Waxman and Pallone Ask “Where’s the Constitutional Authority” on H.R. 358?

Jodi Jacobson

Congressmen Henry Waxman and Frank Pallone ask Joe Pitts to withdraw H.R. 358 unless he can cite "constitutional authority," a requirement imposed by the GOP majority in early January, and supposedly applicable to every piece of legislation in the 112th Congress except, apparently, those that strip women of their rights.

Today Rep. Henry A. Waxman (D-CA), Ranking Member of the Energy and Commerce Committee, and Rep. Frank Pallone, Jr., (D-NJ) Ranking Member of the Health Subcommittee, sent a letter (full text below) to Congressman Fred Upton (R-MI), Chairman of the House Energy and Commerce Subcomittee, urging him to withdraw consideration of H.R. 358, a bill which among other things would permit hospitals to deny life-saving treatment to pregnant women. The bill passed in subcommittee yesterday. Waxman and Pallone have called on Upton and Congressman Joe Pitts (R-PA) not to bring the bill to full committee unless and until it is re-introduced with a proper citation of constitutional authority, in accordance with a rule passed by the House GOP leadership on the first day of the new session.

After last November’s election, and upon taking leadership of the House of Representatives, House GOP leadership including Speaker of the House John Boehner and Majority Leader Eric Cantor made a big show of insisting that they would do everything the “Constitutional way,” whatever exactly that means. 

One thing it did mean was a change in the House rules to require that every bill introduced include a statement of the ways in which the proposed law was tied to Constitutional authority.

A December 17, 2010 memo from then Speaker-designate Boehner, Cantor and others to all members of Congress and their staff read as follows:

Appreciate our work?

Vote now! And help Rewire earn a bigger grant from CREDO:

VOTE NOW

The Pledge to America released by House Republicans in September of this year included a commitment to “require every bill to cite its specific Constitutional Authority.” To implement this proposal, the Transition Team and the Elected Republican Leadership are recommending a change to standing Rules of the House to require that each bill or joint resolution introduced in the House be accompanied by a statement citing the specific powers granted to Congress in the Constitution to enact the proposed law.

Well, surprising as I know it may be to many of you, the GOP leadership has apparently decided this rule is a non-negotiable… except when the rule doesn’t suit their interests. The requirement of citing the Constitution for each and every piece of legislation was suddenly less important when it came to profoundly anti-choice legislation rushed through Congress as a “top-priority.”

Waxman and Pallone wrote that H.R. 358 was was introduced:

“without a valid statement of constitutional authority as required under the new House rules adopted in January.  We respectfully urge that the bill not be considered in Committee unless it is re-introduced with a proper citation of constitutional authority.

Chairman Pitts’s bill is an assault on a woman’s access to abortion services, wrote Waxman and Pallone. 

Its apparent objective is to make it impossible for women to choose an abortion by effectively eliminating coverage for the necessary medical services.  It also calls into question the obligation of health care providers to provide the emergency services needed to save the life of a pregnant woman.  Because the bill represents a federal intrusion into the most intimate personal decisions of women and families, it is exactly the type of legislation that most needs a clear statement of Congress’s constitutional authority.

At the markup of the bill in the Health Subcommittee, Rep. Anthony Weiner (D-NY) raised a point of order against consideration of H.R. 358.  Mr. Weiner quoted from House Rule XII, clause 7(c)(1), which provides: 

“A bill or joint resolution may not be introduced unless the sponsor submits for printing in the Congressional Record a statement citing as specifically as practicable the power or powers granted to Congress in the Constitution to enact the bill or joint resolution.” 

Mr. Weiner then read from the statement submitted by Subcommittee Chairman Joe Pitts, the sponsor of the legislation, which stated in full: 

“Congress has the power to enact this legislation pursuant to the following:  The Protect Life Act would overturn an unconstitutional mandate regarding abortion in the Patient Protection and Affordable Care Act.”

Mr. Weiner argued that the statement submitted by Pitts fails to identify any specific provision in the Constitution that authorizes Congress to enact his legislation.  “Indeed,” the letter continued, “it is impossible to divine any constitutional basis for Mr. Pitts’s bill from his statement.”

Perhaps caught in an “oops” moment, the GOP got around this by ruling Weiner’s point during markup as “out of order,” and basically replied that “you should have pointed out this problem when the bill was introduced.”

The Waxman-Pallone letter argued that failing to withdraw and reintroduce the bill with the proper constitutional citation “will make a mockery of the rule” created “with great fanfare” by the GOP itself only a month ago. 

According to the Parliamentarians, the chair judges only whether a constitutional statement has been submitted at the time of introduction, not whether the statement is valid.  If members cannot raise a point of order to enforce the constitutional statement rule during committee consideration of the rule, there is no point at which the rule can be enforced.

Perhaps the reason Mr. Pitts and indeed the entire membership of the House GOP caucus from Speaker Boehner on down appear not to be worried about the Constitutional questions regarding this particular piece of legislation is because they simply don’t think women have rights. The bill itself is testament to that.  And maybe they’ve been attending some of those closed-door corporate and Tea Party meetings featuring Supreme Court Justice Antonin Scalia, who, in an interview with California Lawyer asserted as much: In the interview Scalia said that the Constitution itself does not protect women and gay men and lesbians from discrimination.

But you didn’t think you had any rights, anyway, did you?

The Honorable Fred Upton
Chairman
Committee on Energy and Commerce
2125 Rayburn House Office Building
Washington, DC 20515
 
Dear Chairman Upton:
 
            We are writing to urge you to refrain from bringing H.R. 358 before the full Committee.  This bill, which is an attack on a woman’s right to choose, was introduced without a valid statement of constitutional authority as required under the new House rules adopted in January.  We respectfully urge that the bill not be considered in Committee unless it is re-introduced with a proper citation of constitutional authority.
 
            At today’s markup in the Health Subcommittee, Rep. Anthony Weiner raised a point of order against consideration of H.R. 358.  Mr. Weiner quoted from House Rule XII, clause 7(c)(1), which provides:  “A bill or joint resolution may not be introduced unless the sponsor submits for printing in the Congressional Record a statement citing as specifically as practicable the power or powers granted to Congress in the Constitution to enact the bill or joint resolution.”  Mr. Weiner then read from the statement submitted by Subcommittee Chairman Joe Pitts, the sponsor of the legislation, which stated in full:  “Congress has the power to enact this legislation pursuant to the following:  The Protect Life Act would overturn an unconstitutional mandate regarding abortion in the Patient Protection and Affordable Care Act.”
 
            As Mr. Weiner argued in support of his point of order, the statement submitted by Mr. Pitts does not identify any specific provision in the Constitution that authorizes Congress to enact his legislation.  Indeed, it is impossible to divine any constitutional basis for Mr. Pitts’s bill from his statement.
 
            Mr. Pitts ruled that Mr. Weiner had not stated a valid point of order, in part based on advice you provided.  You advised Mr. Pitts and the subcommittee that the only point at which an objection can be raised to validity of the constitutional statement is when the bill is introduced, not during a markup of the legislation.
 
            We do not dispute Chairman Pitts’s ruling or the parliamentary advice you gave him.  But we believe that if the Committee adheres to this policy, it will make a mockery of the rule requiring submission of a statement of constitutional authority.  According to the Parliamentarians, the chair judges only whether a constitutional statement has been submitted at the time of introduction, not whether the statement is valid.  If members cannot raise a point of order to enforce the constitutional statement rule during committee consideration of the rule, there is no point at which the rule can be enforced.
 
            Chairman Pitts’s bill is an assault on a woman’s access to abortion services.  Its apparent objective is to make it impossible for women to choose an abortion by effectively eliminating coverage for the necessary medical services.  It also calls into question the obligation of health care providers to provide the emergency services needed to save the life of a pregnant woman.  Because the bill represents a federal intrusion into the most intimate personal decisions of women and families, it is exactly the type of legislation that most needs a clear statement of Congress’s constitutional authority.
 
            While we do not dispute that you have the right to bring H.R. 358 before the full Committee, we respectfully suggest that you use your discretion not to do so.  You should ask Mr. Pitts to introduce a new bill with a valid statement of constitutional authority and use the new bill, not H.R. 358, as the vehicle for any further consideration of this matter in the Committee.  That would send a strong signal that the Committee is serious about the requirement that the constitutional basis of legislation be clearly stated before legislation can be considered in Committee.
 
            The new Republican majority adopted the constitutional statement requirement with great fanfare in January.  As the provision is now part of our rules, we believe it should be appropriately enforced – not rendered meaningless – as we approach our first full Committee markup.
 
Sincerely,
 
Henry A. Waxman
Ranking Member
 
Frank Pallone, Jr.
Ranking Member
Subcommittee on Health
 

News Law and Policy

Federal Judge Guts Florida GOP’s Omnibus Anti-Choice Law

Teddy Wilson

"For many people, Planned Parenthood is the only place they can turn to,” said Barbara Zdravecky, president and CEO of the Planned Parenthood of Southwest and Central Florida. “We may be the only place they can go in their community, or the only place that offers the screening or birth control method they need. No one should have their basic health care taken away."

A federal judge on Thursday permanently blocked two provisions of a Florida omnibus anti-choice law that banned Planned Parenthood from receiving state funds and required annual inspections of all clinics that provide abortion services, reported the Associated Press.

U.S. District Judge Robert Hinkle issued an order in June to delay implementation of the law.

“The Supreme Court has repeatedly said that a government cannot prohibit indirectly—by withholding otherwise-available public funds—conduct that the government could not constitutionally prohibit directly,” Hinkle wrote in the 25-page ruling.  

Thursday’s decision came after Republican Gov. Rick Scott’s administration decided not to pursue further legal action to defend the law, and filed a joint motion to end the litigation.

Appreciate our work?

Vote now! And help Rewire earn a bigger grant from CREDO:

VOTE NOW

Hinkle issued a three page decision making the injunction permanent.

HB 1411, sponsored by Rep. Colleen Burton (R-Lakeland), was passed by the Republican-controlled state legislature in March.

The judge’s ruling nixed provisions in the law that banned state funding of abortion care and required yearly clinic inspections. Other provisions of the law that remain in effect include additional reporting requirements for abortion providers, redefining “third trimester,” and revising the care of fetal remains.

The GOP-backed anti-choice law has already had a damaging effect in Palm Beach County, where Planned Parenthood was forced to end a program that focused on teen dropout prevention.

Barbara Zdravecky, president and CEO of the Planned Parenthood of Southwest and Central Florida, said in a statement that the ruling was a “victory for thousands of Floridians” who rely on the organization for reproductive health care.

“For many people, Planned Parenthood is the only place they can turn to,” Zdravecky said. “We may be the only place they can go in their community, or the only place that offers the screening or birth control method they need. No one should have their basic health care taken away.”

A spokesperson for Scott told Reuters that the administration is “reviewing” the decision.

Roundups Politics

Campaign Week in Review: Trump Weighs in on Supreme Court Decision, After Pressure From Anti-Choice Leaders

Ally Boguhn

The presumptive Republican nominee’s confirmation that he opposed the decision in Whole Woman’s Health v. Hellerstedt came after several days of silence from Trump on the matter—much to the lamentation of anti-choice advocates.

Donald Trump commented on the U.S. Supreme Court’s abortion decision this week—but only after days of pressure from anti-choice advocates—and Hillary Clinton wrote an op-ed explaining how one state’s then-pending decision on whether to fund Planned Parenthood illustrates the high stakes of the election for reproductive rights and health.

Following Anti-Choice Pressure, Trump Weighs in on Supreme Court’s Abortion Decision

Trump finally broke his silence Thursday about the Supreme Court’s decision earlier this week, which struck down two provisions of Texas’ HB 2 in Whole Woman’s Health v. Hellerstedt.

“Now if we had Scalia was living, or if Scalia was replaced by me, you wouldn’t have had that,” Trump claimed of the Court’s decision, evidently not realizing that the Monday ruling was 5 to 3 and one vote would not have made a numerical difference, during an appearance on conservative radio program The Mike Gallagher Show. “It would have been the opposite.” 

Appreciate our work?

Vote now! And help Rewire earn a bigger grant from CREDO:

VOTE NOW

“So just to confirm, under a President Donald Trump-appointed Supreme Court, you wouldn’t see a majority ruling like the one we had with the Texas abortion law this week?” asked host Mike Gallagher.

“No…you wouldn’t see that,” replied Trump, who also noted that the case demonstrated the important role the next president will play in steering the direction of the Court through judicial nominations.

The presumptive Republican nominee’s confirmation that he opposed the decision in Whole Woman’s Health came after several days of silence from Trump on the matter—prompting much lamentation from anti-choice advocates. Despite having promised to nominate anti-choice Supreme Court justices and pass anti-abortion restrictions if elected during a meeting with more than 1,000 faith and anti-choice leaders in New York City last week, Trump made waves among those who oppose abortion when he did not immediately comment on the Court’s Monday decision.

“I think [Trump’s silence] gives all pro-life leaders pause,” said the president of the anti-choice conservative organization The Family Leader, Bob Vander Plaats, prior to Trump’s comments Thursday, according to the Daily Beast. Vander Plaats, who attended last week’s meeting with Trump, went on suggest that Trump’s hesitation to weigh in on the matter “gives all people that are looking for life as their issue, who are looking to support a presidential candidate—it gives them an unnecessary pause. There shouldn’t have to be a pause here.”

“This is the biggest abortion decision that has come down in years and Hillary Clinton was quick to comment—was all over Twitter—and yet we heard crickets from Donald Trump,” Penny Young Nance, president of Concerned Women for America, said in a Tuesday statement to the Daily Beast.

Kristan Hawkins, president of Students for Life of America, expressed similar dismay on Wednesday that Trump hadn’t addressed the Court’s ruling. “So where was Mr. Trump, the candidate the pro-life movement is depending upon, when this blow hit?” wrote Hawkins, in an opinion piece for the Washington Post. “He was on Twitter, making fun of Elizabeth Warren and lamenting how CNN has gone negative on him. That’s it. Nothing else.”

“Right now in the pro-life movement people are wondering if Mr. Trump’s staff is uninformed or frankly, if he just doesn’t care about the topic of life,” added Hawkins. “Was that meeting last week just a farce, just another one of his shows?”

Anti-choice leaders, however, were not the only ones to criticize Trump’s response to the ruling. After Trump broke his silence, reproductive rights leaders were quick to condemn the Republican’s comments.

“Donald Trump has been clear from the beginning—he wants to overturn Roe v. Wade, and said he believes a woman should be ‘punished’ if she has an abortion,” said Dawn Laguens, executive vice president of Planned Parenthood Action Fund, which has already endorsed Clinton for the presidency, in a statement on Trump’s comments. 

“Trump’s remarks today should send a shiver down the spine of anyone who believes women should have access to safe, legal abortion. Electing Trump means he will fight to take away the very rights the Supreme Court just ruled this week are constitutional and necessary health care,” continued Laguens.

In contrast to Trump’s delayed reaction, presumptive Democratic nominee Clinton tweeted within minutes of the landmark abortion rights decision, “This fight isn’t over: The next president has to protect women’s health. Women won’t be ‘punished’ for exercising their basic rights.”

Clinton Pens Op-Ed Defending Planned Parenthood in New Hampshire

Clinton penned an op-ed for the Concord Monitor Wednesday explaining that New Hampshire’s pending vote on Planned Parenthood funding highlighted “what’s at stake this election.”

“For half a century, Planned Parenthood has been there for people in New Hampshire, no matter what. Every year, it provides care to almost 13,000 people who need access to services like counseling, contraception, and family planning,” wrote Clinton. “Many of these patients cannot afford to go anywhere else. Others choose the organization because it’s the provider they know and trust.”

The former secretary of state went on to contend that New Hampshire’s Executive Council’s discussion of denying funds to the organization was more than “just playing politics—they’re playing with their constituents’ health and well-being.” The council voted later that day to restore Planned Parenthood’s contract.

Praising the Supreme Court’s Monday decision in Whole Woman’s Health, Clinton cautioned in the piece that although it was a “critical victory,” there is still “work to do as long as obstacles” remained to reproductive health-care access.

Vowing to “make sure that a woman’s right to make her own health decisions remains as permanent as all of the other values we hold dear” if elected, Clinton promised to work to protect Planned Parenthood, safeguard legal abortion, and support comprehensive and inclusive sexual education programs.

Reiterating her opposition to the Hyde Amendment, which bans most federal funding for abortion care, Clinton wrote that she would “fight laws on the books” like it that “make it harder for low-income women to get the care they deserve.”

Clinton’s campaign noted the candidate’s support for repealing Hyde while answering a 2008 questionnaire provided by Rewire. During the 2016 election season, the federal ban on abortion funding became a more visible issue, and Clinton noted in a January forum that the ban “is just hard to justify” given that restrictions such as Hyde inhibit many low-income and rural women from accessing care.

What Else We’re Reading

Politico Magazine’s Bill Scher highlighted some of the potential problems Clinton could face should she choose former Virginia governor Tim Kaine as her vice presidential pickincluding his beliefs about abortion.

Foster Friess, a GOP mega-donor who once notoriously said that contraception is “inexpensive … you know, back in my days, they used Bayer aspirin for contraception. The gals put it between their knees, and it wasn’t that costly,” is throwing his support behind Trump, comparing the presumptive Republican nominee to biblical figures.

Clinton dropped by the Toast on the publication’s last day, urging readers to follow the site’s example and “look forward and consider how you might make your voice heard in whatever arenas matter most to you.”

Irin Carmon joined the New Republic’s “Primary Concerns” podcast this week to discuss the implications of the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt on the election.

According to analysis from the Wall Street Journal, the popularity of the Libertarian Party in this year’s election could affect the presidential race, and the most likely outcome is “upsetting a close race—most likely Florida, where the margin of victory is traditionally narrow.”

The Center for Responsive Politics’ Alec Goodwin gave an autopsy of Jeb Bush’s massive Right to Rise super PAC.

Katie McGinty (D), who is running against incumbent Sen. Pat Toomey (R) in Pennsylvania, wrote an op-ed this week for the Philly Voice calling to “fight efforts in Pa. to restrict women’s access to health care.”

The Iowa Supreme Court ruled against an attempt to restore voting rights to more than 20,000 residents affected by the state’s law disenfranchising those who previously served time for felonies, ThinkProgress reports.

An organization in Louisiana filed a lawsuit against the state on behalf of the almost 70,000 people there who have previously served time for felonies and are now on probation or parole, alleging that they are being “wrongfully excluded from registering to vote and voting.”

credo_rewire_vote_3

Vote for Rewire and Help Us Earn Money

Rewire is in the running for a CREDO Mobile grant. More votes for Rewire means more CREDO grant money to support our work. Please take a few seconds to help us out!

VOTE!

Thank you for supporting our work!