There is hardly a need to cover that vanishingly small number of cases, for there has been no want of hospitals and clinics in California ready and eager to perform abortions under any conditions. The story more likely to be missed here is this: If the Catholic hospitals manage to stand against the “public policy of California,” it is because they have been sheltered now by the timely moves of Rep. Dave Weldon (R., Florida) and the amendment he attached to an appropriations bill in 2004. Under the Weldon Amendment, all federal funds would be withdrawn from instruments of federal, state, and local governments that discriminate against “health care providers” that refuse to provide abortions, refer patients for the surgery, or cover the surgery in their own medical plans. The political class that forms the regime now in California complains that the Weldon Amendment works to prevent California from enforcing its public policy. Yes; exactly right. And a good day’s work that is.
It is also a telling example of the kind of leverage that is available with a Republican Congress and a pro-life majority in the governing party. It is one of those advantages easily overlooked as even members of the conservative base curiously fail to notice the many places at which a Republican Congress continues to make a difference, even while it suffers the flaws of character that we can count on finding among those creatures somewhere between the beasts and the angels. But that failure to notice has apparently affected even the conservative leaders in Congress. Don’t get me wrong: On matters like cloning and the destruction of embryonic stem cells, the Republicans in Congress have shown a sensitivity that runs beyond the things we might expect from most Americans, who understandably have their own business to distract them. But we have some other mounting crises, of serious concern to the conservative base, and they could be addressed, with powerful effects, by measures quite as simple and direct as Dave Weldon’s amendment. I’ll list two or three.
The Deepening Crisis over Same-Sex Marriage
Some of us posted warnings as much as ten years ago about the extended effects of proclaiming in the law, not merely the legitimacy, but the essential “rightness,” and even the constitutional standing, of same-sex marriage. Lincoln remarked in his famous speech at the Cooper Union that if we conceded that slavery were right, then all words against it would be wrong, and may rightly be swept away.
The Supreme Judicial Court in Massachusetts established the legality of same-sex marriage, and now officers of the law at every level are drawing out the moral implications: Any justice of the peace who refuses to honor that law shall lose his commission. The public schools in many towns are now engaged in an active program to teach, even the youngest children, the rightness of the homosexual life and of families constituted by two fathers or two mothers. Mitt Romney, the governor of Massachusetts, reports the case of a father who protested over such instruction of his child. He was told by the superintendent of his local schools that the supreme court of Massachusetts had established the constitutional right to same-sex marriage, and it was the duty of the schools to instruct the children in the realities of the community in which they lived.
With the force of the same logic, the sweep of the movement reaches the churches and synagogues, as Maggie Gallagher has already noted in her tracking of these trends. In Massachusetts it could now be claimed that churches and religious schools and organizations that deny the legitimacy of same-sex marriage stand explicitly in opposition to the “public policy” of the state, established by the Supreme Judicial Court and supported now by the legislature. Those churches and religious schools may be stripped of their tax exemptions, but that is not all. One way or another, they can be denied their standing to use public facilities or even engage in public speech.
During the hearings, several years ago, on the Defense of Marriage Act in Massachusetts, one Unitarian minister expressed the view that anyone who opposed same-sex marriage was engaging in hate speech. Time has shown that he is not alone in holding those views; there are many people, especially in the universities, who are quite prepared to make use of that argument, while using the levers of authority available to them. Christian fellowships on campus may be denied the right to refuse, as leaders, openly gay students, who reject the Christian teachings that form the character of the fellowship. And of course, serious Christians and Jews are pushed into silence as they are subjected to compulsory sessions in “orientation,” instructing them on the sickness and depravity of anyone who would raise a moral argument about the homosexual life. In Ireland, priests have been warned that they could violate the laws against “hate speech” if they preach the traditional teachings on homosexuality. It is not to be assumed that this possibility is too distant from us, for the ground has already been amply prepared.
All of this may move beyond the reach of Dave Weldon, who deals with appropriations in Congress, but not with the tax code and the regulations of the IRS. But if Dave Weldon cannot leap buildings with a single bound himself, he knows the colleagues in other committees who could be summoned to the project. Even if amendments on these issues cannot get through at once, just to introduce these measures could administer a sobering lesson in alerting people to the things that need to be done. And if any of them could make it through in this session of Congress, it could offer the kind of protection that the Weldon Amendment is now offering in California. Weldon or one of his colleagues could move simply but decisively to foreclose the use of the tax code as a lever against the religious. After all, Congress frames and clarifies the provisions on exemptions in the tax code. Instead of waiting for the IRS to come forth with its own interpretation, Congress can head off the activists at the pass: Tax exemptions may not be withheld from institutions, entities, private or public, because they have refused to acquiesce in any moral endorsement of the homosexual life or same-sex marriage.
Abortions: Partial-Birth “Live-Birth”
The Supreme Court, this coming fall, will hear cases involving the federal bill on partial-birth abortion. There is reason to hope that a Court containing John Roberts and Samuel Alito will be able to flip or overturn the decision in Stenberg v. Carhart six years ago — the case in which the Court struck down the law on partial-birth abortion in Nebraska. But the outcome is by no means a sure thing. In the meantime, it seems curiously overlooked that the courts that have restrained the enforcement of the federal act have restrained only the law that forbids partial-birth abortion. It is still open to the Congress to insist that the federal taxpayer should not be made complicit in a surgery that is regarded as abhorrent by 70 to 80 percent of the public. If abortion is a “private choice,” it is not necessarily a “public good,” which deserves to be publicly funded. Rick Santorum of Pennsylvania brought in a rider on this point last year, and he should do it again: The Congress may move simply to withhold federal funds from any hospital or clinic that houses this brutal surgery.
The argument will no doubt be sounded that the Congress is trying here to achieve indirectly what it cannot achieve directly: It is trying to use its spending power to legislate against abortion, when there is a serious possibility that the congressional act on partial-birth abortion will be struck down as unconstitutional. But if that argument is used, the Democrats step into a trap at two levels:
The Republicans may simply fall back on the Born-Alive Infants’ Protection Act (2002), the act that forbids the withholding of medical care from a child who survives an abortion. Since the passage of that act, even the drafters have been surprised to discover just how widespread is the practice of “live birth abortion,” the practice of delivering a child whole and then simply placing the baby in the Refuse room of the hospital, left there to die. In contrast to the bill on partial-birth abortion, not a single Democrat voted in opposition to the Born-Alive Infants’ Protection Act. Nor has anyone even suggested that this act is unconstitutional. And in contrast to the Bob Jones case, we have here a real statute of the United States: it is truly against the public policy of the United States to withhold care from a child who survives an abortion. The Congress would be on firm ground in withholding funding from any institution that houses this “procedure,” and while we are at it, this telling item could be added to the list for the IRS in dealing with tax exemptions. Every hospital and clinic in the country benefits from tax exemptions, and the withholding of tax exemptions for hospitals that do live-birth abortions could provide one of the most powerful levers for the pro-life cause.
The Democrats would be compelled to resist. For what is at stake for them, in the withholding of federal funds, is the device by which the federal authority has been extended over the past 40 years in accord with the reach of the liberal agenda. If the Democrats do not resist, that whole scheme, so critical to the regime of liberalism, could come unraveled. And yet if they do resist, they put themselves at odds with a policy that commands strong support among the American public, including that of people who call themselves pro-choice. Even people who accept the legality of abortion have drawn the line at partial-birth abortion and live-birth abortions, and they have no particular passion to see abortions funded with money drawn from taxpayers. For the Republicans this is a win-win proposition: It is a move that is gentle, moderate, limited, and yet it promises to propel the Democrats into tensions and divisions that can only be crippling, never healing. The enduring mystery is just why these political moves, so simple, promising a real yield, have not been done over the past two years.
The mystery is deepened when it is put alongside the vast accomplishment of Dave Weldon, with a measure quite as simple as his amendment. And so the question to Weldon and his colleagues, like Sam Brownback: You did it before, why won’t you do it again? Why won’t you do it now, when it would avert some pressing dangers, advance a genuine good, and when you have, in your hands at this moment, the means to do it?
– Hadley Arkes is the Ney Professor of American Institutions at Amherst College and a fellow of the Ethics and Public Policy Center in Washington, D.C.