Life Challenge: Federal Legislation
Senate Remains Major Obstacle
Following Pro-Life Win on Partial-Birth Abortion Ban, Other Battles Loom in Congress
By Douglas Johnson
NRLC Federal Legislative Director
The votes of members of the U.S. Senate and U.S. House of Representatives on key pro-life issues are collected in "scorecards" that are posted on the NRLC website at www.nrlc.org, in the Legislative Action Center. 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 each measure.
WASHINGTON (January 5, 2004) - - Following a year of notable pro-life successes in Congress, pro-life forces are hoping to make further gains during 2004.
2003 - - the first year of the two-year 108th Congress - - was the first full year since 1973 (the year the Supreme Court legalized abortion) in which the President, the leadership of the House of Representatives, and the leadership of the Senate were all pro-life at the same time.
In the November 2002 elections, Republicans won a one-seat (51-49) Senate majority. As a result, pro-life Senator Bill Frist (R-Tn.) is now the Senate majority leader, replacing pro-abortion Democratic Leader Tom Daschle (SD). Pro-life leadership continued in the House under Speaker Dennis Hastert (R-Il.) and Majority Leader Tom DeLay (R-Tx.).
Although the Senate still lacks a pro-life majority, the shift in party control 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), was signed into law by President Bush on November 5. (See November NRL News, page 1.) President Clinton had twice vetoed similar legislation.
Another key pro-life victory attracted far less attention from the news media: The inclusion of provisions to protect the right of Medicare recipients to preserve access to lifesaving medical care. (See separate story, page 10.)
Another top NRLC priority, a ban on the patenting of human embryos (the Weldon Amendment), may win enactment before the end of January, as part of an omnibus spending bill.
Whether further legislative progress will be achieved during 2004 will depend mainly on the Senate, which is narrowly divided on some key pro-life issues.
The Senate remains a difficult arena for pro-life forces, as illustrated by the March 2003 vote by which 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, which was attached to the Partial-Birth Abortion Ban Act, had no legal effect, and in any event it was later removed from the bill in a House-Senate conference committee - - but the Senate vote certainly demonstrated that the majority of senators are 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 demonstrates that a substantial group of pro-Roe senators will not necessarily follow the demands of pro-abortion advocacy groups on every single issue.
In the House of Representatives, the Partial-Birth Abortion Ban Act passed by more than a two-to-one margin on June 4. Senators opposed to the bill used several procedural devices to delay final approval for a time, but both houses passed the final bill in October, allowing President Bush to sign the bill into law on November 5. It was the first federal ban on a method of abortion since the 1973 Roe v. Wade ruling. (See "President Bush Signs Historic Ban," November 2003 NRL News, page 1.)
The Bush Administration is now defending the law against legal challenges in three different federal courts.
Unborn Victims of Violence Act
The first major pro-life priority for the 2004 congressional session will be the Unborn Victims of Violence Act (S. 1019, H.R. 1997), sponsored by Sen. Mike DeWine (R-Ohio) and Congresswoman Melissa Hart (R-Pa.).
This bill, strongly backed by NRLC, would recognize unborn children as legal victims when they are injured or killed during the commission of federal crimes.
Among those urging Senate action on the bill has been Sharon Rocha, whose daughter Laci Peterson and grandson Conner Peterson were murdered in California in December 2002.
Pro-life Senate Majority Leader Bill Frist (R-Tn.) has repeatedly attempted to bring the bill to the Senate floor, only to be obstructed by objections from Democratic senators.
Senate Democratic Leader Tom Daschle (SD) has said since last summer that he agrees with Frist that the Senate should consider the issue "expeditiously." Nevertheless, Democratic senators Barbara Boxer (Ca.) and Patty Murray (Wa.) have insisted on the right to offer entire bills on unrelated subjects as amendments to the bill, and Senator Dianne Feinstein (D-Ca.) is pushing a "substitute amendment" that would actually enshrine the doctrine that an assault against a pregnant woman has only one victim.
Frist's staff now says that he is determined to force an open confrontation on the bill early in 2004.
"If Democratic senators want to filibuster Laci and Conner's Law, they will have to do so in the open, and then try to explain that to their constituents," said one Senate Republican leadership aide.
The House has passed the legislation twice before - - in 1999 and 2001 - - and would readily do so again. President Bush strongly supports the bill.
(For more information on the Unborn Victims of Violence Act and what you can do to help pass it, see pages 12-13 & 30 of this issue.)
Other Pro-Life Bills
Several other bills backed by NRLC have been introduced in one or both houses of Congress, several of which may see action during 2004. They include:
The Child Custody Protection Act has been 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 the Senate has yet to conduct a real debate on it.
The Abortion Non-Discrimination Act was introduced on July 14 by Senator Judd Gregg (R-NH) as S. 1397, and on December 8 by Congressman Michael Bilirakis (R-Fl.) as H.R. 3664. The bill clarifies that no government entity can discriminate against any health care provider, including a hospital or health plan, because that provider declines to be involved in providing abortions. The House passed this legislation in the last Congress, but the Senate never acted on it.
The Informed Choice Act has been 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 qualifying agencies to buy ultrasound equipment, to be used to provide live ultrasound images to pregnant women who desire such services.
The RU-486 Suspension and Review Act has been introduced by Congressmen Jim DeMint (R-SC) and Roscoe Bartlett (R-Md.) as H.R. 3453 and by Senator Sam 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 Food and Drug Administration followed proper procedures in approving the drug in 2000. (See "Bill to Pull Abortion Pill Introduced in Congress," December 2003 NRL News, page 22.)
Protecting Human Embryos
A top pro-life priority, legislation to ban the creation of human embryos by cloning, has been blocked in the Senate for the past year, due mainly to vigorous opposition from the Biotechnology Industry Organization (BIO), which represents biotech firms, and the Coalition for the Advancement of Medical Research (CAMR), an umbrella organization representing various patient and research groups.
On February 27, 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 Sam 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 keeps such an embryo alive after the 14th day (unless frozen).
Neither the Brownback-Landrieu bill nor the Hatch-Feinstein bill has enough votes to overcome procedural obstacles - - resulting in a protracted standoff. This standoff amounts 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 further information on the two competing cloning-related bills, see "Human Cloning Legislation in Congress: Misconceptions and Realities," April NRL News, pages 9-14, and on the NRLC website at http://www.nrlc.org/killing_embryos/cloningmisconceptions031803.html.)
However, it appears that NRLC and other anti-cloning groups may prevail on a related issue: a proposed ban on patenting of human embryos.
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 an effort to head off such a patent-driven industry of "human embryo farms," Rep. Dave Weldon (R-Fl.) - - a physician who has been the leader in the House of efforts to ban human cloning - - on July 22 won House approval of an amendment to a spending bill to prohibit the U.S. Patent Office from issuing a patent on any "human organism."
BIO and CAMR lobbied vigorously for months in the Senate, trying to ensure that the Weldon Amendment would not be part of the final spending bill. NRLC and other pro-life groups, especially the U.S. Conference of Catholic Bishops and the Wilberforce Forum, lobbied hard in support of the amendment. Thanks to strong backing from House Speaker Dennis Hastert (R-Il.), House Majority Leader Tom DeLay (R-Tx.), and Senate Majority Leader Frist, the Weldon Amendment survived a difficult House-Senate conference committee, and was included in a massive omnibus spending bill that received final House approval on December 8.
The Senate is currently scheduled to vote on the same bill on January 20. Prospects for approval are somewhat uncertain because the bill contains a number of controversial items unrelated to the Weldon Amendment, but the progress made so far bodes well for ultimate enactment of a ban on patenting of human organisms.
The same bill contains a provision to fund establishment of a National Cord Blood Stem Cell Bank Program within the federal Department of Health and Human Services. Recent research indicates that these are rich sources of stem cells that might be used to develop effective therapies for a number of diseases, and perhaps provide an alternative to the types of research that depend on stem cells obtained by killing human embryos.
The proposal was originally advanced in a separate bill by Congressman Chris Smith (R-NJ), the co-chairman of the House Pro-Life Caucus, and by Senator Brownback.
"In addition to helping cure many of today's most serious diseases, recent scientific research suggests cord blood stem cells may lead to much improved treatments for Alzheimer's disease, Parkinson's, and several other fatal and debilitating conditions," Smith said.
Foreign Aid to Pro-Abortion Groups
During 2003, pro-abortion forces were unsuccessful in attacking two long-standing pro-life policies that govern certain U.S. foreign aid programs.
One target was the so-called "Mexico City Policy," which 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 the first President Bush, was nullified by President Clinton from 1993-2000. The policy was restored in January 2001 by President George W. Bush.
On July 9, 2003, during consideration of the State Department authorization bill (S. 925), the Senate voted 53-43 in support of an amendment offered by Sen. Barbara Boxer (D-Ca.) to nullify the Mexico City Policy. However, the bill itself became bogged down and never passed the Senate.
Similar pro-abortion amendments were added in the Senate to two different appropriations bills, one dealing with foreign aid and the other with funding of the State Department, at the instigation of Sen. Patrick Leahy (D-Vt.) and Sen. Harry Reid (D-Nv.), respectively. In each case, however, the Bush Administration sent written warnings that the entire bills would be vetoed unless the pro-abortion provisions were dropped, and they both were dropped in a House-Senate conference committee.
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 19 years, 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-Kasten law, and the Administration cut off U.S. funding of the UNFPA.
On July 15, 2003, the House considered a proposal offered by Rep. Joseph Crowley (D-NY), to gut the anti-coercion law and restore U.S. funding to the UNFPA. By a close vote of 216-211, the House rejected the Crowley proposal and instead adopted an amendment sponsored by pro-life Reps. Chris Smith (R-NJ), Jim Oberstar (D-Mn.), and Henry Hyde (R-Il.) that preserved the original Kemp-Kasten law.
This issue was also fought out on the separate appropriations bill containing foreign aid. Pro-abortion senators, led by Leahy, pushed for inclusion of language to restore funds to the UNFPA. But at the insistence of the White House, the final version of that bill preserved the Kemp-Kasten law and the President's authority to deny money to the UNFPA so long as the agency continues to support China's coercive program.
Throughout 2003, the Democratic minority in the Senate prevented up-and-down votes on a growing number of President Bush's nominees to federal courts of appeal who will not commit to support abortion. These are very important courts, just one level down from the U.S. Supreme Court.
To date, six judicial nominees have been denied up-and-down votes because of filibusters conducted entirely by Democratic senators, and one of these has withdrawn his name from further consideration. Some additional judicial nominees are being threatened with such filibusters or obstructed by other methods.
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 is permitted on most issues, unless the Senate votes to "invoke cloture" and thereby end the debate. Cloture requires the votes of 60 of the 100 senators.
During 2003, the Senate conducted 16 cloture votes on disputed judicial nominations. All 51 Republican senators supported ending each filibuster, but no more than four Democratic senators have voted for cloture on any disputed nomination. Forty-four Democratic senators supported continuing the filibusters on each and every disputed nominee. Therefore, none of the filibusters have yet been broken.
The nominees subjected to filibusters and other obstruction tactics, despite their sterling legal credentials, are those targeted by a coalition of advocacy groups, in which pro-abortion organizations such as NARAL, the Planned Parenthood Federation of America, and People for the American Way are especially influential.
The six nominees who have been denied up-and-down confirmation votes by these filibusters are attorney Miguel Estrada, nominated to the U.S. Court of Appeals for the District of Columbia; Texas Supreme Court Justice Priscilla Owen and U.S. District Judge Charles Pickering, both nominated to the U.S. Court of Appeals for the Fifth Circuit; California Supreme Court Justice Janice Rogers Brown and state trial court judge Carolyn Kuhl of California, both nominated to the U.S. Court of Appeals for the Ninth Circuit; and Alabama Attorney General Bill Pryor, nominated to the U.S. Court of Appeals for the Eleventh Circuit.
In addition, several other nominees are being threatened with filibusters or are being blocked in other ways, including Claude Allen of Virginia, a senior Bush Administration official nominated to the U.S. Court of Appeals for the Fourth Circuit.
On September 4, 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 waiting for an up-and-down vote for two years. The other nominees still face an unknown future.
The "ideology" of President Bush's nominees has also come under attack from some of the candidates for the 2004 Democratic presidential nomination.
For example, Howard Dean, former governor of Vermont, has said, "I assure you that because of the screening process that I use, it would be incredibly unlikely that I'd ever nominate somebody who didn't support Roe vs. Wade."
Another contender, Congressman Richard Gephardt (D-Mo.), has said, "I think that if George Bush can put a lot of new judges on the Supreme Court, Roe v. Wade is in danger, seriously in danger, and I don't think those are the kind of judges that we need on the court."
Another candidate, Senator Joseph Lieberman (D-Ct.), at a NARAL event in January 2003, said that "the right to choose is in serious danger from the courts because this president is imposing a rigid litmus test on judicial nominations."
Contender Senator John Kerry (Mass.) has stated that he was "prepared to filibuster, if necessary, any Supreme Court nominee who would turn back the clock on a woman's right to choose or the constitutional right to privacy. . . ."