After months of insisting that health care reform does not and will not include federal funding for abortion, President Obama is now considering issuing an executive order, after passage of the health care reform bill, that will state that the legislation does not include funding for abortion. [FJB: President Obama did issue the executive order on Sunday, see here]
However, if the bill excludes federal funding for abortion, why is an executive order necessary?
The answer, of course, is that President Obama and the Democratic leadership know that the Senate health care reform bill includes subsidies for insurance plans that cover abortions, could possibly lead to abortion coverage mandates for insurance companies, and does not prevent other funds in the legislation from directly paying for abortions.
The question then becomes, can an executive order correct all of the abortion-related problems in the bill?
The answer is a resounding no. While a carefully worded executive order might be able to take care of some of the mandate concerns, it cannot correct all of the abortion-related problems with the bill. A statute cannot be undone by an executive order or regulation. For example, an Executive Order cannot prevent insurance plans that pay for abortions and participate in the newly-created exchanges from receiving federal subsidies, because this allowance is explicitly written in the bill.
The fact that statutes cannot be overridden by executive orders or regulations has been repeatedly affirmed by the United States Supreme Court. In 2006, the Supreme Court struck down an executive order issued by President Bush to invoke military commission jurisdiction over Hamdan because Congress had impliedly prohibited this action. Hamdan v. Rumsfeld, 548 U.S. 557, 579-80 (2006).
Further, Executive Orders can be undone or modified as quickly as they are created. In spite of the fact that the American people overwhelmingly do not want to see their tax dollars go toward abortion, we continue to see restrictions on federal funding for abortions reduced to executive orders, appropriations riders, and regulations. The majority of Americans want to see a prohibition on federal funding for abortion included in permanent, statutory law.
Congress failed to deliver a statutory prohibition on abortion funding in health care reform, and an executive order cannot do the job.
William Saunders is senior vice president of legal affairs for Americans United for Life Action.