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Single-issue politics

Charles Rice | Tuesday, November 24, 2009

 The health care debate shows the limits of single-issue abortion politics. Obamacare, in its several versions, is objectionable for reasons beyond the funding of abortion and of euthanasia through rationing of care. It would transform the economy and culture. Its centralization and pervasive reach violate the principle of subsidiarity. The takeover of health care invites bureaucratic control of everything that affects your health, including what you eat, how you heat your home, etc.

Individual bishops and the U.S. Conference of Catholic Bishops (USCCB) have objected to federal funding of elective abortion. They rightly insist that any reform must improve access to health care and protect conscience rights and the rights of the elderly, the disabled, immigrants and other vulnerable persons. Major pro-life entities, however, including the National Right to Life Committee (NRLC) and the USCCB, have stressed the restriction of abortion to such an extent as to generate the impression that the lack of such a restriction is the only decisive objection to Obamacare. That impression contributed to the House approval of Obamacare.
On Saturday night, Nov. 7, the House passed H.R. 3962, The Affordable Health Care for America Act, by a vote of 220 to 215. Its passage was secured by the approval that night of the Stupak-Pitts Amendment, which made H.R. 3962 subject to the Hyde Amendment, the restriction on other appropriations that forbids federal funding of abortions except to save the life of the mother or where the pregnancy resulted from rape or incest.
Stupak-Pitts was adopted, 240 to 194, with one “present.” The Member voting “present” was John Shadegg, a pro-life Republican from Arizona. He had obtained commitments from numerous Republicans to vote “present” so as to defeat Stupak-Pitts and ensure the defeat of H.R. 3962 itself. At noon Saturday, Nov. 7, however, the National Right to Life Committee (NLRC) informed all members of the House that “NRLC will regard a ‘present’ vote as equivalent to a negative vote on the Stupak-Pitts Amendment.” Faced with that threat of NRLC opposition to their re-election, those who might have supported the Shadegg strategy voted “yes” on Stupak-Pitts.
Shadegg’s strategy of voting “present,” so as to defeat Stupak-Pitts, was designed to kill H.R. 3962 itself since, if Stupak-Pitts were defeated, enough Democrats would have voted against H.R. 3962 to ensure its defeat. His strategy would have stopped Obamacare and would have cleared the way for a genuinely deliberative consideration by Congress of health care reform. H.R. 3200, the original House proposal, had 1,017 pages. H.R. 3962 has 1,990. The main Senate bill, which funds abortion, has 2,074. The accelerated votes on those and other bills, which very few, if any, members of Congress have read, is a mockery of legislative process. 
Not even a total prohibition of abortion funding would make Obamacare worthy of support. Pro-life entities, therefore, should have supported the Shadegg strategy instead of reacting to the Stupak-Pitts approval by virtually endorsing Obamacare. “Over the weekend,” said the USCCB Monday, Nov. 9th, “the US House of Representatives advanced major legislation to provide adequate and affordable health care to all.” None of the versions of Obamacare deserves that description. Stupak-Pitts incidentally, in addition to funding abortion in life-of-the-mother, rape and incest cases, would not restrict funding of abortifacients which can prevent implantation of the embryo in the womb and which are wrongly defined as contraceptives.
At the other end of life, Sec. 1233 of H.R. 3962 provides Medicare reimbursement to practitioners for “voluntary advance care planning consultation” between “the individual and a practitioner” who does not have to be the individual’s physician. It does not state whether the consultation will be initiated by the practitioner or the patient. An individual may receive such consultation “no more than once every five years unless there is a significant change in [his or her] health.” The bill imposes no limit on the number or frequency of such consultations. A consultation may include: an explanation of “end-of-life services [and an] explanation by the practitioner of physician orders regarding life sustaining treatment.” Such is “an actionable medical order relating to the treatment of that individual that … is signed … by a practitioner, and is … to be followed by health care professionals across the continuum of care.” The order “communicates the individual’s preferences regarding life sustaining treatment.” But it does not specify that the order must comply with those preferences. The order must be “signed and dated by a practitioner” who could be someone other than the practitioner who gave the consultation and formulated the order. Nor does the bill require that the signer ever saw the patient. Could the signer by a member of a panel reviewing such orders without ever seeing the patient? Yes. Could that fairly be called a “death panel”? Yes.
Speaker Pelosi won approval of H.R. 3962 by exploiting the pro-life focus on restricting funding of abortion. “The Stupak amendment,” Shadegg said, “gave political cover to Democrats … Before the vote [Pelosi] promised pro-abortion Democrats she would strip the Stupak language [from the final bill]. Obama will help her. She will strip the Stupak amendment in Conference and pass the bill with the votes of Democrats who claim to be pro-life. … Republicans who, at the request of Right to Life … voted “yes” on Stupak last night defined a ‘yes’ vote as the pro-life vote. But, it wasn’t. A ‘yes’ vote increased the votes for [H.R. 3962] and enabled Pelosi to pass it. That means more abortions … If Republicans had voted ‘present’ as a group, we would have defined the ‘present’ vote as the pro-life vote. … Now, the Democrats who voted for Stupak will say the ‘Right to Life’ vote was on Stupak and they voted pro-life. Republicans set the standard. Instead of making ‘present’ the pro-life vote, we made ‘yes’ the pro-life vote. … When the Stupak language is stripped in Conference (and Nancy Pelosi will strip it), the supposedly pro-life Democrats will be pressured by Pelosi and Obama to vote ‘yes’ on the Conference report … Pelosi and Obama … will tell [them] they’re safe from attack by Right to Life because they voted for the Stupak amendment. For real pro-lifers to stop the Conference Report after the Stupak language has been stripped will be nearly impossible. I pray we can, but fear last night was our best chance … Nancy Pelosi caught Republicans off-guard.”
The Obama Administration has indeed brought change. For a comparable transformation of a constitutional republic to a command economy under a leader with an anti-life agenda, one has to go back a few years. Adolf Hitler was named Chancellor on Jan. 30, 1933. In the following weeks he consolidated his power through decrees and other measures. The decisive event, however, was the Reichstag’s approval of the Enabling Act on March 23, 1933, by which it ceded practically full and irrevocable powers to Hitler. The Enabling Act received the needed two-thirds vote only because it was supported by the Catholic party, the Center Party. Eliot Barculo Wheaton, “The Nazi Revolution: 1933-35” (1969), 286-93; William L. Shirer, “The Rise and Fall of the Third Reich” (1959), 88, 276-79. If Obamacare becomes law, it will be permanent lights out for limited government in the United States. It will be pathetically tragic if it becomes law through the misguided tunnel-vision support of Catholic entities and individuals. 
Professor Emeritus Rice is on the law school faculty. He may be reached at rice.1@nd.edu or 574-633-4415.
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