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George Weigel

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An Anniversary of Consequence

On June 30, 1980, the U.S. Supreme Court issued its decision in Harris v. McRae and upheld the constitutionality of the Hyde Amendment, which had prohibited federal funding for Medicaid abortions since 1976. Three decades later, Harris v. McRae remains the pro-life movement’s most important legal victory since Roe v. Wade created a “right to abortion” in 1973. That victory is now jeopardized by Obamacare, and by the insouciance of some Catholics about the extension of the Hyde Amendment to future federal health-care legislation.

On this 30th anniversary, therefore, it’s important to remember just what was achieved in Harris v. McRae.

First, writing for the Court majority, Justice Potter Stewart made clear that, whatever putative “right to abortion” may be found within the interstices of the Constitution, such a “right” does not imply that the federal government can compel American taxpayers to pay for the deaths of innocents. As Justice Stewart put it, “Regardless of whether the freedom of a woman to choose to terminate her pregnancy for health reasons lies at the core or the periphery of the due process liberty recognized in [Roe v. Wade], it simply does not follow that a woman’s freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices.” In plain language: any putative “right to abortion” does not carry with it the power to make me pay for abortions.

Second, the majority in the Court’s 5-4 decision accepted the Solicitor General’s argument that the Hyde Amendment is, as my friend Edward Grant has written, “rationally related to the interest we all must have in preserving nascent human life and encouraging childbirth.” In other words: pregnancy is not a disease, the choice to terminate a pregnancy is fraught with public implications, and the state has an interest in supporting the begetting and safe delivery of its future citizens.

Third, the Court rejected the plaintiff’s claims that the Hyde Amendment’s prohibition on federal funding of abortion involved an imposition of Catholic doctrine in violation of the First Amendment’s ban on religious “establishment.” In plain language: the abortion debate is not “sectarian,” but engages fundamental issues of justice in which everyone has a stake.

The heroes of this victory should also be remembered at its 30th anniversary: Congressman Henry J. Hyde; Professor Victor Rosenblum of Northwestern University, Dennis Horan, Patrick Trueman, Thomas Marzen, and other members of the legal team at the Americans United for Life Legal Defense Fund; James Buckley and Jesse Helms, who, with Congressman Hyde, entered the case as intervening-defendants. Some of the young lawyers who worked with the defense team in Harris v. McRae have continued to make names for themselves as national pro-life leaders: Carl Anderson, now Supreme Knight of the Knights of Columbus; Robert Destro, now of the Catholic University of America’s law school; and Paige Comstock Cunningham, a longtime board member of Americans United for Life. All honor to them.

Their achievement, however, is not secure. The Hyde Amendment, although deemed constitutional, still had to be re-enacted in every Congress, every year following Harris v. McRae—a fact of legislative history that raises the most serious questions about the Obama administration’s claim that the Hyde Amendment is such “settled law” that it need not be replicated in the various legislative iterations of Obamacare. The administration’s “deal” with certain Democratic congressmen to include a Hyde Amendment-type ban on abortion funding through a presidential executive order is the thinnest of barriers—some would say, a non-existent barrier—against claims that abortion is a “necessary” form of health care that requires taxpayer funding. That some Catholic members of Congress and some Catholic health-care advocates have fallen for this sleight-of-hand reflects either grave misunderstanding of the law or bad faith.

The Hyde Amendment is a continual bone in the throat of abortion advocates, who once followed Henry Hyde to Mass in their efforts to “prove” that his amendment was the product of Catholic hocus-pocus. They won’t down tools in this fight. Neither should the defenders of Harris v. McRae.

George Weigel is Distinguished Senior Fellow of the Ethics and Public Policy Center in Washington, D.C. and a member of the board of directors of Americans United for Life.

Comments:

8.11.2010 | 1:26pm
Joe says:
Obama, many supporters correctly note, 1) made explicitly and prominently sure that his new health care program, would not fund abortion.

While then too, 2) Obama should be congratulated in doing the work of Jesus: Jesus told us to help the poor and heal the sick. Indeed, "Obamacare" added a new whole component to health care, above and beyond existing a) religious and b) other private and c) existing state-sponsored health programs and hospitals. So that a d) 2009 Harvard case study suggested that at least 47,000 American lives a year will be saved, by the additional care Obama's program provided. (While others' estimate of the lives saved, is as much as ten times higher than that).

Obama and the Democrats therefore have been doing the work of Jesus; working effectively to "heal the sick." Especially,they are helping the poor; another major goal of Jesus himself. And note, their health care bill explicitly did not include funding for abortion.

What will happen to the Hyde bill? Who knows.

But the record of Omama and the Democrats, on the life issue of Health, healing the sick, has been absolutely stellar to date.

Obama and the Democrats are doing the work of Jesus; and they are doing it well.
8.11.2010 | 1:41pm
Gerry says:
Those for the protection of all preborn human boys and girls should also keep up on the latest attacks on the Hyde Amendment, including Dr. McDonagh's ideas in _Breaking the Abortion Deadlock_ (1996; http://wonderingzygoteemeritus.blogspot.com/2010/06/revised-beckwith-mcdonagh-abortion.html ) in which she argues that abortion must be paid for and available for all women who do not consent to pregnancy.
8.11.2010 | 2:59pm
I found Mr Weigel's article vitally important. As a Catholic respect life coordinator, I am hoping and praying that we can apply the Hyde Amendment to the health bill and permanently forbid all abortion funding by taxpayers. While his support for the unborn is noted, I am hoping that Mr Weigel can rethink his unfortunate support for the Iraq war, which has created so many tens of thousands of casualties and unnecessary deaths. The Vatican has been very critical of the decision by the U.S. to launch the war. As the public is starting to turn against the tragic Iraq intervention and the other foolish projects associated with a U.S. world empire, I am praying that the eloquent First Things writer would come to see this as part of the pro-life struggle.
8.11.2010 | 3:05pm
...and what Obama supporters continue to work so hard to obfuscate is that due to the language of both the bill and the executive order, if "What will happen to the Hyde bill? Who knows?" is that the Hyde Amendment is not renewed each and every year that ObamaCare is in effect, the barrier to public funding of abortion disappears with it.

"Doing the work of Jesus", indeed.
8.11.2010 | 3:38pm
Richard says:
After all these years of jousting at the pro-life political windmill you would think Weigel would finally come to the conclusion that the way to work for life is to target the hearts and minds of people, particularly women. The government doesn't do abortions. Those political hacks that call the president the most pro-abortion president in history simply don't know what they are talking about. But, in the end, I suppose, there will always be those that will be led around by power hungry bishops whose power is severely threatened these days.

Oh, and the invasion of a foreign country with the inevitable death and dismemberment - such an insignificant item when you are a righteous crusader.
8.11.2010 | 6:11pm
Maria says:
Happened to read at the blog Word Incarnate by Abbot joseph , about children in Bogota living in sewers ...a culture where drugs , violence and the hardness of heart from such have to be the the underlying issues ..

what could be the powers that restrain those who could , from doing what can be done in such situations ....in a world that can mobilise whole armies in no time !

We read of sewer music getting more into our culture ...inviting in agents that can send the posterity into real sewers like those above ...

Could this even be in God's permissive plan , to jolt many into the truth about the many children , the 40 million , who also have been sent into sewers ....

Still , we can dream too , based upon the goodness in human hearts that is still much evident ..

Mexican border centers for the poor who come seeking jobs ..where , in Benedectine style, whole families are housed and helped for 2-3 years , to become evangelisers and helpers ..for the sewer kids and more ..intense programs of prayer , fasting and instructions in the word ...for them to become powerful deliverance ministers for whole towns and localities ..

A coalition of those world around , who could arouse enough support to mobilise such ..including the blessing of the bishops ..

and intense educational programs , to warn many , of the potential internal sewers of guilt which is what many a parent is choosing for themselves , when they send what is meant to be precious , down into such ..'what you did unto the least ...' and the health bills from such choices is what could keep many parents with broken bodies and minds and their little ones in the sewers of negelct , abuse , broken relationships ... may be even the sewer music is a sequelae !

Meausres from us , to turn on the spigot of truth and mercy may be what would make the sewers more like running streams ....to douse the flaming fires of wars ..

our Mother had warned us - ' war is punishemnet for sins '....by us calling up destructive sewer rats of lies, confusion , fears ..hatred

St.Clare had the monstrance to drive away terrorists ...

May we be able to discern who are real terrorists and who are to be welcomed and nurtured !
8.11.2010 | 6:35pm
JDD says:
Joe,


1) If Obama, as he has explicitly stated, supports the right to abortion - an act which is so fundamentally and blatantly in opposition to Christian doctrine - how likely is it that he has somehow managed to get the methods for achieving all the works of mercy right?


2) Why does Planned Parenthood strongly support the Obama administration healthcare law and policy?
8.11.2010 | 7:50pm
Richard says:
Joe,

Would Jesus fight to keep open a national network of organic chop shops where people trained as healers filled garbage can after garbage can with the bloody bodies and body parts of the tiniest humans? I think not.

The work of Jesus indeed!

Mournfully,

Richard
8.11.2010 | 8:33pm
I strongly support both Harris v. McRae and Roe v. Wade, and for the same reason: Both put desperatetly needed limits on the government. Roe v. Wade tells the government, "NO, you cannot tell any woman she must bear a child;" Harris v. McRae tells the government, "NO, you cannot take one cent of any taxpayer's money to pay for an abortion." The government's needs for power and money are insatiable; we must bringing all our passion, every fiber of our being, to ensuring that it is our servant, not our master.
8.12.2010 | 11:50am
JDD says:
Charles,

The inconsistency of your comparison being that the woman has - by every scientific argument - already borne a child and will soon deliver him or her into the world.


Even the word barren means being unable to conceive - not unable to give birth.


So the life is already "in place" when Roe vs. Wade is applied - at which time government in its proper role has every duty to protect that life.


Instead, Roe vs. Wade cleared the way for government to render protection of that already existing life utterly up for grabs.
8.12.2010 | 2:12pm
JDD -

Thanks for your elegant and concise response. A check with Webster tells me that you are correct; the first definition of "bear" in this context is "to give birth to," but the second and third are close enought to "conceive" and "carry" that I have to agree with you.

So, I will borrow your words to ask a question: Do you want the government to be able to tell any woman she must deliver a child into the world, and to have the power to force her to do so? I don't. I assume you do not want anyone to be able to tell any woman who is not pregnant that she must deliver a child into the world. When a woman becomes pregnant, should the government suddenly gain vastly more power over her, namely, the power to tell her she must deliver a child into the world?

My best take on this is that we have radically different views of the relationship between us and our government. You say the government in its proper role has not the only right, but the duty, to require a pregnant woman to deliver a child into the world. Abortion sickens me to my very core, but a government with that kind of power is immeasurably worse than abortion.

Thanks again for your elegant and concise response.
8.12.2010 | 5:48pm
JDD says:
Charles,


Thank you for your compliment.


You've pointed to at a fundamental change in status (which I agree with) when you say:


"I assume you do not want anyone to be able to tell any woman who is not pregnant that she must deliver a child into the world. When a woman becomes pregnant, should the government suddenly gain vastly more power over her..."


You see the line of demarcation, and so do I. In order to answer your question, we must be in agreement on a crucial issue which separates the pro-life and pro-abortion sides: How many lives are now present after conception?


I submit there are now two lives in play, and the government now has two lives to protect. (And, as an aside, that that is neither a simply theoretical, nor a religious-only conclusion.)


I suspect we agree that the government has the right and duty to prevent a parent from harming their child after they are born. What about before?


Let me rephrase your last paragraph this way:


I say the government in its proper role (as the means through which our society regulates and protects itself) has not the only right, but the duty, to require a woman to not undertake any action which willfully kills her child.
10.1.2010 | 9:09am
Vangrouw Kit says:
...and what Obama supporters continue to work so hard to obfuscate is that due to the language of both the bill and the executive order, if "What will happen to the Hyde bill? Who knows?" is that the Hyde Amendment is not renewed each and every year that ObamaCare is in effect, the barrier to public funding of abortion disappears with it. I strongly support both Harris v. McRae and Roe v. Wade, and for the same reason: Both put desperatetly needed limits on the government. Roe v. Wade tells the government, "NO, you cannot tell any woman she must bear a child;" Harris v. McRae tells the government, "NO, you cannot take one cent of any taxpayer's money to pay for an abortion." The government's needs for power and money are insatiable; we must bringing all our passion, every fiber of our being, to ensuring that it is our servant, not our master.
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