(UPDATE and CORRECTION) White House Crafting Deal with Stupak on Executive Order

Jodi Jacobson

The White House is an executive order to placate Bart Stupak on a bill that already includes the most wide-ranging restrictions on women's rights to choose since before Roe v. Wade.

UPDATE: 11:59 am: Stupak and colleagues have canceled their noon press conference.

This article was updated at 11:25 am on Sunday, March 21st to reflect further information and analyses on the executive order being crafted by the White House to placate Stupak.  We will do further analysis later today, tonight and tomorrow.

To close the deal on a health care bill that, if passed tonight, will impose the greatest restrictions on women’s rights to choose whether or not to carry an unwanted pregnancy to term since before Roe v Wade, the White House is now negotiating a deal with Michigan Congressman Bart Stupak, an anti-choice Democrat, to sign an executive order on the Hyde Amendment.

The Hill reports that Stupak said Sunday morning he is “close to striking a deal with the Obama administration on abortion provisions.”

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“We are close to getting something done,” Stupak said in an interview with MSNBC.

The Senate bill, upon which the House will vote this evening, contains the so-called Nelson language (after Senator Ben Nelson, D-NE), which among other things forces women to write separate checks for coverage of abortion care, mandates what public health data insurance companies can or can not include in costing abortion care, and also allows states to forbid abortion coverage in their health plans. As reported earlier on Rewire, expert analyses have concluded that the Nelson language will result in the disappearance of abortion coverage in the private insurance market.

But Bart Stupak has wanted a complete ban in abortion coverage even in private insurance coverage, in effect preventing women from spending their own funds on coverage for abortion care, coverage that some 87 percent of women covered by private insurance now have. 

Stupak claims the Democrats do not have the votes in the House without a deal that placates him.

During the Presidential campaign, the Obama campaign provided the following statement on its position on the Hyde Amendment to RH Reality Check:

Obama does not support the Hyde amendment. He believes that the federal government should not use its dollars to intrude on a poor woman’s decision whether to carry to term or to terminate her pregnancy and selectively withhold benefits because she seeks to exercise her right of reproductive choice in a manner the government disfavors.

Repealing the Hyde Amendment has been a long-term goal of the pro-choice community because it creates a huge burden on low-income women facing unintended and unwanted pregnancies.

Laws passed by Congress and signed by the President can not be superceded by Executive Order.  Therefore, analysts are mixed on the implications of an Executive Order on Hyde and of course much depends on the actual language of the Order, which Stupak says he will reveal today at noon.

On Daily Kos this morning, Bronx Family Doctor states:

Many argue that it is simply a reiteration of current law; after all, we have had the Hyde Amendment banning such funding (except in the case of rape, incest, or the life of the mother) for over 30 years.  What’s the big deal?

The fact is, this is a very big deal.  Although the Hyde Amendment is repeatedly renewed, it is not a law on the books per se.  It must be renewed each year as part of the budget.  This means that every year we have the opportunity to get rid of it (although we have as yet been unsuccessful).  An executive order, in contrast, would put these provisions on the books until it is rescinded.  It is much harder to rescind an executive order than to change language that must be inserted in the budget yearly.  Really, what president would stick his neck out for the 1/3 of women who will need abortions?  If we are to be guided by history, nobody.

But another analyst for the pro-choice community, speaking off the record, notes that:

The president has a Constitutional obligation to faithfully execute the laws. The Hyde Amendment isn’t law per se, but it focuses on budgetary matters which makes it hard to have a standing law. If Congress allocates funds, the President lacks the authority to not spend them. It’s a classic Constitutional law question. So the real reason it’s never been an executive order is that there’s never been a threat that congress would allocate funds for Medicaid/Tricare/HIS/FBOP to go towards abortion care. Now if Obama issues the order, and then Congress does not include the Hyde Amendments, then he can merely rescind it. There has been no traction in reversing Hyde and I just don’t see it getting better in the short-term.

And on Twitter, Devbost wrote:

This is mostly for show. An executive order can’t extend the duration of a statute. That’s for Congress, not the WH.

The pro-choice community analyst, speaking off the record, says however,

Stupak and the USCCB are probably unclear about how the global gag rule worked and believe too strongly in the power of executive orders. It just doesn’t add up.

Still there are symbolic elements to this that are far more serious than the practical implications. If the President didn’t want to spend money in Iraq but he signed a bill that authorized the DOD to spend $X amount of dollars, he can’t stop it with an Executive Order. Same goes for Hyde.

Various outlets are reporting that Stupak will disclose the language of his executive order by noon today.

Further analysis to come tonight and tomorrow.

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