Doerflinger at the Ramparts

It was early August in Houston, everyone’s favorite vacation spot in the high heat of summer. But it’s a place that draws engaging people, and this time it was drawing the annual meeting of the Secretariat of Pro-Life Activities of the U.S. Conference of Catholic Bishops. All of the diocesan leaders attached to that office were coming together to compare notes. The only reason I was there was that Richard Doerflinger informed me that, since I’ve now come into the Church, I was “obligated” to give the keynote talk to open this meeting. I guess that it’s rather like jury-duty for Catholics. But it is time spent with the best company.

Rich Doerflinger has become, over thirty years now, one of the leading – nay, legendary – figures in the pro-life movement based in Washington. He had come out of the University of Chicago and immersed himself in the work of the pro-life office. From there, the pressing work of the moment would always pull him away from his graduate work in moral theology at Catholic University. His genius would be applied now, intensively, in Washington. 

He would track, with minute attentiveness every piece of legislation threatening to promote abortion or compel doctors and nurses to participate in the surgery. He became a master in explaining the moral ground of the argument on abortion and the life issues, but perforce he had to master also the findings of embryology and the techniques of research on stem-cells. He would deploy those arts in trying to teach congressmen at hearings, and negotiating over the details of the bills. He was in the middle of the negotiations over national health care, trying to guide Bart Stupak until Stupak, with his supporters melting away, his position eroding, finally gave in.

In introducing me, Rich recalled a column I had done years ago for Crisis magazine, bearing what he was sure was the most “inelegant title” I’d ever written: “Doerflinger at the Dike.” The image, of course, was of this single figure, keeping back the flood of pro-abortion measures about to break out from the Clintons and their majorities in Congress. But the mention of that title now elicited a wave of deep laughter from the audience. The risqué double-meaning, never in my head, suddenly came into view. Who would have thought that such a meaning would have sprung up at once to a Catholic audience?! Point of confirmation for Austin Ruse and Helen Alvare: These are our people, and they surely are not in the faction scolding women for wearing pants. 

As part of the seminars of the meeting, Rich Doerflinger walked this group of pro-life veterans through the corridors and by-ways of that Act, as unreadable as it is falsely named, The Patient Protection and Affordable Health Care Act (aka, Obamacare). A recounting, point by point, of every opening for villainy in that Act would cause eyes to glaze over. And so it becomes ever more of a wonder that Rich Doerflinger could preserve his vigilance tracking through 2,000 pages of these deceptions. 

The Hyde Amendment, carried over from the 1970s with some changes, barred the use of funds appropriated for Health and Human Services (HHS)  to pay directly for abortions or for packages of benefits that covered abortion. Under the new Act, the Secretary of HHS was given the authority to establish certain high-risk insurance pools. The states could form pools of their own, receiving federal funds, but with “requirements determined appropriate by the Secretary.” As with other funds under Obamacare, they are not handled under annual appropriations, and so they do not come under the restrictions of the Hyde Amendment.  

It was discovered in July that Pennsylvania, Maryland, and New Mexico had designed plans that covered elective abortions. After a wave of protest, the Secretary determined that the coverage of abortion would be barred. But as Rich Doerflinger pointed out, the bitter complaint of the pro-abortion groups confirmed the deeper problem: The partisans of abortion felt wounded by their own administration because nothing in the Act itself barred the government from funding abortions. Exactly. It was all a matter of the discretion of the Secretary. And if people begin to settle in, comfortably, with the political administration of medical care, that discretion may be tipped in the other direction without the least strain. Already the courts take it as the default position that any reference to “health care” or “family planning” will not rule out abortion as a legitimate part of “reproductive care.” It requires nothing less than an explicit directive of Congress to keep the courts and the bureaucracy from acting on their inclination to extend the promotion of abortion with every lever they have at hand.

The withholding of federal funds has become the principal way for Congress to counter the courts and register the sense that abortion is not a good to be commended and promoted. But when Obamacare was enacted, it brought vast new delegations of authority, with vastly more places of discretionary authority, unguided by standards. They form the sites now for skirmishes unending over the funding and promotion of abortions. This state of affairs will not end unless Obamacare is repealed in a clean stroke, restoring the directive of Congress, once clear – and categorical in its sweep. Until that happens, it will be “Doerflinger at the Dike, Still.” Doerflinger at the Dike, ever.

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. He is the author of Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is available for download. His new book is Mere Natural Law: Originalism and the Anchoring Truths of the Constitution.