Like millions of Americans, I watched the healthcare legislation drama unfold from last summer to its catastrophic climax Sunday night. The 219 to 212 House vote approving the Senate health bill was, for this country, a before-and-after moment of epic proportion and as such it will be remembered.
What—for the umpteenth time—was wrong with the Senate bill?
Where does one begin? Most Americans will see their insurance premiums rise dramatically; it will have a devastating effect on the insurance industry; it cuts Medicare dramatically just as 7000 more Medicare-age Americans become eligible each month for those benefits. It drives up the national deficit well beyond its already dramatic and immoral levels. And it constitutes a first step toward a European style of socialized medicine—just to name a few.
Then there are the more profound philosophical problems with this bill, eloquently summarized by Rep. Paul Ryan of Wisconsin. The Senate bill, soon to become law, strikes at the very heart of the American experiment itself. This vote, noted Ryan, constitutes a choice “about what kind of country we are going to be in the 21st century.”
As to the moral hazards of the bill, Denver’s Archbishop Charles Chaput consistently reminded Americans on more than one occasion of three major ones:
[T]he current Senate version of reform fails in at least three vital areas: abortion and its public funding; conscience protections for medical professionals and institutions; and the inclusion of immigrants.
And if all that were not enough, there were–as outlined by Kimberly Stassel in Monday’s Wall Street Journal— the reprehensible 11th hour deals brokered all last week with undecided House Democrats. Of these, the most dismal was that arranged between Ms. Pelosi, the White House, Rep. Bart Stupak and his fellow pro-life Democrats. To win their votes, President Obama promised to sign an Executive Order that would purportedly assure that Hyde Amendment protections against the federal funding of abortion would trump the abortion funding mechanisms of the Senate bill.
But as Rep. Stupak and every member of Congress know perfectly well, an executive order cannot trump legislation once it has become law—that’s just plain in the Constitution of the United States which vests “all legislative powers” granted therein with the Congress, not the President.
After carefully analyzing the executive order, and echoing the assessment of most pro-life advocates, Bioethics Defense Fund Senior Counsel Dorinda Bordlee stated:
The language of the Executive Order reveals that it was a meaningless sham designed to induce the Stupak Democrats to vote 'yes' on the Senate bill that provides federal subsidies and direct funding of abortion. The Obama administration knows full well that statutory law overrides executive orders. The President acting alone cannot 'extend' the Hyde Amendment policy to new programs as the Executive Order vaguely purports to do - only the Congress can do that. A court challenge (i.e. by Planned Parenthood) would immediately invalidate the null promises of the Executive Order.
Little wonder that the executive order was not met by howls of protest from abortion proponents. To be sure, a number of them such as Rep. Diana DeGette, D-Colo., have pointed to the same Constitutional limitations of executive power. In comments on Monday, DeGette said she doesn't have a problem with the executive order because “it doesn’t change anything.”
All too true.
On a more positive and forward-looking note, there is the potential for constitutional challenges to the new law. In a Sunday Washington Post op-ed, Randy Garnett of Georgetown University neatly summarized a number of possible legal challenges to elements of the bill, for instance, to the bill’s requirement that all Americans purchase healthcare insurance or face a penalty.
And as the editors of National Review Online reminded pro-life Americans on Monday, the situation is, in fact, not hopeless. Furthermore, they proffered a landmark proposal which will undoubtedly be met by a huge and immediate groundswell of support:
Pro-lifers should campaign this fall on a pledge to make the Hyde amendment — the partial ban on government funding of abortion, which now applies to portions of federal spending and has to be renewed each year — a permanent feature of law that applies to all federal spending.
Which is to say, we have not yet seen the last act in this drama. The events of Sunday may well only portend a coming recovery of principled democratic life, which snatches future victory from the jaws of temporary defeat. Pro-lifers say “bring on the battle!”
Father Thomas Berg is a priest of the Archdiocese of New York and Professor of Moral Theology at St. Joseph’s Seminary (Dunwoodie). More of Fr. Berg’s publications are available at www.fatherberg.com.