Here’s why the Executive Order is a sham – does anyone really believe that Obama would give on the abortion issue when Pelosi would not? (from National Review Online – the Corner)
The Order [Yuval Levin]
Upon first hearing there was talk of an executive order yesterday, I wondered how the administration’s lawyers thought such an order could go beyond the letter of the law in restricting abortion funding. This was a question the Bush administration examined quite extensively on several occasions, and the lawyers involved always agreed that the legal precedents from the time between the Roe decision and passage of the Hyde amendment, as well as some after the Hyde amendment, are extremely clear in stating that federal funds cannot be denied to the provision of abortion except by explicit legislative prohibition. That’s why the Hyde amendment was necessary. But the Hyde amendment wouldn’t apply to this bill, since it applies only to the annual HHS appropriations bill. Hence Stupak’s concern. So what could the White House possibly give Stupak that would not be thrown out by any federal judge in a second?
Looking at the executive order (which you can read here), the answer is clearly nothing. The executive order quite literally does nothing that the Senate bill does not already do, and it is careful to say as much. It offers a kind of narrative of what champions of the bill claim it does with regard to abortion (claims that Rep. Stupak among others has disputed for months), and then says the executive branch will make various people aware of this understanding of what the law says. It orders no action (only the usual promulgation of regulations the law requires anyway) and offers no interpretation beyond that.
If Rep. Stupak and his fellow pro-life Democrats were not satisfied with the protections against taxpayer funding of abortion in the Senate bill (as they rightly were not), there is simply nothing in the text of the order that should change their minds.
Even if the Executive Order did provide any protection, Obama is the abortion president – this is like the fox volunteering to guard the hen house. If this has ANY effect at all, you can guarantee that within a year (or at least by the time it becomes justiciable) (i) a court will explicitly disregard it, or (ii) Obama will state that it needs to be “modified” or terminated entirely as its effects are too harsh on women, etc. It will only take one small congressional hearing with a few women who claim they couldn’t kill their unborn babies without federal money and what a tragedy it is, before Obama will trash the rule.