By Clarke Forsythe
Originally published at National Review Online on June 20, 2016
When Donald Trump commented that “the laws are set” on abortion, he articulated a profound misunderstanding of the legal realities of the issue and the impact they will have on the next president of the United States. The laws on abortion have not been “set” since the Supreme Court nationalized the issue with its 1973 edict in Roe v. Wade. And, in fact, the Obama administration has spent the past seven years federalizing matters of life through Obamacare and other administrative maneuvers, and doing what it can to thwart health and safety standards that protect women and to increase taxpayer funding for abortion. There is much a President Trump could and should do to do to reverse this disastrous course, and conservative leaders must make that clear during their much-anticipated meeting with him in New York on Tuesday.
Here is a short list of ways an engaged president could protect life.
THE SUPREME COURT & FEDERAL JUDICIAL APPOINTMENTS
The nomination of Supreme Court justices is among the most consequential powers a president has, as the current dispute over Merrick Garland proves. The next president will, for better or worse, shape the Supreme Court for the next quarter century. By next January, three of the eight sitting justices will be 80 or nearly 80, meaning that, along with the vacancy left by Antonin Scalia’s death, the next president may ultimately appoint as many as four justices.
The essential issue at stake is protecting self-government: When the Supreme Court goes beyond enforcing the Constitution as understood by its text, structure, and history, and takes policy issues away from the people, the right of self-government is stolen. The cause of life is best served when law and policy are left to the democratic process rather than being hijacked by the courts, because the American people increasingly support the protection of human life, especially at the state level.
It is long past time for the Supreme Court to return the issue of abortion to the states by overturning the reckless Roe decision, which legalized abortion for any reason at any time of pregnancy in all 50 states, isolating the U.S. as one of only four nations — out of 195 around the globe — that allow abortion in all circumstances after fetal viability. As documented by poll after poll, and the action of state after state over the past decade, the American people clearly want fewer abortions. And yet the Court seems poised to stamp out state limits and health and safety regulations that are supported by the majority of voters, perpetuating the issue rather than resolving it.
FIVE-MONTH LIMIT ON ABORTIONS
Common-sense limits on abortion have been stymied by the threat of vetoes by President Obama. These limitations are supported by a majority of Americans and should be signed by the next president.
Last year, for example, the U.S. House passed a prohibition on abortion after five months. The bill also received a majority vote in the U.S. Senate, although it fell short of the 60 votes needed by Senate rules. Since 2007, at least 16 states have passed similar five-month abortion prohibitions. These laws are necessary to protect both unborn children and women themselves from dangerous late-term abortions. Peer-reviewed medical studies document the risk to women’s mental and physical health from late-term abortions. A clear legal limit (instead of the Court’s vague viability rule) is needed to mitigate this danger, and is supported by nearly everyone but Planned Parenthood.
NO TAXPAYER FUNDING OF ABORTION
Millions of Americans are opposed to the use of their tax dollars to pay for abortion. The Hyde amendment — which many wrongly think prevents all federal funding of abortion — does not apply to the Affordable Care Act, or comprehensively across the federal government, and is an annual rider rather than a permanent law.
The next president should sign the No Taxpayer Funding of Abortion Act, which would establish a government-wide statutory prohibition on abortion funding. This approach would reduce the need for numerous separate abortion-funding policies and ensure that no program or agency is exempt from this important safeguard, making the Hyde amendment comprehensive and permanent.
ENFORCEMENT OF FEDERAL CONSCIENCE-PROTECTION LAWS
Federal laws purport to protect the freedom to practice medicine without participating in abortion and the freedom not to pay for abortion or provide abortion coverage. Congresses and presidents of both parties have approved these conscience-protecting laws for decades. But the lack of appropriate redress for those who are robbed of these rights hamstrings the effectiveness of the laws that are supposed to protect them.
Nurses such as New York’s Cathy DeCarlo should never be forced to participate in a late-term abortion. The clear harm DeCarlo suffered from forced abortion participation was only compounded when she had to wait for years for the HHS Office for Civil Rights to potentially take up her cause. The lack of consistent enforcement can discourage victims from pursuing vindication of their rights, and weaken incentives to follow the law. The ongoing failure of the HHS Office for Civil Rights to address California’s illegal abortion-coverage mandate — a clear violation of the Weldon amendment — highlights the seriousness of the problem.
The next president should ensure timely enforcement of federal conscience-protection laws by HHS, and strengthen these laws by signing legislation, such as the Conscience Protection Act of 2016 (introduced in both the House and Senate), to provide a clear right for victims of illegal coercion to bring their own lawsuits. A private right of action more effectively deters coercion and, crucially, would ensure that protection of the fundamental right to provide care for patients without being required to participate in life-destroying and unethical activities does not hinge on the agenda of whoever occupies the White House.
REPEAL & REPLACE THE AFFORDABLE CARE ACT
Numerous anti-life and anti-conscience provisions are woven throughout the Affordable Care Act (ACA). For seven years, the Obama administration has vehemently pushed abortion-on-demand through its signature health-care law, which compels citizens and employers to violate their consciences through subsidies of the procedure. The Health & Human Services (HHS) mandate, which forces employers to provide abortifacients (and contraceptives) through their employee health plans, is only the most prominent example of the ACA’s radical anti-life intent.
The next president should support repeal of the ACA and promote, sign, and implement replacement bills that respect life: legislation that expressly prohibits funding for abortion and abortion coverage; that does not mandate coverage for other life-ending drugs and devices; that provides comprehensive conscience protections; that does not mandate or encourage the withholding, withdrawal, or curtailment of effective life-sustaining treatment to the elderly, terminally ill, chronically ill, disabled, or other vulnerable persons; and that does not place restrictions on the states’ ability to enact and enforce legislation that protects and affirms life.
DISENTANGLE TAXPAYER-FUNDED PROGRAMS FROM PLANNED PARENTHOOD
Since October, the House Select Committee on Infant Lives has been investigating Planned Parenthood’s harvesting, trafficking, and sale of tissue from aborted children. By January, the committee should issue its report on these practices, including whether they violate five separate federal laws or whether the laws need to be amended to effectively punish the unethical practices they were intended to prevent.
But trafficking infant body parts is not the first and only scandal that should disqualify Planned Parenthood from receiving taxpayer dollars. Audit reports and whistleblower lawsuits from across the country have documented a pattern of abuse of taxpayer-funded programs by Planned Parenthood affiliates.
In a time of a massive federal deficits that threaten the future economic security of every American, the largest abortion provider in country, Planned Parenthood, should not be receiving 538 million tax dollars from federal and joint federal-state programs. Those taxpayer dollars would be better spent on community health centers or state and local health departments that can provide comprehensive care.
In addition to signing the No Taxpayer Funding for Abortion Act, the next president should commit to ensuring a genuine separation of taxpayer dollars from the abortion industry. The Obama administration’s Centers for Medicare and Medicaid Services (CMS) has repeatedly blocked states from disentangling their Medicaid programs from abortion providers. Relying on CMS’s flawed interpretation of Medicaid’s “free choice of provider provision,” courts have held states hostage to funding the abortion industry with both federal and state taxpayer dollars. The next president should issue a correct interpretation of the Medicaid statute, allowing states to preserve the integrity of their Medicaid programs.
The next president should also direct HHS to issue new regulations for Title X, returning that federal funding stream to the rules that governed it during the Reagan era, which required that all funding recipients maintain a physical and accounting separation from all abortion, abortion-counseling, and abortion-referral activities. The Supreme Court’s 1981 Rust v. Sullivan ruling determined that these regulations are constitutional and “amply justified.”
The next president should also reinstate the Mexico City policy and enforce the Helms amendment, measures that ensure our tax dollars are not supporting and promoting abortion in other countries.
RESTORE HEALTH AND SAFETY REGULATIONS FOR ABORTION-INDUCING DRUGS
Abortion-inducing drugs pose serious health and safety concerns to women and girls by inducing a hemorrhage. This year, Obama’s Food & Drug Administration (FDA) rescinded safety regulations governing the use of chemical abortions across the country. These changes extend the use of chemical abortion further into pregnancy (when it has greater complication rates), promote its unsupervised use at home, and rescind physician oversight, all of which increase its health risks for women.
This is one of many attempts by the Obama administration to undermine state abortion limits and expand the 1 million abortions performed in America each year. It should be reversed immediately by the next president to protect women from the significant risk of hemorrhage. The FDA’s approval of RU-486 (Mifeprex®, mifepristone) should also be reconsidered, given that drug’s known dangers to women.
ACCURATE DATA ON ABORTION AND ITS RISKS
The Supreme Court legalized abortion nationwide in 1973 without any adequate federal mechanism or agency to accurately and comprehensively track abortions, their complications, or deaths. The annual number of abortions recorded annually by the Centers for Disease Control (CDC) is merely an estimate. That public-health vacuum has continued for 43 years. Congress needs to pass, and the next president needs to sign, a national abortion-data-reporting law that comprehensively collects and reports abortion data. Many countries collect and report better data on abortion than the U.S. Without accurate data, women undergoing abortion cannot be fully informed of the procedure’s risks, and thus cannot truly give informed consent.
THE BORN-ALIVE ABORTION SURVIVORS PROTECTION ACT
Congress passed the Born Alive Infants Protection Act (BAIPA) years ago, to ensure that every child who survives an abortion is protected by the law. But the bill was passed without effective enforcement mechanisms, and congressional hearings and other studies have found that it is not completely effective. New enforcement mechanisms and penalties need to be adopted by Congress and signed by the next president.
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This list is not definitive. It offers just some of the policies that the next president should prioritize to protect human life. They are achievable, and they are supported by a majority of the American public. They represent the kind of pro-life agenda that should be prioritized from Day One in any administration. All that is required for them to become reality is a president committed to using his powers for the affirmation of a culture of life that respects both mothers and their unborn children.
This is not merely a domestic agenda; the U.S. president’s influence in protecting human life is long-lasting and international in scope. The example that the U.S. sets domestically — and in our international priorities, including the kind of aid and assistance we choose to offer the world’s most vulnerable people — has real, tangible consequences for those beyond our borders. Inspired by American tradition going back to the soaring words of the Declaration of Independence, guided by constitutional text, reinforced by American public opinion, and based on the public policy established by the states and federal law, the next president can establish a legacy of protecting the unique dignity of human life that will shape the 21st century and help to reverse negative trends across the world.