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NRL News
Page 3
June 2010
Volume 37
Issue 8-9

Kagan confirmed, as debate rages on abortion funding Obama Administration and Congressional Democratic Leaders Push Pro-Abortion Agenda, But NRLC and Allies Raise Roadblocks

WASHINGTON (August 23, 2010)–The Obama Administration is waging a quiet campaign to entrench and expand abortion on demand–but, faced by stiff resistance from NRLC and other pro-life forces, has been forced to make some tactical retreats.

In July, the Administration found itself in a glare of national media attention generated by NRLC’s discovery that the Department of Health and Human Services (DHHS) had approved proposals to cover abortions, in some states, under one of the new federal programs created by the Obama-backed health care legislation that was enacted in March.

As that controversy heated up, the Administration abruptly acted to exclude abortion from that single program, which is called the Pre-Existing Condition Insurance Plan. NRLC noted that the episode underscored the need for new legislation to prevent future federal subsidies for abortion under other new federal programs that will be implemented during the next few years, unless Congress acts first to repeal or extensively revamp the health care law.

The summer months also saw the Administration succeed in filling a Supreme Court vacancy with an abortion supporter whose youth makes likely a long tenure on the court, while continuing to promote an abortion-rights ideology as part of the Administration’s foreign policy.

Abortion Funding Controversy

The July controversy regarding funding of abortion was touched off by Administration actions to implement one of the new federal programs created by the sweeping health care legislation that President Obama signed into law, with much fanfare, in March. (See “Democratic-controlled Congress Enacts Obama-backed Health Care Bill, But the Fight Goes On,” April/May NRL News, page 1.)

The Pre-Existing Condition Insurance Plan (PCIP), also known as the “high-risk pool” program, is one of the first components of the new law to go into effect. This program, which is completely paid for with federal funds, will provide health insurance for people who have pre-existing health problems and have been unable to obtain insurance on the regular market. Congress provided $5 billion in federal funds for the new program, which will cover an estimated 200,000 to 400,000 people.

In mid-July, NRLC’s legislative staff discovered that the Administration had approved PCIP plans from at least three states that covered elective abortion.

In a series of press releases, beginning with a July 13 release highlighting the Pennsylvania plan, NRLC drew attention to the issue–noting that coverage of abortion under the program, which is completely federally funded, validated warnings by NRLC that the new health care law contains multiple provisions that would allow federal subsidies for abortion coverage.

The pro-abortion Alan Guttmacher Institute reported the development this way: “In July, antiabortion activists, led by the National Right to Life Committee, began asserting that they had smoking-gun evidence that the administration had lied in its assurances that federal dollars under health care reform would not fund abortions.”

On July 14, the Associated Press confirmed an NRLC report that New Mexico was enrolling people in the new program with a prospectus that explicitly covered “elective abortion.” On July 16, NRLC pointed out that Maryland was also signing up enrollees based on a document that pointed to abortion coverage.

Some states submitted plans for federal approval that explicitly excluded abortion, but the plans submitted by many other states were not made publicly available.

The NRLC revelations were quickly picked up by many commentators, including Republican congressional leaders, who pointed out that the Administration’s actions were in conflict with earlier White House assurances that President Obama would prevent the use of federal funds for abortion–assurances that some Democratic House members had cited in justifying their votes to enact the health care law in March.

After two weeks of controversy and questions, on July 29 DHHS issued a regulation stating that the PCIP program would not cover abortion in any state (except to save the life of the mother, or in cases of rape or incest). But simultaneously, the head of the White House Office of Health Reform, Nancy-Ann DeParle, issued a statement explaining that the decision to exclude abortion from the PCIP program “is not a precedent for other programs or policies given the unique, temporary nature of the [high-risk pool] program . . . .”

In a July 22 report, found that NRLC’s initial July 13 warning, which focused on abortion coverage in the DHHS-approved plan submitted by Pennsylvania, was well founded. “It would be easy to miss the fact that Pennsylvania’s official solicitation called for coverage of all state-legal abortions,” observed. The report is posted here:

On July 23, the nonpartisan Congressional Research Service (CRS) issued a report confirming that neither the health care law signed by President Obama, nor the executive order he signed on March 24, nor the longstanding Hyde Amendment, prevent the funds in the new high-risk pool program from being used to cover all abortions. (The CRS report is posted here:

NRLC Legislative Director Douglas Johnson commented, “This entire episode demonstrates what National Right to Life said in March, when the House gave final approval to President Obama’s health care legislation over our strong objections–there is no language in the new law, and no language in the President’s politically contrived March 24 executive order, that effectively prevents federal subsidies for abortion. This means that unless Congress repeals the health care law or performs major corrective surgery on it, as each new program is implemented there will be battles over whether elective abortion will be covered.

Senior White House aide Nancy-Ann DeParle has put everybody on notice that the abortion-exclusion policy that the Administration adopted, under pressure, with respect to the high-risk pool program, will not necessarily be applied to the other new federal programs created by the health care legislation–some of which will cover far larger populations.

Lawmakers who voted for the gravely flawed health care bill must be held accountable, because we warned them that it left numerous doors open for federal subsidies for abortion,” Johnson concluded.

The Administration’s pro-abortion ideology has been manifested in other areas as well, especially in the area of foreign affairs. Inquiries conducted at the instigation of Congressman Chris Smith (R-NJ), chairman of the House Pro-Life Caucus, have demonstrated that the Administration channeled at least $23 million to forces that were campaigning for voter approval of a new constitution in Kenya, which contained language that effectively legalizes abortion. (See “Kenya Approves Constitution Containing Strong Pro-Abortion Lanuguage” on page 30 of this issue.)

Permanent Abortion Funding Ban

On July 30, Congressman Smith and Congressman Dan Lipinski (D-Il.) introduced a new bill that would permanently bar subsidies for abortion in all federal programs.

The measure, titled the “No Taxpayer Funding for Abortion Act” (H.R. 5939), is strongly backed by NRLC.

For decades, a patchwork of short-term policies have prevented abortion funding in many programs authorized by Congress, but it is time for a single, government-wide permanent protection against taxpayer funding for elective abortion,” Smith said.

Long-established federal programs, such as Medicaid, currently do not pay for elective abortion, thanks to a patchwork of pro-life policies put in place over a period of decades. Many of these policies are imposed by provisions of annual appropriations bills that require annual renewal, the best known of these being the Hyde Amendment, which prohibits funding of abortion with money from the annual Health and Human Services appropriations bill.

If the Smith-Lipinski bill were enacted, it would no longer be necessary to win annual renewal of the Hyde Amendment or other such temporary bans.

In addition, the bill would prevent federal funds from subsidizing abortion, or insurance plans that cover abortion, in any of the new programs created by the new health care law.

The bill would also make permanent an important pro-life law that has been enacted on a year-to-year basis since 2004, known as the Hyde-Weldon Amendment. This provision prohibits state, local, or federal government agencies that receive federal DHHS funds from discriminating against health care providers for refusing to provide, pay for, provide coverage of, or refer for abortions.

Recent events have demonstrated, more graphically than ever before, the importance of achieving a permanent, government-wide prohibition on subsidies for abortion, and NRLC will work hard for enactment of this legislation,” said NRLC’s Johnson.

House Republican Leader John Boehner (Oh.), who is an original cosponsor of the bill, said, “There is simply no good reason for Congress not to codify the Hyde Amendment, which reflects the clearly-expressed will of the American people. The need for Rep. Smith’s bill has become more clear than ever as a result of the disingenuous way in which the White House and the Democratic congressional leadership thwarted enactment of the pro-life Stupak-Pitts amendment during the debate over health care earlier this year. Rather than allowing the pro-life Stupak-Pitts amendment to become law, President Obama issued an Executive Order purporting to eliminate the need for such an amendment. Americans now know, based on recent developments and the administration’s subsequent scrambling to patch holes exposed in its claim by pro-life Americans, that the president’s executive order is inadequate.”

At NRL News deadline on August 23, H.R. 5939 had 167 cosponsors. To view an always-current list of cosponsors, visit the NRLC Legislative Action Center at

NRLC also supports legislation known informally as the “Protect Life Act,” introduced in the House by Congressman Joe Pitts (R-Pa.) as H.R. 5111 (123 cosponsors) and in the Senate by Senator Tom Coburn (R-Ok.) as S. 3723 (26 cosponsors). This legislation would revise the recently enacted health care law to prevent any pro-abortion subsidies or administrative regulations. Its language is similar to the pro-life amendments that NRLC and other pro-life groups tried to attach to the health care legislation when it was under consideration in Congress.

The Pitts-Coburn bill is intended to correct only the abortion-related problems created by the Obama-backed health care law–a narrower focus than the Smith bill, which would apply a uniform pro-life policy to all federal health programs, both newly created and longstanding.

New Attacks on Pro-Life Policies

Congress is expected to go into recess in early October so that lawmakers can campaign full time during the last few weeks before the November 2 congressional election. Between now and then, NRLC and other pro-life forces will be trying to block enactment of several measures that pro-abortion lawmakers have pushed forward in recent months.

In the Senate, the Armed Services Committee approved an amendment to a defense authorization bill, offered by pro-abortion Senator Roland Burris (D-Il.), that would repeal a longstanding ban on performance of abortions at U.S. military facilities. The full Senate may take up the bill, and the amendment, during September. Pro-life Senator Roger Wicker (R-Ms.) is expected to lead an effort to block the Burris Amendment and preserve the longstanding pro-life policy.

On July 29, the Senate Appropriations Committee approved (19-11) an amendment offered by pro-abortion Senator Frank Lautenberg (D-NJ) that would prevent any future president from adopting a policy against giving U.S. foreign aid funds to private organizations that promote abortion overseas. The last three Republican presidents have adopted such a pro-life policy (known as the “Mexico City Policy”) through executive orders.

Lautenberg’s proposal, which was attached to a foreign aid appropriations bill, has several additional legislative hurdles before it.

Even if the Burris and Lautenberg proposals do not emerge from Congress before the recess begins in early October, the danger is not entirely ended. Whether or not voters “fire” a substantial number of current Democratic members of Congress in the November 2 election, Democratic congressional leaders could call a “lame duck” session in November or December, during which defeated incumbents would still be allowed to vote. The most likely legislation to be considered in such a session would be controversial matters that would lack enough support to pass in the new Congress that will take office in January.

NRLC and its affiliates will be well prepared to resist any attempts by the Democratic congressional leadership to enact pro-abortion legislation by squeezing a last round of votes out of lawmakers who have already been ‘fired’ by the voters,” said NRLC’s Douglas Johnson.

Kagan Nomination

In late July, President Obama succeeded in his commitment to fill any vacancies on the U.S. Supreme Court with abortion supporters. On August 5, the Senate confirmed Elena Kagan to the seat recently vacated by pro-abortion Justice John Paul Stevens, who retired.

In a June 23 letter to the Senate, NRLC was the first group to call attention to recently released documents that demonstrated that Kagan, while on the White House staff of President Bill Clinton, had played a key role in the successful effort to prevent enactment of the Partial-Birth Abortion Ban Act during the Clinton Administration.

The documents established that “Ms. Kagan played a key role in keeping the brutal partial-birth abortion method legal for an additional decade,” NRLC said.

The NRLC letter was also the first communication to the Senate to take note of Kagan’s role in persuading officials of the American College of Obstetricians and Gynecologists (ACOG) to insert language that she wrote into a statement that ACOG later issued as a supposedly authoritative judgment on the medical aspects of partial-birth abortion. The Kagan-authored statement was: “An intact D & X [a jargon term for partial-birth abortion], however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman . . . .”

The ACOG statement, including Kagan’s covert contribution, was subsequently cited by federal judges and Supreme Court justices. The revelation regarding Kagan’s role in crafting the statement became the subject of much subsequent commentary by other Kagan critics.

Shannen Coffin, a former Justice Department attorney who successfully defended the Partial-Birth Abortion Ban Act in the federal courts, wrote on National Review Online (June 29): “Kagan’s language was copied verbatim by the ACOG executive board into its final statement, where it then became one of the greatest evidentiary hurtles faced by Justice Department lawyers (of whom I was one) in defending the federal ban.”

Former Surgeon General C. Everett Koop on July 19 issued a letter urging senators to “reject the politicization of medical science” and vote against Kagan’s nomination. “The problem for me, as a physician, is that she was willing to replace a medical statement [about partial-birth abortion] with a political statement that was not supported by any existing medical data,” Koop wrote.

NRLC Legislative Director Douglas Johnson commented, “The supposed experts at ACOG took perfect dictation from a political lawyer on the White House staff–and later, other political lawyers, wearing judicial robes, cited the dictated statement as the voice of the highest medical authority.”

(The June 23 NRLC letter can be viewed or downloaded at
KaganJune232010.pdf See also “Supreme Court Nominee Kagan Not Pro-life,” June NRL News, page 1.)

Despite such objections, on August 5 Kagan won confirmation by a vote of 63-37. This was the largest number of negative votes cast against a Democratic president’s Supreme Court nominee since the 19th century, and contrasts sharply with the 96-3 tally in 1993 to confirm Ruth Bader Ginsburg, a nominee of President Clinton.

Kagan was supported by 58 Democrats, and by five Republicans (Richard Lugar of Indiana, Olympia Snowe and Susan Collins of Maine, Judd Gregg of New Hampshire, and Lindsey Graham of South Carolina). She was opposed by 36 Republicans. and by one Democrat (Ben Nelson of Nebraska).

Last year, Obama placed Justice Sonia Sotomayor on the Supreme Court. Sotomayor, whose background indicated she can be expected to support pro-abortion legal doctrines, replaced pro-abortion Justice David Souter.

Both of the justices who retired since Obama’s election were firm supporters of abortion, so Obama’s two appointments are not likely to greatly change the way that the Supreme Court splits on abortion-related cases: A majority of five justices is willing to uphold at least some meaningful limitations on abortion, but there are also at least five justices who are unwilling to permit states to prohibit most abortions.