Religion & Law

At NRO, Yuval Levin offers an analysis of the Executive Order that Bart Stupak obtained from President Obama in return for his support for the health bill.  It is, to say the least, not reassuring.  Yuval's bottom line:  the Executive Order adds nothing to protect us from being compelled to subsidize the killing of unborn children with our tax dollars. Since the bill is going to become law, I fervently hope that Yuval is wrong.  Everything I've read from pro-life organizations, including the pro-life office of the USCCB, however, reinforces Yuval's conclusion.

I recognize that there are some people who say that the bill itself, even without the Executive Order, protects us from subsidizing abortion.  I've looked at the language, and (for reasons articulated by supporters as well as opponents of publicly funded abortion) it's clear to me that this claim isn't sound. If the Executive Order offers no protection, then all seven of the factual claims made by the National Right to Life Committee (which I posted on March 19th and have not seen credibly challenged) stand, and the bill represents, in the words of the NRLC, "the most abortion-expansive piece of legislation ever to reach the floor of the House of Representatives."

So, please, someone, tell me that Yuval is wrong. 

Here's what he says:

The Order   [Yuval Levin]

Upon first hearing there was talk of an executive order yesterday, I wondered how the administration?s lawyers thought such an order could go beyond the letter of the law in restricting abortion funding. This was a question the Bush administration examined quite extensively on several occasions, and the lawyers involved always agreed that the legal precedents from the time between the Roe decision and passage of the Hyde amendment, as well as some after the Hyde amendment, are extremely clear in stating that federal funds cannot be denied to the provision of abortion except by explicit legislative prohibition. That?s why the Hyde amendment was necessary. But the Hyde amendment wouldn?t apply to this bill, since it applies only to the annual HHS appropriations bill. Hence Stupak?s concern. So what could the White House possibly give Stupak that would not be thrown out by any federal judge in a second?

Looking at the executive order (which you can read here), the answer is clearly nothing. The executive order quite literally does nothing that the Senate bill does not already do, and it is careful to say as much. It offers a kind of narrative of what champions of the bill claim it does with regard to abortion (claims that Rep. Stupak among others has disputed for months), and then says the executive branch will make various people aware of this understanding of what the law says. It orders no action (only the usual promulgation of regulations the law requires anyway) and offers no interpretation beyond that.

If Rep. Stupak and his fellow pro-life Democrats were not satisfied with the protections against taxpayer funding of abortion in the Senate bill (as they rightly were not), there is simply nothing in the text of the order that should change their minds.