The “No Taxpayer Funding of Abortion Act” Print
By Hadley Arkes   
Tuesday, 10 May 2011

Congresswoman Louise Slaughter of New York declared that proposed legislation, now before the House, “up-ends the principle of equal rights and freedoms.” It would revert to a time when “African Americans were property; women could not vote . . . and Native Americans were pushed off their land.” And what was it that would return us to this dark age? It was the bill marked H.R. 3, the “No Taxpayer Funding of Abortion Act,” passed by the House on May 4. For Rep. Slaughter the bill “upend[ed]” a tradition of equal rights “by placing severe restrictions on the constitutionally protected right to an abortion.”

But Ms. Slaughter must have known that she was speaking the most serious untruth about that bill she was opposing. Was this cynicism, or had she and her party simply come to see the world through the slogans they have come to absorb? For she must have known that this bill did not restrict or deny the access of any woman to an abortion.

It reflected, rather, the understanding even of many people who are pro-choice on abortion: that abortion might be a private liberty or “right” under the laws fashioned by the courts, but a private liberty is not necessarily a “public good,” which deserves to be supported by public funds. The surveys have shown 60-70 percent of the public in opposition to the use of public funds to pay for abortions, except perhaps where the life of the mother might be endangered. 

Rep. Slaughter also had to know that there was nothing novel here. The refusal to endorse and support abortion with public funds has been a persisting part of our public policy since the Hyde Amendment in 1976. Or it was part of our public policy until the advent of the Obama Administration, joining a Democratic Congress.

But then everything was up in the air: Not only the Hyde Amendment, but the Hyde-Weldon Amendment to insure that doctors, nurses, and hospitals are not forced to participate in abortions if the facility receives federal funds; or the Helms Amendment, to bar the government from promoting abortions overseas; or the Dornan Amendment, to de-fund abortions in the District of Columbia. These strands of federal policy marked the strong counterpoint to the policies installed and preserved by the courts: This was the main way in which the Congress could mark the refusal to endorse the rightness of abortion, and to treat it as a thing to be averted and discouraged, not a good to be celebrated and promoted.

       Ms. Slaughter

But then to the mix came Obamacare. There would be new systems of subsidy for medical insurance public and private, to say nothing of those many islands of discretion left in the hands of new boards and commissions, with vast opportunities for mischief. All of these things had to be blocked or overcome just to restore the status quo before the rise to authority of Obama and Pelosi.  

In order to pass Obamacare and lure in that dwindling pack of pro-life Democrats, a promise was made: The president would bar the use of federal funds in abortion through an executive order. But an executive order could be changed or rescinded. Rahm Emanuel, running for mayor of Chicago, boasted that through this compromise he had managed to keep the concessions on abortion from becoming part of the “law.”

Hence the need for H.R. 3. The critics complained that the bill ran well beyond restoring the Hyde Amendment, and they were right. It would require new measures to scrub out the problems with Obamacare: With H.R. 3, people will not be able to deduct from their income taxes the money spent for the surgery of abortion. Medical plans receiving federal subsidies will have to delete the coverage of abortion if they are to continue to receive the subsidies. 

Yes, this is getting immersed in details in a way that is bound to foster mistakes and irritations, and it might have been avoided with a simpler, more decisive stroke that some of us have been urging for a long while: No organization covering abortions in their medical plans, or practicing abortions, should receive any federal funds. That kind of a measure could have been brought forward when George W. Bush was president with a Republican Congress, and it could have brought us to the threshold of the endgame on abortion.  

The critics don’t seem to realize that the Republican majority in the House is being quite fastidious in keeping to the limits of what it can accomplish with a Democratic Senate and an adversary in the White House. And so, while no federal money may fund abortions, organizations receiving federal funds will not be barred from offering medical insurance that covers abortion.  

It’s just that the policy would have to be offered in a separate plan, drawing on no federal funds. But all funds are fungible, of course. This policy makes sense only for the sake of making a limited point and trying to get a bill that can pass the Senate. The more ambitious initiative will have to await a Republican Senate and a new president who would sign the bill.

In the meantime, the bill passed by a vote of 251-175 The box score, for and against the bill: Republicans, 235-0; Democrats 16-175. The U. S. Conference of Catholic Bishops, in a lingering nostalgia for a world that has fled, heralded this “bipartisan vote.”

Hadley Arkes is the Ney Professor of Jurisprudence at AmherstCollege. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law

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