By Jennifer Popik, NRLC Federal Legislative Director
Editor’s note. This appears on page one of the January edition of National Right to Life News which you received today. It’s an important story from an important issue which I hope you will read in its entirety and pass along to your pro-life family and friends.
As we start the 117th Congress, Democrats will control both the House and Senate by the slimmest of majorities. Even with a smaller Democrat majority in the House and equally divided Senate, Democrats are expected that push to expand abortion fast and furious.
Pro-lifers in and out of Congress are already preparing to fight this onslaught with all the tools at their disposal.
In the House, there are 222 Democrats, 211 Republicans, and 2 vacancies. In a particularly bright spot, the incoming Republican members include 18 new pro-life women. In the Senate, there will be 50 Democrats and 50 Republicans and pro-abortion Vice President-elect Kamala Harris would serve as a tie-breaking vote. This means that fellow pro-abortionists Sen. Chuck Schumer (D-NY) and House Speaker Rep. Nancy Pelosi will largely control what legislation comes to the floor — and we expect the abortion issue to be a high priority.
While it is anticipated that the incoming Biden Administration will seek to use executive orders to and rulemaking to make quick work of undoing pro-life gains, there are significant and far-reaching battles coming in Congress as well.
While a simple majority is all that is needed to advance legislation in the House, legislation that is not strictly fiscal currently needs 60 votes in order to avoid a filibuster in the Senate. It is uncertain at this time if the Senate would change that long-standing rule to only require a simple majority.
One of pro-life President Donald Trump’s first acts in office was to restore (and later expand) the Mexico City Policy, which prevents tax funds from being given to organizations that perform abortions or lobby to change abortion laws of host countries. The Trump administration also cut off funding to the United Nations Population Fund because of that agency’s involvement with China’s forced abortion program. We can expect pro-abortion President-elect Joe Biden to move to undo these gains immediately.
Domestically, the Biden administration may roll back the protections for conscience rights of people who do not want to pay for, participate in, or perform abortions. Additionally, the Title X family program regulation that under the Trump administration required recipients not to co-locate with abortion clinics or promote abortion will certainly face elimination It is also expected that the FDA would eliminate what few restrictions there are on distributing chemical abortion pills, as well as loosen restrictions on fetal tissue research. This list is merely a sample of the damage the new Administration is expected to do.
President Trump had pledged “to veto any legislation that weakens current pro-life federal policies and laws, or that encourages the destruction of innocent human life at any state.” With the incoming Biden administration, we are a far cry from that. Joe Biden has embraced the Democrat party’s platform of unlimited abortion on demand through birth.
Legislative fights are expected on numerous items, including the ERA (Equal Rights Amendment) and the “Equality Act,” and, potentially, health care.
Both houses of Congress are likely to vote on measures that are intended to insert the language of the 1972 Equal Rights Amendment into the Constitution. Many ERA advocates claim that Congress can now accomplish this by simple majority votes in Congress, although most authorities on the constitutional amendment process say the ERA expired decades ago.
The issue is very important, because there is now broad agreement between key pro-life and pro-abortion groups that the language of the 1972 ERA could be employed by federal judges to reinforce and expand “abortion rights.” If the courts accept the understanding that a law limiting abortion is by definition a form of discrimination based on sex, and therefore impermissible under an ERA, the same doctrine would invalidate virtually any limitation on abortion, including late abortions, and require government funding of abortion. For background on this issue see www.nrlc.org/federal/era/
Another measure, the so-called “Equality Act,” as with the ERA, ranks as one of the most pro-abortion pieces of legislation to ever be voted on in the House of Representatives. Despite being billed as legislation dealing with sexual orientation and gender discrimination, the “Equality Act” contains language amending the Civil Rights Act of 1964 that could be construed to create a right to demand abortion from health care providers. It also would likely place at risk the authority of state and federal government to prohibit taxpayer-funded abortions. If enacted, this legislation could be used as a powerful tool to challenge any and all state limitations on abortion.
One of the other critical fights we will face this congress is over the popular and decades-long Hyde Amendment which prevents taxpayer funding of abortion, with limited exceptions.
Joe Biden supports using tax dollars to pay for abortion and now says that the supports elimination of the Hyde Amendment. Additionally, House Speaker Pelosi has publicly endorsed the push to do away with the Hyde Amendment this year.
On December 10, 2020, she told reporters, “I myself have been an opponent of the Hyde Amendment long before I came to Congress, so I would be receptive to that happening…It’s long overdue, getting rid of it, in my view.”
In fact, as one of their last hearings in the 116th Congress, Democrats took aim at the Hyde Amendment. A hearing in an Appropriations LHHS Subcommittee entitled “The Impact on Women Seeking an Abortion but are Denied Because of an Inability to Pay,” focused on eliminating the Hyde Amendment.
Pro-abortion Rep. Rosa DeLauro (D-Conn.), who is set to chair the powerful House Appropriations Committee, said next year that the House intends to eliminate the Hyde Amendment.
What is the Hyde Amendment and why is it so critical?
After Roe v. Wade was handed down in 1973, various federal health programs, including Medicaid, simply started paying for elective abortions. By 1976, the federal Medicaid program was paying for about 300,000 elective abortions annually, and the number was escalating rapidly. On September 30, 1976, an amendment by pro-life Congressman Henry Hyde (R-Ill.) was enacted that prevents federal Medicaid funds from paying for abortions.
Congressman Hyde offered his limitation amendment to the annual Health and Human Services appropriations bill, to prohibit the use of funds that flow through that annual appropriations bill from being used for abortions. In a 1980 ruling (Harris v. McRae), the U.S. Supreme Court ruled, 5-4, that the Hyde Amendment did not contradict Roe v. Wade.
The Hyde Amendment is widely recognized as having a significant impact on the number of abortions in the United States, saving an estimated two million American lives. The Hyde Amendment has proven itself to be the greatest domestic abortion-reduction measure ever enacted by Congress. Additionally, 60% of Americans, or more, have consistently opposed taxpayer funding of abortion.
In the years after the Hyde Amendment was attached to LHHS appropriations, the remaining appropriations bills, as well as other government programs, were brought into line with this life-saving policy.
The fight on the Hyde Amendment will not only be over funding bills but also on any bills that expand or create new healthcare benefits. For example, prior to the time Barack Obama was elected president in 2008, an array of long-established laws, including the Hyde Amendment, had created a nearly uniform policy that federal programs did not pay for abortion or subsidize health plans that included coverage of abortion, with narrow exceptions. Regrettably, provisions of the 2010 Obamacare health law ruptured that longstanding policy. The Obamacare law authorized massive federal subsidies to assist many millions of Americans to purchase private health plans that have covered abortion on demand.
There is abundant empirical evidence that where government funding for abortion is not available under Medicaid or the state equivalent program, at least one-fourth of the Medicaid-eligible women carry their babies to term, who would otherwise procure federally-funded abortions. Some pro-abortion advocacy groups have claimed that the abortion-reduction effect is substantially greater –one-in-three, or even 50 percent.
Despite slim pro-abortion majorities in the House and sharply divided Senate, the coming fight on abortion will be long and difficult. Effective opposition will rely on the hard work of pro-life members of Congress and the pro-life grassroots.