193 seat majority when the 112th Congress convened in January, 2013. All but a handful of the newly elected Republicans were pro-life. Pro-life Rep. John Boehner (R-Ohio) was sworn in as Speaker of the House, ending Nancy Pelosi’s four-year reign as speaker. Longtime pro-life champion Eric Cantor (R-Va.) was selected as majority leader.

The election also resulted in modest changes in the Senate. The Democrats remained in control, and remained under the direction of pro-abortion Majority Leader Harry Reid, but the election reduced the Democrat majority from 59-41 to 53-47. While Reid retained the power to largely set the agenda for the Senate, the diminished Democrat majority strengthened the ability of pro-life Republican Leader Mitch McConnell (Ky.) to block legislation and nominees objectionable to most Republicans–since it usually takes 60 votes to win adoption of a controversial bill, motion, or nomination in the Senate.

The first major bill brought to the House floor by the new Republican leadership was an NRLC-backed measure to completely repeal the Obama health care law (“Obamacare”). On January 19, 2011, the House passed the repeal bill (H.R. 2) by a vote of 245-189. Two weeks later, however, the Senate rejected a nearly identical measure on a straight party-line vote.

This essentially set the pattern for the entire 112th Congress. The House–with unified or nearly unified support from Republicans, joined by a small number of Democrats–passed measure after measure supported by NRLC. But all of them were either voted down outright in the Senate, or smothered without action by Reid.

These Senate-killed bills included:

– the No Taxpayer Funding for Abortion Act (H.R. 3), sponsored by Reps. Chris Smith (R-NJ) and Dan Lipinski (D-Il.), which would establish a permanent, government-wide ban on federal subsidies for abortion, with narrow exceptions. The bill would supersede a patchwork of different laws limiting federal subsidies for abortion, many of which must be renewed each year because they are incorporated into annual appropriations bills. The House passed the bill 251-175, despite a formal veto threat issued by the White House. The Senate never voted on the House-passed bill or on the companion bill (S. 906) introduced by Senator Roger Wicker (R-Ms.).

– the “Protect Life Act” (H.R. 358), introduced by pro-life Rep. Joe Pitts (R-Pa.), a bill to prohibit pro-abortion subsidies and mandates in every component of the massive Obamacare law. The House passed the bill in October, 2011, 251-172, notwithstanding a formal veto threat issued by the White House. The Senate never voted on the House-passed bill or on the companion bill (S. 877) introduced by Senator Orrin Hatch (R-Utah).

– Legislation to block further federal funding, during Fiscal Year 2011–2012, for Planned Parenthood, the nation’s largest abortion provider. In the spring of 2011 the House approved such cutoffs twice, but the Senate voted 58-42 in favor of continued funding of Planned Parenthood. The issue was one of the last matters to be resolved in direct negotiations on an omnibus appropriations bill between House Speaker Boehner and President Obama. Obama indicated that he would block enactment of the government-wide funding bill–forcing a government shutdown–rather than agree to the House position that funding to Planned Parenthood should be curtailed. However, Obama did bow reluctantly to the House position in favor of restoring the longstanding ban on government funding of abortion in the District of Columbia, which had been lifted at the instigation of the White House in 2009.

During 2012, the House also conducted test votes on two other important pro-life measures, strongly supported by NRLC–both of which mustered substantial majorities on the House floor. However, the Senate failed to act on the identical companion bills. They were:

– The Prenatal Nondiscrimination Act (H.R. 3541), which would prohibit the use of abortion to eliminate an unborn child because she is not of the sex desired by the parents. The House tally was 246-148 in favor of the bill. The White House issued a statement opposing the bill the day before a majority of the House voted for it, saying that the proposed ban would “intrude” on “private family matters.” The legislation was authored by Congressman Trent Franks (R-Az.). The Senate companion bill (S. 3290) was introduced by Senator David Vitter (R-La.).

– The District of Columbia Pain-Capable Unborn Child Protection Act (H.R. 3803). This bill would prohibit abortion in the District of Columbia after 20 weeks fetal age, based on congressional findings that by that point – if not earlier – the child is capable of experiencing pain during an abortion. Currently, there is no law whatever limiting reasons for which abortion may be performed in the nation’s capital – abortion is legal, for any reason, until the moment of birth.

The House tally was 220-154 in favor of the bill. (See roll call vote, pages 18-20.)

White House Press Secretary Jay Carney referred to the bill as “controversial, divisive social legislation” and suggested that Congress should not be wasting its time on it.

The bill, based on an NRLC model that has already been enacted in eight states, was introduced by Congressman Franks in the House, and in the Senate by Senator Mike Lee (R-Utah) as S. 2103.

Assaults on Conscience Rights

In 2011, the Obama Administration rescinded (nullified) a Bush Administration rule to help protect health care providers who are threatened with penalties for refusing to participate in providing abortions.

In 2012, the Obama Administration employed one provision of the Obamacare law to issue a new mandate (technically, a “final rule”) that most employer-sponsored health plans must pay for all FDA-approved methods of birth control, including both drugs and sterilization procedures. The mandate sparked strong protests from the Catholic Church and from many religiously affiliated colleges, employers, and other institutions.

Pro-life members of Congress responded, proposing new legislation to amend the Obamacare law so that it could not be used to force coverage of drugs and procedures contrary to conscience or religious belief. This legislation, strongly supported by NRLC, was offered by pro-life Senator Roy Blunt (R-Mo.) as an amendment to unrelated bill, but it failed, 51-48, on March 1, 2012.

In the House, the same legislation was proposed by Congressman Jeff Fortenberry (R-Ne.) as H.R. 1179, and gained 224 cosponsors–a majority of the House. But in view of the Senate’s rejection of the identical legislation and the certitude of an Obama veto, the House bill never came to the floor for a vote.

The Obama mandate has been challenged by a host of lawsuits, which remain unresolved.

Not content only to block the pro-life initiatives advanced by the House, pro-abortion members of the Senate made multiple attempts to win Senate approval of bills to roll back various longstanding pro-life policies—but these were blocked by pro-life senators in cooperation with NRLC. (See, for example, the account of the successful pro-life effort to block a funding bill containing multiple pro-abortion provisions, in “Pro-life House and Pro-abortion Senate Divided,” Fall 2011 NRL News, page. 1.)

For up-to-date information on pro-life issues in Congress, make frequent visits to the NRLC Legislative Action Center at http://www.capwiz.com/nrlc/home/

Complete NRLC congressional “scorecards,” documenting the voting records of members of Congress on key pro-life issues from 1997 to date, are readily available on this website, along with information on current legislative developments.