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2023 Year in Review: Federal Government and Abortion

by | Jan 10, 2024

By Jennifer Popik, J.D., Director of Federal Legislation

Editor’s note. This appears in the January edition of National Right to Life News the pro-life newspaper of record. Please share this, and all the other news stories, commentaries, and editorials with your pro-life family and friends.

As Congress gets set to return in 2024, several challenges await them including the most immediate task of funding the Federal Government. National Right to Life and pro-life members of Congress continue to work to prevent taxpayer-funded abortion, and to push back on the radical Biden Administration abortion agenda.

The 118th Republican-controlled House of Representatives, one of the most closely divided in recent memory, has worked to adopt several measures aimed at protecting life, and pushed back on the pro-abortion actions of the Biden Administration. The Democrat-controlled Senate has also taken several life-related votes. No pro-life measures have made it to the President’s desk, where they would certainly face the threat of a veto. Several broad topics are detailed below.

You can see how your members of Congress voted here.

Taxpayer Funded Abortion

Congress failed to pass year-long appropriations for 2024 as they were supposed to have done on September 30th, 2023. Instead, they are keeping the government funded and open using a continuing resolution or “CR”.  The current CR runs out for several agencies on Jan. 19 and others on Feb. 2. This CR maintains the status quo on taxpayer-funded abortion, including the over four-decade old Hyde Amendment and numerous other similar provisions.

House leadership promised to hold votes on 12 individual spending bills to fund the government, rather than produce a large omnibus. While the majority of the 12 bills have been approved, work has stalled on the remaining bills while the clock runs on the temporary CR.  The House, controlled narrowly by Republicans, has prioritized conservative items, while the Senate bills largely maintain the status quo.  With the temporary CR keeping the government open, a deal will have to be struck to fund the government with the Democrat-controlled Senate. 

With Chairwoman Kay Granger (R-Texas) at the helm of the House Appropriations Committee, multiple bills were written to retain long-standing pro-life protections and include a series of new pro-life provisions.  Every appropriations bill that contains abortion policy has included language protecting life, whether it be retaining longstanding riders (Hyde and Hyde-like amendments) or by adding new language to stop the Biden Administration’s legally suspect expansion of taxpayer-funded elective abortion in a few agencies. In particular, both Veterans Affairs and the Department of Defense have been forced to expand abortion, likely in violation of existing law.  Those items are explained more fully below.

While it is expected that long-standing pro-life provisions will be maintained this Congress, few if any of the new provisions have sufficient support in the Democrat-controlled Senate but remain worth fighting for. 

Pregnancy Centers Under Attack

In the time after the Dobbs v. Jackson U.S. Supreme Court decision was leaked up until today, there have been over 100 documented attacks on pregnancy care centers, pro-life groups, and churches.  The Biden Administration has systematically failed to respond to these incidents.

On January 11, 2023, the House passed H. Con. Res. 3 which expressed the sense of the House of Representatives condemning the attacks on pro-life facilities, groups, and churches. The resolution, sponsored by now Speaker Mike Johnson (R-La.), passed 222-209.

Not only has the Biden Administration failed to respond to attacks, but they are currently attempting to stop federal funds from going to pregnancy centers in a number of states that direct funds to them through the TANF program.

National Right to Life and several affected states submitted official comments in opposition to a proposed Biden rule, “Strengthening Temporary Assistance for Needy Families (TANF) as a Safety Net and Work Program,” published on October 2, 2023 (the “Proposed Rule”). The Proposed Rule, among other things, targets pregnancy resource centers by threatening to strip them of millions of dollars of funding, claiming without evidence that pregnancy centers do not meet TANF criteria. This is funding that is currently being used to compassionately help women and their unborn babies.  

Nearly 3,000 pregnancy centers serve about 2 million clients annually, saving local communities millions of dollars by providing services at little to no cost. Many pregnancy centers provide limited obstetrical ultrasounds under a local doctor’s oversight as well as parenting classes. In addition, nearly all centers provide material assistance such as diapers, cribs, and car seats as well as practical help such as connecting a mother in need to local resources that can help her with housing or transportation.

The final rule has not yet gone into effect.

Protecting Children Born Alive in Attempted Abortions

In the wake of the Dobbs v. Jackson decision, several states are moving not only to fully legalize abortion up to the moment of birth but also going to great lengths to insulate abortion providers from even the most basic scrutiny. Against this backdrop, Congress felt a renewed urgency to pass the Born-Alive Abortion Survivors Protection Act.

The Born-Alive Abortion Survivors Protection Act requires that, when a baby is born alive following an abortion, health care practitioners must exercise the same degree of professional skill and care that would be offered to any other child born alive at the same gestational age. It also requires that, following appropriate care, health care workers must transport the living child immediately to a hospital. Current federal law does not sufficiently protect a child born following an abortion.

On January 11, 2023, the House passed the Born-Alive Abortion Survivors Protection Act (H.R. 26) sponsored by Rep. Ann Wagner by a vote of 220 to 210. This legislation has not been taken up by the Senate.

Abortions at Veterans Affairs

On September 9, 2022, the Biden Administration’s Department of Veterans Affairs (VA) issued a rule that provides abortion services through the taxpayer-funded VA health care system by providing for unlimited abortions for undefined “health reasons.” 

This rule is being implemented now. If it takes full effect, it would turn the VA into abortion facilities, particularly if located in states that protect unborn children. The VA is currently performing abortions for health reasons.

S.J.Res. 10, sponsored by Sen. Tuberville (R-Al), employed the Congressional Review Act to nullify the rule. On April 19, 2023, the vote failed 48 -51. All Democrats voted no except for Sen. Manchin (D-Wv.).

Abortion in the Military

Federal law (10 U.S.C. § 1093) has long prevented the Department of Defense (DOD) from using funds to perform elective abortions and prevented the DOD from using its facilities to provide abortions.

On October 20, 2022, the Biden Administration’s DOD published a memorandum directing the DOD to pay the travel and transportation costs for military members and dependents to travel to obtain elective abortions. The federal prohibition against DOD funding elective abortion clearly extends to funding for any item related to the abortion, such as travel and transportation.

An amendment from Rep. Ronny Jackson (R-Texas) to prohibit the DOD from paying for or reimbursing expenses relating to elective abortion was added to the final National Defense Authorization Act (NDAA) package. On July 13, 2023, 221 Republicans and 1 Democrat voted in favor of the resolution. 213 Democrats voted against the resolution. Six members did not vote.

On the Senate side, Sen. Tuberville (R-AL) was blocking military promotion on account of this policy for over a year.  He withdrew the hold, and a vote to overturn the policy was held. During consideration of the NDAA, the Senate considered a procedural motion from Sen. Ernst (R-IA) to prohibit the Secretary of Defense from paying for or reimbursing expenses relating to elective abortion. On December 12, 2023, 47 Republicans voted in favor of the motion. 51 Democrats and 2 Republicans voted against the resolution. 

The Equal Rights Amendment

S.J. Res. 4, sponsored by Senators Ben Cardin (D-Md.) and Lisa Murkowski (R-Ak.), purports to make the Equal Rights Amendment (ERA) submitted by Congress to the states in March, 1972, part of the U.S. Constitution, even though the 1972 ERA Resolution contained a seven-year ratification deadline that expired in March, 1979 and even though four state legislatures rescinded their ratifications prior to the deadline.

Pro-ERA lawmakers and groups now openly proclaim that they believe the 1972 ERA language should be construed to establish a federal constitutional “abortion right” more sweeping than even the now-nullified Roe v. Wade.

National Right to Life strongly opposed S.J.Res. 4, both on pro-life policy grounds and on constitutional process grounds. On this roll call on April 27, 2023, 51 senators voted to advance the measure (“invoke cloture”), and 47 senators voted to block it (the pro-life vote).

Because 60 votes were required to “invoke cloture,” the pro-abortion motion failed. Senator Charles Schumer (D-NY), although a supporter of S.J.Res. 4, switched his vote to “nay” in order to give him the right, under Senate rules, to force a repeat vote at a time of his choosing.

Senator Dianne Feinstein (D-Ca.), a supporter of the ERA, and Senator Mike Lee (R-Utah), an opponent of the ERA, were absent. Therefore, if all senators had been present and voting, the tally would have been 53-47, or 7 votes short of the 60 votes required to advance the measure.

The measure is supported by all Democratic and independent senators, and by Republican Senators Murkowski and Susan Collins (Maine). The companion measure in the U.S. House of Representatives is H.J. Res. 25 (sponsored by Rep. Ayanna Pressley). ,

Chemical Abortion Drugs

On January 3rd, 2023, the Food and Drug Administration (FDA) updated labeling for mifepristone (generic for Mifeprex) that would allow pharmacies to dispense the drug.

At the same time, there have been ongoing court cases surrounding both the original drug approval and subsequent loosening of restrictions. The cases are FDA, et al. v. Alliance Hippocratic Medicine, et al. and Danco Laboratories, L.L.C. v. Alliance Hippocratic Medicine, et al.  Well over a hundred pro-life members of Congress have signed on to various amicus briefs in support of these cases.

On December 13, 2023, the U.S. Supreme Court announced that it will hear arguments this term regarding the Food and Drug Administration’s decisions in 2016 and 2021 to loosen regulations of the abortion drug mifepristone and whether the challengers have standing to bring their case.

According to Carol Tobias, president of National Right to Life, “The Biden Administration has promoted unlimited abortion since Day 1. Bowing to pressure from pro-abortion groups, this administration has worked to make mifepristone widely available, regardless of the dangers to women and the deaths of preborn children.”

According to the U.S. Centers for Disease Control, the government agency that tracks the nation’s abortions, approximately 56% of all abortions are done using chemical abortion methods such as mifepristone and misoprostol.

Mifepristone is used in combination with misoprostol, a prostaglandin, to cause an abortion. Mifepristone blocks progesterone, leading to the death of the unborn baby, while the second drug, misoprostol, causes powerful, painful uterine contractions to expel the dead or dying baby. More on the cases and the effects of the drugs on women can be found here.

As we look ahead to a divided Congress in 2024, National Right to Life and pro-life members of Congress will continue to work hard to prevent taxpayer-funded abortion, and to continue pushing back on the Biden Administration’s numerous actions to promote abortion.