Wednesday, March 31, 2010

What is really in The Executive Order - or not: SHOCKING!


We are very fortunate to have the excellent analysis below, done for us by one of our local lawyers. You may also want to check the USCCB website for their fine analysis.

When you read our analysis, I think you will agree with me that President Obama never intended to restrict one penny of money for abortion and everyone knew it.  It doesn't matter whether the Executive Order would stand because there is nothing in it.  See what you think.

We are so grateful for the chance to share our analysis with you!  Anne



Brief Legal Analysis of Presidential Executive Order on Abortion


Pro-Life Legal Defense Fund & Massachusetts Citizens for Life

March 30, 2010


Footnoted Version


In a recent column published in the Washington Post[1] and other newspapers around the country,[2] Rep. Bart Stupak claims that President Barak Obama's March 24th executive order on abortion would ensure that the Hyde Amendment's restriction on federal funding of abortion "would apply to the health care reform bill."  He does not quote any specific language in the order to support this assertion nor can he since there is none. 


The executive order has four sections but only two directives.[3]  The first directive concerns bookkeeping matters.[4]  The second directive, beginning with the words "I hereby direct," only requires federal agencies to comply with "existing law" on abortion funding.[5]  The sentence in question reads in full:  "I hereby direct the Secretary of HHS [Health & Human Services] to ensure that program administrators and recipients of Federal funds are aware of and comply with the limitations of abortion services imposed on CHCs [community health centers] by existing law."


Just before this sentence the order states, not as a directive, but as an observation of a supposed fact, that "Under the Act [the new reform bill], the Hyde Amendment shall apply to the authorization and appropriations of funds" for community health centers.[6]  This is what is known in non-technical terms as a head fake.  By referring only to the reform bill, and not to the President's own executive authority (by using words such as "I direct"), this statement is not expressly and independently imposing an executive ban on abortion funding but only claiming that the reform bill contains such a ban. 


If the President had intended to ban abortion funding separately, then he would have written "I direct that no funds authorized by the Act be used for abortion" or "that the Hyde Amendment shall apply to the Act."  No such language is included in his order. 


While those who argue that the President's executive order cannot be enforced if it conflicts with the statute it is implementing are correct, they give too much credit to the President.[7]  As made clear by the way his order is carefully worded, he did not intend to issue a separate and more expansive executive ban on abortion funding than authorized in the new reform bill, and his order should not be characterized as attempting to do so.


Rep. Stupak refers in his column to a brief exchange between him and Rep. Henry Waxman on the floor of the House during the debate on the reform bill, called a "colloquy."   Colloquies are devices for putting congressional intent for legislation into the official record.  Rep. Stupak claims the colloquy made clear that "the provisions of the bill, combined with the executive order" would "further protect against federal funding for abortion."[8]


However, in the actual exchange during the debate as recorded in the March 21st Congressional Record,[9] Rep. Stupak stated only that "the intent behind this legislation and the Executive Order . . . is to ensure that, as is provided for in the Hyde Amendment, that health care reform will maintain a ban on the use of Federal funds for abortion services. . . ."  Using the verb "maintain" instead of "expand" or "extend" is a significant word choice.  Rep. Waxman replied in like manner, agreeing only that the intent of the bill and the order "is to maintain a ban on Federal funds being used for abortion services, as is provided in the Hyde amendment."


The only assurance that opponents of abortion funding can derive from this colloquy is that the reform legislation and executive order will not repeal current bans on abortion funding.  However, avowing an intent to "maintain" current bans by not interfering with their present scope is not the same as expressing an intent to expand the scope of existing bans to apply to new authorizations.


No one opposed to federal funding of abortion has ever claimed that an intent to repeal existing protections was at issue with the final version of the reform bill.  Yet, supporters of abortion funding have fought against including an express new ban in the bill.  Their concern would be heightened by the fact that Rep. Stupak, who had been insisting on amending the bill to do just that, was now supporting the bill after the President announced his order.  It thus appears that the only real purpose of the colloquy is to signal to abortion rights supporters that no such expansion of existing bans was intended.


The reform bill authorizes billions of new funds for the community health centers[10] but no language can be found in the new bill that restricts these new funds or that otherwise refers to and incorporates the Hyde Amendment.  The language of the Hyde Amendment only applies to funds authorized under older and different laws and thus by its own terms cannot apply to the new law.[11] 


The reform bill requires the new funds for the centers to be used for obstetrical and gynecological procedures.[12]  Under similar laws in the past the courts have ruled that pregnancy-related funding mandates must include abortion services when Congress does not expressly ban their use for abortion.[13] 


Thus "existing law" contains no ban on the new funds authorized by the health care reform bill.  Instead, taking into account the legal force of prior court rulings, "existing law" mandates that abortion be funded when not explicitly banned.[14]  Consequently, in ordering federal agencies only to comply with "existing law" without expressly banning the new funds from being used for abortion, the executive order locks into place a new abortion funding mandate in the health reform plan.


Pro-Life Legal Defense Fund, based in Massachusetts, provides legal assistance dedicated to the protection of human life and Massachusetts Citizens for Life is the oldest and largest right to life advocacy group in the Commonwealth.

[1] Bart Stupak, Why I Wrote the 'Stupak Amendment' and Voted for Health Care Reform, Wash. Post, Mar. 27, 2010, at A13, available at

[2] E.g., Bart Stupak, Why I Wrote the 'Stupak Amendment' and Voted 'Yes', Fort Wayne Journal Gazette, Mar. 29, available at

[3] Barak Obama, Executive Order: Ensuring Enforcement and Implementation of Abortion Restrictions in the Patient Protection and Affordable Care Act (Mar. 24, 2010), available at

[4] Section 2 (directing Office of Management and Budget and Health and Human Services to develop guidelines for setting up procedures to comply with requirement of segregating abortion premium funds from federal funds used to subsidize premium payments).

[5] Id. at Section 3.

[6] Id.

[7] See, e.g., Kathleen Parker, Stupak's Fall from Pro-Life Grace, Wash. Post, Mar. 24, available at (characterizing presidential order as promising to ban use of health care reform funds for abortion, and calling such a promise "useless").

[8] Stupak, Why I Wrote the 'Stupak Amendment', supra note 1.

[9] 156 Cong. Rec. H1859-60 (daily ed. Mar. 21, 2010) (statements of Reps. Stupak & Waxman).

[10] Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 10503 (2010) (creating Community Health Center Fund and authorizing the appropriation of a total of seven billion dollars from 2011 to 2015 to this fund to "enhance" the funding of the community health centers).

[11] See Douglas Johnson, National Right to Life Comm., Memorandum to Interested Persons, Senate-Passed Health Bill [H.R. 3590] Opens Door to Direct Funding of Abortion Without Restriction to 1,250 Community Health Centers, available at

[12] Id. citing 42 U.S.C. 254b (defining "required primary health services" to be provided by community health centers as including "health services related to . . . obstetrics, or gynecology").

[13] See Letter regarding Abortion Coverage in the Senate Health Care Bill to Rep. Bart Stupak from Prof. Robert A. Destro (Mar. 20, 2010), available at

[14] See Anthony Picarello & Michael Moses, United States Conference of Catholic Bishops, Legal Analysis of the Provisions of the Patient Protection and Affordable Care Act and Corresponding Executive Order Regarding Abortion Funding and Conscience Protection 4-6 (Mar. 25, 2010), available at



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