Matt Bowman: New federal court ruling demonstrates folly of President’s order restricting funds for abortion

ADF Attorney Matt Bowman

By Matt Bowman, Esq.
Alliance Defense Fund Legal Counsel

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A federal decision issued this week illustrates the danger of believing that the President’s executive order on health reform will prevent federal funds from being used on abortion.

Some members of Congress say that they voted for the health reform law because the President’s executive order directs Health and Human Services, in some narrow ways but not in others, to refrain from spending federal money on abortion. Pro-lifers instead contend–and abortion advocates agree –that the order does not and cannot change the statute’s approach to abortion funding.

In one particularly disputed clause, the order directs HHS not to disperse $11 Billion in “community health center” funds for abortion, even though the statute directs those funds to include comprehensive Ob/Gyn care while containing no restriction that the money not fund abortion. The funding is so massive that it could give away every abortion in America for free for 18 years.

But a Massachusetts judge’s decision this Monday illustrates the folly of trusting an executive order on abortion over an unlimited statute. The case of the ACLU v. Sebelius involves Congress’ Trafficking Victims Protection Act. Since 2001 the Act has ordered HHS to spend about $10 million yearly to “expand benefits and services to victims of severe forms of [sexual] trafficking.” HHS agreed, however, to disperse the money in such a way that the money could not be spent on abortion or contraception.

The ACLU sued HHS, arguing that the statute’s funding for victim services can’t exclude abortion or contraception. This week, the judge denied HHS’s motion to dismiss and ordered the case to proceed.

The case isn’t finished, and hopefully, through a lot of effort by pro-life legal organizations, the case can be won so that the funding need not go to abortion and contraception. Any number of issues, particular in the hands of HHS, could lead to either a win or a loss.

But the case does illustrate several truths. If the statute had directed or even authorized HHS to exclude abortion from the spending, there would be nothing to challenge. But a mere executive branch decision not to fund abortion under such a statute is simply a legal challenge waiting to happen. And the federal courts are not only ready to hear those challenges, they are eager to rule in favor of abortion advocates.

The problem with relying on the President’s executive order on abortion in health reform isn’t simply that it can be revoked (although that is a big problem). The problem is that an executive order can’t trump the statute it is interpreting. Nor should it be relied on in the face of courts that combine flexible statutory interpretation with generous views of “abortion rights”.