Bart Stupak has just announced that he will vote in favor of healthcare reform. He will do so on the basis of a promise from President Obama to sign an executive order barring federal funding of abortion. You can read the executive order here.
I’ve read the executive order. I’m no lawyer, but the order does appear to uphold the standards of the Hyde Amendmentâ€”a legislative provision barring the use of federal funds to pay for abortions. I think that is a good thing, but I am still not satisfied with this agreement.
An executive order only lasts as long as the sitting president’s tenure and resolve to keep it in effect. The next President, whoever that is, can rescind this order if he so pleases. If something were to happen to President Obama (God forbid) and Vice-President Biden were to take office, President Biden could rescind this order. If a new president is inaugurated in 2013, that president could rescind the order. Or even 20 years from now, long after the players in the current healthcare debate are gone from office, that future president could rescind this order. If or when it gets rescinded, this bill will allow federal funds to be used for abortions. The problem is the bill.
I cannot explain why Bart Stupak has gone along with this solution. At best, the solution can only be temporary one. In the press conference, one reporter asked Stupak how he knows that President Obama will keep the order in effect. All Stupak could say was that he had the President’s personal assurance that he would keep it in effect. I’m sure that the President is sincere. But hasn’t Stupak thought through the fact that the next president owes pro-lifers no such assurance? I don’t see this as a solution, and I don’t see why Stupak does.
Andy McCarthy has pointed out another problem with this agreement. I quote him at length:
“That EOs can be rescinded at the president’s whim is of course true. This particular EO is also a nullity â€” presidents cannot enact laws,Â the Supreme Court has said they cannot impound funds that Congress allocates,Â and (as a friend points out) the line-item veto has been held unconstitutional, so they can’t use executive orders to strike provisions in a bill. So this anti-abortion EO is blatant chicanery: if the pro-lifers purport to be satisfied by it, they are participating in a transparent fraud and selling out the pro-life cause.”
If McCarthy is right, then this order won’t prevent what Stupak thinks it is preventing even during the tenure of President Obama. Once again, I don’t see how this is a solution. What a shame if in the end Stupak unwittingly sells out the pro-life cause.
It’s actually worse than that. An Executive Order cannot alter legislative language. Which means if the current bill, as it stands, provides for funding of abortions (as Stupak himself has been insisting), then this Executive Order does nothing. It’s a meaningless statement. The courts won’t uphold it, so all it will take is a court challenge. And that’s assuming that Obama himself doesn’t rescind it in the near future.
The non-binding nature of the order is why the pro-choice caucus is silent about it. They know it’s a fig leaf and will wait until Obamacare passes and then get it rescinded.
Pro-abortion representatives were threatening that if Stupak got what he was asking for, up to 50 Democrats would walk away from the Health Care Bill.
If this executive order had any meaningful impact, wouldn’t it stand to reason that at least some of those 50 abortion advocates would change their vote from “yes” to “no”?