Don’t Ignore the Federal Levers on Abortion

W hen the Supreme Court swept away the restrictive laws on abortion in the states in 1973, it made abortion the ongoing business of the federal courts, and a poison in our national politics. The Court also assumed for itself a monopoly of the authority to shape the laws on abortion, state and federal. With the decision in the recent Dobbs case, the Court has returned this matter to the political arena in the states. And yet it’s a trick of the eye to see no role for the federal government any longer on this issue.

Even before Roe v. Wade, as Professor Gerard Bradley of Notre Dame has pointed out, abortion was very much the business of the federal government when it came to abortion in military hospitals, diplomatic outposts abroad, and the governance of the District of Columbia and the territories. These levers of authority remain in place, and the decision in Dobbs does not entail a decision to bar abortion in any of these places within the reach or influence of federal authority. From reports I’ve read, I gather that virtually every hospital in this country receives some key funding from the federal government. The pro-lifers, when in control of Congress, never made the move to bar abortions from all hospitals and clinics receiving federal aid. The famous Hyde Amendment, introduced in 1976, barred public funding of abortions (except in the cases of rape and incest, and when the life of the mother was in danger). But that measure was focused on facilities and programs run by the federal government: Medicaid, the Indian Health Service, the Children’s Health Insurance program, and, over time, federal prisons, the Peace Corps, and the Federal Employee Health Benefits Program. Henry Hyde, a Republican from Peoria, introduced his amendment as a rider to an appropriation bill, when Congress was under Democratic control. That is when there were still pro-life Democrats in Congress, and the Hyde Amendment could pass in the House, 312-93. But Joe Biden campaigned in 2020 to repeal that amendment — an amendment he had voted upon with bravado in the past. It is an illusion to think that the Democrats, in their current state, would hesitate for a moment in sweeping away that amendment — and all other regulations withholding support for abortions — if the Democrats came into a firmer control of Congress, along with the White House. For this is a party that has recently voted twice, with high cohesion, to oppose a bill that would protect the infants who survive abortions.

But now the veil has been lifted, and the Biden administration has rediscovered those dramatic lessons taught in the days of Lincoln about the powers of the political branches to counter decisions of the Supreme Court. In the infamous Dred Scott case, the Supreme Court had created a new right not to be dispossessed of property in slaves when one entered a territory of the United States. And it found also that black people could not have the standing of citizens to defend their rights in federal courts. But Lincoln’s Congress moved to bar slavery from the territories, and essentially challenged the Court to take a sober, second look at what it had done. At the same time, the Lincoln administration reversed the decisions in federal agencies, holding that black men could not receive passports and patents under the law because they were not citizens of the United States.

These powers of the political branches arise from the very logic of the separation of powers. Republicans have been strangely sheepish about using these levers, but the Democrats have long ago shed any reservations about using them. We can only behold now the genius of the Biden administration in finding more and more of these levers within its reach. And so the administration has already made moves toward mandating the freedom to perform abortions in federal hospitals receiving federal aid, even in states that bar abortions quite early in the pregnancy. The Emergency Medical Treatment and Labor Act bars hospitals and emergency rooms from refusing to take in patients for assessments or treatment, and the Biden administration has already put out a “guidance letter” that would turn any emergency room in the country into an abortion facility. Texas has run to the rescue in suing.

What the conservatives have had trouble in seeing is this: The Court, in Dobbs, overturned Roe, but Roe left a lasting effect in changing the culture. The conservative lawyers have trained themselves now not to see what ordinary people readily see: that when the Court pronounces on the rights and wrongs of abortion or contraception, it gives us to understand that there is something truly rightful about those “rights,” and truly wrongful in denying them. With Roe, the Court removed abortion overnight from a thing to be abhorred and forbidden — and turned it into something that should be endorsed, celebrated, and promoted. Roe is gone, but that moral teaching remains strong, and it is now vibrant in the most populous states where abortions may now be performed massively, with almost no restrictions and inhibitions.

We now find ourselves in our new version of the “House Divided,” and it is an unsteady balance. The power to tilt it one way or another will be in the federal government, and if one side does not reach for those powers, the other side surely will. And if the culture of abortion flourishes in the blue states, the decisive leverage may well fall to them. The pro-life side has become soberly aware now that the overruling of Roe has not diminished the burdens of their work or delivered several hundred thousand unborn children from lethal dangers.