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LIFE, LIBERTY, AND THE PURSUIT OF HAPPINESS: DID THE FOUNDERS REALLY MEAN THAT?

I. INTRODUCTION

"And I've noticed that everybody that is for abortion has already been born." (1) When Congress passed it in 2010, the Affordable Care Act did not explicitly bar the use of federal funds appropriated under the Act for abortion services. The first version of healthcare reform legislation that passed the House of Representatives in November 2009 (2) contained such language, but the Senate did not approve that bill. The final version cleared by the House in March 2010 (3) and signed by President Barack Obama (4) similarly omitted abortion funding restrictions. That omission led to numerous attempts by conservative majorities in recent Congresses to codify the so-called Hyde Amendment ("Amendment") in the Affordable Care Act ("Act") with standalone legislation. (5) (A decades-old appropriations rider, the Amendment is found nowhere in the U.S. Code. It bars abortion funding in federal health programs, such as Medicaid, that receive funding under the normal appropriations process.) Proponents of these bills fear that health insurance plans provided through the Act's exchanges will be construed to include coverage for reproductive options, such as abortion, with which many Americans disagree on moral grounds. Conservatives argue that such insurance options would indirectly result in taxpayer-funded abortion coverage for millions of American women.

This article will argue why these legislative efforts should come to pass. From a 3,000-foot view, it will present natural and moral law arguments for codifying the Hyde Amendment in the Affordable Care Act. It will also argue, using natural and moral law, why fetuses have a right to live. In addition, this article will address how all mankind, as part of the human race, can know of this right. Finally, this article will discuss why the Act's current language fails to fully protect unborn children of American women who receive, or may receive health insurance under the Act, and why separate legislation will provide that protection. There will be natural and moral law arguments for codifying these life protections in positive law; argument will also point to the works of authoritative jurisprudential thinkers such as Aristotle, Thomas Aquinas, Ronald Dworkin, John Locke, and John Rawls. This article's overall goal is to show its reader how various jurisprudential topics support the enactment of positive law codifying the Hyde Amendment in the Act.

II. ROE'S BACKGROUND

In an age where constitutions codify legal rights and give them a God-like veneration, one would think that debate over certain rights would be a thing of the past. Lawyers, judges, legislators, philosophers, physicians, lobbyists, authors, college students, late-night TV show hosts, and impassioned citizens have debated for ages whether the unborn enjoy the same rights and worth as those who have been born. And as Professor Francis Beckwith aptly said, "No collection of U.S. Supreme Court opinions has been more misunderstood, and its arguments more misrepresented to the general public, than Roe v. Wade... and its jurisprudential progeny." (6)

The Roe decision bears a heavy mark in a long line of 20th-century Supreme Court cases in which the Court extended constitutional protection to certain privacy interests in various aspects of American life. By a vote of 7-2, the Court, ironically composed entirely of men, held that a 119-year-old Texas statute prohibiting abortions except in the case of a threat to the mother's health violated the Fourteenth Amendment's Due Process Clause (7). In his majority opinion, Justice Harry Blackmun wrote that, "[A]side from procedural guidelines to ensure maternal health, a state has no right to restrict abortion in the first six months of pregnancy." (8) According to Blackmun, rights of privacy recognized by the Court for many years and in many settings (9) include the right of a woman to terminate her pregnancy during the first trimester. Roe invalidated countless state statutes that regulated abortion. Striking a blow to pro-life activists, the Supreme Court upheld the heart of Roe nineteen years later. (10) In 2007, it again declined to overrule Roe, but did uphold a nationwide ban on partial-birth abortion procedures. (11)

Arguably, most Americans are unaware of Roe's full effects. Roe forbids the states from restricting abortion during the first trimester of pregnancy. Between the first trimester and the point of viability, states can regulate abortion only "reasonably" and only in the interest of maternal health. (12) However, only after satisfying those two interests did the Court consider the interests of the one whom an abortion affects the most: the unborn child. The states have discretion, only after the point of viability, to regulate abortion "in promoting its interest in the potentiality of human life," excepting abortions deemed medically necessary for the mother's health. (13) So, the Court made clear that a pregnant woman may obtain an abortion during the first two critical periods of time of a pregnancy (during the first trimester, and from the end of the first trimester to the point of viability). The State's interest in protecting fetal life, the Court concluded, may be ignored until after viability. (14)

Unfortunately for him, Justice Blackmun did not understand that he was opening the door to abortion on demand by categorizing first-trimester interests, viability interests, and fetal life interests in the structure of his opinion. Professor Francis Beckwith correctly points this out. In the post-Roe world, a woman may obtain an abortion during the earlier stages of pregnancy not just out of medical necessity, but for any reason she deems fit. (15) In 1973, doctors estimated viability to be between twenty-four and twenty-eight weeks; modern medicine has moved it to between twenty and twenty-four weeks (16). Justice O'Connor, dissenting in Akron Center for Reproductive Health, recognized this shift in viability as a collision course by which Roe will collide with itself. (17) Professor Beckwith explains: "In other words, if viability is pushed back far enough, the right to abortion will vanish for all practical purposes." (18)

However, thanks to Roe's sister case, Doe v. Bolton, such a collision may be avoided. The Doe Court required the government to interpret the word "health" as broadly as possible "in light of all the factors--physical, emotional, psychological, familial, and the woman's age--relevant to the well-being of the patient." (19) So essentially, when put together, Roe and Doe legalize abortion up to the time of the child's birth as long as the woman can convince her doctor that some aspect of her health depends on the abortion. (20) Congress found this to be true in the year of Doe's decision; at that time, a Senate Judiciary Committee report concluded that "no significant legal barriers of any kind whatsoever exist today in the United States for a woman to obtain an abortion for any reason during any stage of her pregnancy." (21) Just thirteen years after joining the Roe majority, Chief Justice Warren Burger, too, acknowledged that the point at which abortion is available on demand had already passed. (22) Although the number of legal abortions reported to the Centers for Disease Control and Prevention has dropped in recent years, (23) the CDC recorded over 600,000 abortions in 2013. (24)

This article will not argue against abortion in general or that it should be completely outlawed. Rather, it will focus on the Affordable Care Act and submit two arguments: 1) the Act's language is inadequate to protect the unborn, and; 2) passage of codification legislation can provide that protection. For the remainder of this article, the following arguments will be made. First, Americans can know through the law of nature that abortion is an immoral practice which Congress should restrict as much as possible. Second, moral law requires that legislatures pass statutes to combat immoral practices. And third, the current language of the Act cannot protect the unborn from loopholes through which individuals might procure abortions with federal money. Several jurisprudential arguments support the enactment of positive law codifying the Hyde Amendment, and that will be seen in the following paragraphs.

III. A BRIEF HISTORY OF ABORTION

Scholars generally agree that abortion as a procedure has been around since ancient times. Soros of Ephesus, an early Greco-Roman gynecologist (A.D. 98-138), identified abortion with two separate Greek words, both of which reveal what the procedure really does: phthorion, "which destroys what has been conceived," and ekbolion, "which expels what has been conceived." (25) No wonder feelings have been strong on the morality of abortion, even from the earliest times. The Didache, an early Christian treatise, included the practice of abortion in a list of prohibited vices: "You shall not kill.... You shall not slay the child by abortions (phthora). You shall not kill what is generated." (26) The Epistle of Barnabas also forbade the killing of a child in the womb. (27) John T. Noonan observes that the foundation of these prohibitions was the love of one's neighbor. (28) Clement of Alexandria, in the second century, wrote the following in his Pedagogus: that "Christians do not, in order to hide their fornication, 'take away human nature, which is generated from the providence of God, by hastening abortions and applying abortifacient drugs [phthoriosis pharmakois] to destroy utterly the embryo and, with it, the love of man.'" (29) According to Noonan, these ancient writings disallowed the use of abortifacient drugs because it destroyed the fetus, a creation of God, and in so doing violated the principle of loving one's neighbor. (30) The condemnation of abortion was widespread among other thinkers. In addressing the Roman emperor, an early Christian philosopher, Athenagoras, pleaded: "How can we kill a man when we are those who... will account to God for their abortions as for the killing of men. For the fetus in the womb is not an animal, and it is God's providence that he exists." (31) An early lawyer, Minucius Felix, wrote the following around AD 190: "No one would believe [that the tender bodies of infants would be destroyed] unless he dared it." (32) Tertullian's apologia read in pertinent part: "To prevent being born is to accelerate homicide, nor does it make a difference whether you snatch away a soul which is born or destroy one being born. He who is man-to-be is man, as all fruit now is seed." (33) Tertullian summed up the abortion question nicely, regarding the aborted fetus when removed from its mother, "How are they dead unless they were first alive?" (34)

Early philosophers and theologians were passionate and vocal about the immorality of abortion. Granted, much of the above paragraph focused solely on religious opposition to abortion, and the case can be made that religion is an ineffective tool with which to fight legal battles in the modern era. But do not just take the ancients' word on abortion. Step back to the beginning of the modern era of thinking (which, for purposes of jurisprudential discussion only, began after the Glorious Revolution of 1688). It is the era of Locke, Rosseau, Descartes, Kant, Voltaire, and other late-17th, 18th, and 19th century thinkers. Here begins the discussion of the first pillar in a two-part reason for codifying the Hyde Amendment: natural law requires it. In the remainder of this article, natural law will be discussed first, and moral law second. Finally, a joint argument will be made that results from the combination of the two.

IV. PILLARS SUPPORTING THE HYDE AMENDMENT

A. Natural Law

Natural law has no concrete definition. Professor Franziska Quabeck has defined it in a very understandable way: "a set of objective moral norms, which men ought to live by in a natural state, when no positive laws exist." (35) Justin Buckley Dyer and Micah J. Watson wrote that natural law "has made the case that there is a universal law that can be known through reason by all persons." (36) Professor Raymond Marcin believes that natural law is supreme over all human law, whether statutory or case law, and thus gives human law its validity. (37) As C.S. Lewis once explained in a 1941 BBC radio broadcast, "This law... was called the Law of Nature because people thought that everyone knew it by nature and did not need to be taught it." (38) (Here, Lewis addressed George VI's war-weary subjects on Christianity's foundational concepts to boost their morale during World War II.) And then, of course, is the cliche dictionary definition: a set of principles, moral and legal, stemming from the concept of human nature. (39) Natural law principles emphasize a respect for the rights we enjoy because we are part of humanity, rights that justice requires others by their actions to respect and governments by their positive laws to protect. (40)

The ancient Stoics arguably first espoused a belief in natural law. They believed in the eternity of natural law and that it directs all human action. No nation can touch or in any way alter this law; it is "built into the structure of the universe" by God in His divine wisdom, and on it human nature is built. (41) Cicero, the famous Roman Stoic, held this view, as did later medieval thinkers such as Thomas Aquinas. In Aquinas's view, natural law provides the foundation of human ability to reason and natural tendencies (which, like natural law itself, cannot be altered unless human nature is altered). (42) Aristotle and Aquinas both wrote from a teleological perspective, that natural law concerns actions aimed at some end. (43) Aristotle's theory had a teleological flavor because he saw action as it relates to man's good; if an action is conducive to bringing about man's good, then it is the right action. If it is opposed to the true good, then it is the wrong action. (44)

Perhaps no "modern" philosopher carries more authority on natural law than John Locke. Setting a foundation for the more modern thinkers, Locke maintained that a universal, unchangeable law governs the world, and everyone in the world is obligated to follow it. (45) He believed that all men are born with the ability to reason, which enables them to know the law of nature. (46) That law of nature governs humankind as a "fixed and permanent rule of morals, which reason itself produces, and which persists, being a fact so firmly rooted in the soil of human nature." (47) Locke believed that human nature and reason unquestionably point to the existence of God as the divine Giver of natural law. A man can find "a definite rule of our duty from man's own constitution and the faculties with which he is equipped. For man is neither made without design nor endowed to no purpose... ," (48) Owen Anderson has written that natural law is necessary because without it, nothing is left to rule except the will of the powerful, the whim of the majority, or some arbitrary system of government. (49)

Though philosophy regards him eminently as a father of natural law, Locke was not without his critics. Professor Quabeck writes of five arguments Locke used to prove the existence of natural law. First is the concept of disagreement. That humans disagree on Tightness and wrongness, said Locke, does not mean that natural law does not exist. In fact, such disagreements prove that a law exists to be argued about; after all, who argues about something that does not exist? Humans disagree only on the substance and extent of natural law: (50) "[I]t follows... that there is such a law, when people contend about it so fiercely." (51) Second on Locke's list comes the conscience, which the world universally acknowledges to be part of the human constitution. The conscience judges the Tightness of a person's actions, and a judgment cannot be made without a law by which to judge. (52) Third, the world's physical laws, which govern everything occurring in the universe, prove the existence of natural law. One example of such a physical law is the earth's revolving completely around the sun in 365 days. If certain physical laws govern the universe, then certain moral laws govern mankind. Rhetorically, Locke asked: "Why should man form an exception, if everything is determined by laws?" (53)

Locke points to society as a fourth indication of the existence of natural law, namely: 1) that society enacts positive laws to regulate conduct and; 2) the keeping of promises and pacts. (54) Without these two societal components, communities would vanish. Because the rulers of a society have the most authority, they have the greatest ability to cause harm, and so society enacts positive laws as a constraint on that harm. These positive laws, in turn, must rest on natural law, without which they would have no binding nature. The making of a promise or pact, too, must rest on natural law rather than mere human will, for without natural law, "no one would feel obliged to keep a promise ..." (55) Finally, Locke points to morality as proof of natural law. Just as each person knows he has a conscience, each person also knows that right and wrong exist and that one must choose between the two. No morality means no duties, no prohibitions, no vices, no laudable choices, and no objectively wrong actions; (56) in such a state, each person would subjectively determine the Tightness or wrongness of an action. (57) There would, consequently, be no need for laws. And with the world bursting at the seams with law after law, this hardly makes any sense.

From natural law springs forth important precepts governing human conduct. Because natural law applies universally, these precepts apply universally. Locke identifies them as follows: first, the altogether forbidden (actions that always carry guilt, such as murder); second, the mental dispositions (sentiments such as the love of God and others, which must never burn out); third, the obligatory actions (acts that apply only in particular scenarios, such as helping a neighbor in need); and finally, the obligatory methods (acts that are not mandatory, but if one does them, he should do them in a consistent manner). (58)

Most people in our world acknowledge these principles in some variation or another. Justice Blackmun and defenders of abortion in the modern era posit that a woman has liberty to control her own body and make her own health decisions. In essence, they are making a natural law argument that the woman has the right to control her destiny. It falls squarely within a camp of natural law that rejects the existence of a sovereign who promulgates law independent of human will, holding that such will itself is the ultimate law. Thomas Hobbes, for example, advocated this theory in his day, arguing that men have the right to do whatever they want to do to achieve their own preservation and "are only obliged to adhere to norms if they can 'afford' it." (59) But as Professor Quabeck points out, a law of nature whose only master is the will of the individual, and "implies total liberty for the individual to achieve their aims. This leads to chaos and destruction." (60)

B. Moral Law

Natural law is not the only philosophical base for codifying the Hyde Amendment. Moral law requires it as well. During the 1858 Lincoln-Douglas debates, the future president and sitting senator argued whether the federal government should prohibit slavery in United States territories or allow the people of those territories to vote on it, thus preserving popular sovereignty. Lincoln endorsed the former position; his opponent, the latter (although Douglas opposed slavery on moral grounds). At one point, Lincoln famously said:
[W]hen Judge Douglas says he 'don't care whether slavery is voted up or
down,'... he cannot thus argue logically if he sees anything wrong
with it; . . When Judge Douglas says that whoever, or whatever
community, wants slaves, they have a right to them, he is perfectly
logical if there is nothing wrong in the institution; but if you admit
that it is wrong, he cannot logically say that anybody has a right to
do a wrong. (61)


Many rank Lincoln, tied with Washington, as the best president in United States history. He was deeply intelligent, brave in his leadership, with moral beliefs as firm as stone. But people recognized Lincoln as a moral leader even before he placed his hand on the Bible and swore the presidential oath. His remark on the morality of slavery during the debate with Douglas provides a glimpse at a deeper law we will now discuss, an unchangeable law which, like natural law, governs the universe: moral law.

One culprit carries responsibility for the abortion debate in America, and that culprit is what Professor Beckwith calls "moral relativism." (62) Put plainly, moral relativism posits that nothing is objectively right or wrong. A person at a crossroads between two choices should approach it subjectively according to his interpretation of right and wrong; he need not consider whether a higher authority on the matter exists. Everything in life boils down to a mere matter of taste: "So choosing an abortion, like choosing an automobile, a vacation spot, or dessert, is merely a matter of preference. Some people like Haagen Dazs[TM], others abortion. To each his own." (63) While it is undoubtedly true that choosing your favorite ice cream flavor or type of sushi roll is merely a matter of subjective taste, disproving moral relativism requires one to consider the existence of objective rules and values which hold eternal preeminence above any kind of subjective question. Most people in the United States can universally agree that killing, violence, dishonesty, and related vices carry objective wrongness. As Professor Hadley Arkes writes, "Once we come to the recognition that any act stands in the class of a wrong,... the logic of that recognition forbids us from treating that act any longer as a matter merely of personal taste or private choice." (64) Moral law generates much debate today, but what it requires is quite easy to understand.

Most societies recognize their moral law as stemming at least in part from religious authority, (65) and much of the Western world's moral codes comes from the Hebrew Bible and Judeo-Christian teachings. (66) This moral law should provide us guidance on how to treat others, especially those with great vulnerabilities such as the elderly and the very young. (67) C.S. Lewis wrote that moral law does not act "merely a social construct that exists to serve the interests of its creators." (68) The peace, security, and prosperity of any dignified society depends on it. (69) Morality touches on everything that happens in society. Because abortion results in the death of a living human being, which clearly has the ability to grow, abortion collides with the moral law the hardest.

To avoid being caught in the predicament of judicially legalizing an immoral practice, in Roe, Justice Blackmun dodged the question of when life begins: "We need not resolve the difficult question... When those trained in... medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer." (70) The answer to this question is the golden key to knowing the morality of abortion, because if the organism inside the mother's womb is a human life, then abortion is wrong because the moral law teaches that taking a human life is wrong. If the organism amounts to nothing more than a clump of cells, no different than my skin cells or liver cells, then abortion does not take life from a human being; it is thus amoral. Justice Blackmun fretted over the apparent absence of scholarly consensus on the question, so in the interest of soothing that fretting, let us briefly look to some of those "trained in... medicine" to find the answer. (71)

When the United States Senate considered a Human Life Bill only eight years after Roe, it invited numerous scholars to testify before the Judiciary Committee. Jerome LeJune, a well-known French geneticist, sat among their number. Dr. LeJune testified: "To accept the fact that after fertilization has taken a place a new human has come into being is no longer a matter of taste or opinion." (72) Other authorities echoed his conclusion. Dr. Morris Krieger said, "All organisms, however large and complex ... begin life as but a single cell. This is true of the human being, for instance, who begins life as a fertilized ovum." (73) Dr. Bradley Patten agreed: "The... meeting of a male and female sex cell are all preliminary to their actual union into a combined cell, or zygote, which definitely marks the beginning of a new individual." (74) In her testimony, Dr. Micheline Matthews-Roth explained that because a human life begins at conception, "this developing human always is a member of our species in all stages of its life." (75) Dr. Hymie Gordon emphasized that although religious and philosophical authorities may still disagree on the beginning of life, science has unquestionably decided the matter. (76) Drs. Ronan O'Rahilly and Fabiola Muller concurred that fertilization and conception constitute the beginning of life. (77) Professor Beckwith followed this line of authorities by concluding: "So from a strictly scientific point of view, it seems reasonable to believe that the development of an individual human life begins at conception." (78) These medical authorities have authoritatively concluded that human life begins at conception, long before there is even a fetus with enough form to abort. (Although some of these authorities had not yet published their cited materials in 1973, no one would argue that science experienced a growth spurt between 1973 and the 1980s and 1990s, and thus that no one knew such science after 1973. It clearly was known. That Justice Blackmun chose to remain in the dark on this most fundamental question is sad indeed.)

Locke wrote that nature's laws, including its moral laws, give no person power over another's life, except for his preservation and that of mankind. (79) In his Cruzan concurrence, the late Justice Antonin Scalia wrote that the supremacy of a human life's value denies mankind the right to change it. (80) Without entering a full discussion on logic and reasoning, it can be said at this point that (1) an unborn child has life from conception and thus is fully a member of humanity from that point, (2) causing the death of a human being objectively violates the moral law, and (3) each abortion causes the death of an unborn child. (81) Thus, each abortion objectively violates the moral law; deductively, this is a valid conclusion. (82)

That human life's supremacy affords it legal protection is generally not contested because as full-fledged members of the human community, the unborn enjoy a right to life just as living, breathing adults do. As George & Tollefsen explain, (83) the unborn child has an interest in his life not being taken away, just as a comatose person has an interest in being treated with dignity and his life not being taken away. The assumption that neither feels pain nor knows the experience of pleasure does not "assume away" the right to live. The right resides inherently in his being part of the human race, not in his condition, mental capacity, or age.

This unique blend of natural and moral law leads to the conclusion that abortion is morally wrong. One cannot determine the morality of abortion solely from the natural law because there must exist a moral code by which to judge a vice's morality. But neither can one argue against abortion solely on moral law grounds because there must be a higher law by which all mankind knows the moral law. All mankind can know abortion is morally wrong because it violates the moral law's command not to take a human life. All mankind can know the moral law because the law of nature gives them the ability to reason and figure out what the moral law says. Therefore, all men can know that abortion is morally wrong.

Now, a proponent of abortion will probably rebut the argument against abortion: "Don't like abortion? Don't have it." (84) This kind of response carries fatal flaws because it twists the abortion question from a debate over objective truths into a casual discussion of subjective preferences. (85) The morality of abortion is the heart of the whole debate so an abortion proponent telling an abortion opponent "Don't have one if you don't like it" is like Cain telling Abel "Don't like murder? Don't kill anyone." (86) Professor Beckwith correctly writes that "Understandably, the pro-lifer, committed to objective moral norms, finds such rhetoric perplexing as well as unpersuasive." (87) Such is the result of the rise of moral relativism in the United States today.

C. Constitutional Support

Not only should federal statutes such as the Hyde Amendment protect the unborn, constitutional provisions should as well. The first fifty-two words of the Constitution identify two classes of individuals who enjoy its rights: "ourselves" and "our Posterity." (88) The Framers' phrased the Preamble that way ("secure the Blessings of Liberty to ourselves and our Posterity...") to emphasize the importance of the rights both of those who were alive at the time of ratification and future generations. As James Joseph Lynch, Jr. explains, the Preamble's purpose "appears to be to include 'Posterity' on equal footing with, and the same rights as, 'ourselves' as evidenced by the parallel structure of the phrase. Therefore, 'Posterity,' as to those who are lives in being, is synonymous, if not with 'citizen,' surely with 'person.'" (89) Consequently, the Framers must have intended their posterity--the unborn generations to come--to be citizens as well as persons, and for purposes of the Preamble, those three terms may be used synonymously. (90)

At the time of the American founding, common law provided certain protections for the unborn. For example, property law regarded a fetus as a "life in being" for purposes of the Rule Against Perpetuities. (91) Additionally, the law of torts allowed recovery for prenatal injuries. (92) Considering the phrasing of the Preamble and the common law in place at the time, Lynch concludes:
Implicit in its Preamble is the concept of a social contract wherein
society promises the individual inalienable rights, in return for which
the individual promises to conform to the laws of society which do not
derogate from inalienable rights... as persons under the age of
capacity could not consent, the framers' intent is that adults are of
the class "ourselves," and all others of the class "Posterity," to
include lives in being, i.e., the unborn. (93)


Professor Raymond Marcin has reached a similar conclusion: "To put the matter quite simply, from a textualist perspective, the conclusion seems inescapable that one of the purposes for the establishment of our Constitution, identified as such in the Preamble, is to secure the blessings of liberty to yet-to-be-born persons." (94)

The teachings of the late John Rawls about the rights of the unborn deserve credence and mention here. When joined with Professor Marcin's writings, Rawls's jurisprudential philosophy provides a deeper, more philosophical look at the rights of posterity. The heart of Rawlsian philosophy is the original position and the veil of ignorance because of which "no one knows his place in society, his class position or social status; nor does he know his fortune in the distribution of natural assets and abilities, his intelligence and strength... his conception of the good... or even the special features of his psychology." (95) This veil extends to one's generational identity; this extension results in a lack of ability on the part of one generation to know the best interests of succeeding generations. (96) Rawls believed that no generation has affirmative duties to a succeeding generation; such obligations would be meaningless because society would spend its time arguing about what those duties were. (97) Instead, each generation should have an awareness of the well-being of posterity and conform its conduct accordingly. In the first edition of his well-known book A Theory of Justice, Rawls observes:
What is essential is that each person in the original position should
care about the well-being of some of those in the next generation, it
being presumed that their concern is for different individuals in each
case. Moreover for anyone in the next generation, there is someone who
cares about him in the present generation. Thus the interests of all
are looked after and, given the veil of ignorance, the whole strand is
tied together. (98)


The telos of Rawls' view would be a generational-style Golden Rule adhered to by all generations: "we must do unto the next generation as we would do ourselves." (99) Professor Marcin believes following this generational-style Golden Rule would result in the progressive protection of future generations. (100) The Rawls-Marcin approach does not interpret the Preamble as directly securing "the Blessings of Liberty" to posterity, but it should guide one in interpreting what the Constitution says about difficult and fundamental questions of liberty (101) and certainly to questions about the rights of the unborn.

V. CONGRESSIONAL ACTIONS

Separate legislation codifying the Hyde Amendment should be passed because the Affordable Care Act does not provide enough protection against taxpayer-funded abortions. In the days immediately preceding the Act's passage, a policy brawl erupted on Capitol Hill. That brawl pitted House Democratic leaders against their few pro-life members, such as Michigan's Bart Stupak, who threatened to vote against passage of the Act unless it included adequate abortion restrictions. (102) Speaker Nancy Pelosi realized she would have to make a deal with prolife Democrats if she wanted to steer the bill through the House of Representatives and to President Obama's desk. (103) The Senate passed the bill on Christmas Eve in 2009. (104) By the time Pelosi brought the bill to a vote in the House on March 21, President Obama had "made a deal" (105) with Stupak and other pro-life Democrats to secure their votes. (106) Under this deal, President Obama agreed to issue an executive order, which would ensure "[t]he Act maintains current Hyde Amendment restrictions governing abortion policy and extends those restrictions to the newly created health insurance exchanges." (107) The issuance of an executive order merely reaffirming existing Hyde Amendment principles was enough to assuage the concerns of Stupak and other pro-life Democrats, who agreed to vote for the bill. (108) "There will be no public funding for abortion in this legislation," Stupak announced at a press conference, hours before the bill narrowly passed the House with his vote. (109)

Unfortunately for Mr. Stupak, he did not grasp the extent to which he had been fooled. The executive order says "it is necessary to establish an adequate enforcement mechanism to ensure that federal funds are not used for abortion services... consistent with a longstanding Federal statutory restriction commonly known as the Hyde Amendment." (110) The order purported to extend Hyde Amendment protection to the new health exchanges, but such language is nonexistent. The order merely reiterates what the Act does: "the Act maintains current Hyde Amendment restrictions... [and] establishes a new Community Health Center (CHC) Fund...." (111) Neither concrete abortion restrictions nor language extending the Hyde Amendment to the new exchanges exist in the order. The order only makes findings, announces reaffirmations, and directs executive branch officials to establish implementation guidelines.

An executive order binds only employees of the executive branch, not congressmen and judges. And unlike a federal statute, an executive order has no force of law; the same president, or a subsequent president, can change or rescind it without any congressional action. That is why the outcries of abortion opponents were so deafening following the Obama-Stupak deal; they knew it would not accomplish anything. The protections President Obama purported to be in the order were false. As the National Right to Life Committee pointed out after the House vote, "[t]he executive order... changes nothing.... The president cannot amend a bill by issuing an order, and the federal courts will enforce what the law says." (112) Republican Leader John Boehner, who later as Speaker shepherded several Hyde Amendment codification bills through the House, echoed that the order was merely a sham." (113) But perhaps the words of the President's own chief of staff, Rahm Emanuel, are the most telling:
I came up with the idea of an executive order to allow the Stupak
amendment not to exist in law, but by executive order. And it was good
enough for Nancy Pelosi, Jan Schakowski here in Chicago, Rosa DeLauro,
Anna Eshoo, Nita Lowey--a number of women who are held up as honors by
NARAL and Planned Parenthood, who supported that bill and supported the
way to make progress. (114)


When interpreting a federal statute, courts must start with the words that Congress used in the statute, and Justice Elena Kagan has echoed Justice O'Connor's assumption "that the ordinary meaning of that language accurately expresses the legislative purpose." (115) The Supreme Court has said that courts must give "significance and effect" to each word in a statute. (116) These are axiomatic principles of statutory construction. So, let us look at some of the Act's language to see why the executive order was indeed a sham measure of protection for the unborn and why separate legislation is needed.

Congress funds the federal government annually through the appropriations process. (117) Most of the government is funded directly through an appropriation; appropriations set aside sums of money for specific purposes. (118) So when Congress passes the annual appropriations bills, it means the House and Senate are dividing up money from the U.S. Treasury to fund various government programs. The Health and Human Services Department, like the other federal executive departments, receives funding through an appropriations bill, and it is to all programs annually funded under that bill that the Hyde Amendment applies. These include family planning services under title X of the Public Health Service Act, (119) Medicaid, (120) the State Children's Health Insurance Program (121), and the health insurance program for federal employees. (122) So, if a Medicaid recipient wishes to have an abortion, she cannot use federal Medicaid dollars to pay for it. If a federal employee with federal health insurance wishes to have an abortion, she must use her own funds to pay for it. That is the essence of the Hyde Amendment.

To an abortion opponent, these sweeping restrictions on federal dollars paying for abortions may provide a breath of relief. It will not last long, however, once one realizes that Congress wrote the Affordable Care Act not to be subject to the regular appropriations process. In other words, the Act self-appropriates federal dollars for carrying out its purposes, removing it from the purview of the annual appropriations process and thus from the Hyde Amendment's requirements. (123) For example, the Act appropriates money for (1) the construction of school-based health centers (124) and Community Health Centers (125), (2) grants to states for setting up health insurance exchanges (126), (3) pregnancy assistance programs (127), and (4) maternity and infant home-visiting programs. (128) In congressional legalese, these kinds of self-appropriations are sometimes termed mandatory funding because the statute mandates that the whole amount be spent; there is no discretion not to spend a certain amount. (129)

This funding scheme leads to a moral problem: since Roe v. Wade, courts generally interpret federal health insurance plans as requiring abortion coverage unless Congress, in the appropriations bill, explicitly forbids it. (130) This could very well lead to ACA health insurance plans including abortion options; indeed, the Act's only provision prohibiting the expenditure of funds for abortion is in a section that codifies an existing prohibition. (131) The Act contains no such explicit prohibition, and President Obama's executive order merely reaffirmed the prohibition on abortion funding in programs in which such funding was already prohibited. No stand-alone provision exists in the Act restricting the use of funds appropriated to pay for abortions in the exchanges.

This is why separate legislation is needed to codify the Hyde Amendment in all health programs, whether they are funded under the regular HHS appropriations process or under the Affordable Care Act. Without such legislation, abortion options could very well be included in the plans of American women who receive health insurance under Obamacare, given the absence of an explicit congressional prohibition and the implications of Roe as the courts and administrative agencies have interpreted them.

The Affordable Care Act lacks language explicitly prohibiting federal money appropriated thereunder from being used to pay for abortions had by women who receive health insurance under the Act. President Obama issued an executive order that did not touch the Act and merely reinforced an existing prohibition on abortion funding in normal HHS appropriations programs. The programs funded under the Act itself are thus exposed to an abortion loophole. This loophole will remain wide open until Congress passes separate legislation applying the Hyde Amendment to the Affordable Care Act.

VI. CONCLUSION

John Locke said that a nation's legislative power exists for the purpose of preserving society, and that such power comes only from those who have consented to being governed by it. (132) Government exists not only to protect its citizens from outside threats, but also from the aggression of internal threats. (133) Under the Affordable Care Act, none are at a greater risk of aggression than the unborn. In his popular pamphlet Common Sense, Thomas Paine wrote:
I once felt that kind of anger, which a man ought to feel, against the
mean principles that are held by the tories: A noted one, who kept a
tavern at Amboy, was standing at his door, with as pretty a child in
his hand, about eight or nine years old, as I ever saw, and after
speaking his mind freely as he thought was prudent, finished with this
unfatherly expression, "Well, give me peace in my day." Not a man lives
on the continent but fully believes that a separation must some time or
other finally take place, and a generous parent should have said, "If
there must be trouble, let it be in my own day, that my child may have
peace"; and this single reflection, well applied, is sufficient to
awaken every man to duty. (134)


This article has argued three reasons for codifying the Hyde Amendment. First, natural law gives the unborn the right to live and provides that they are members of the human race. Second, moral law forbids the taking of a human life. All humans can know the moral law through the natural law and reason, and so all humans can know that abortion objectively violates the moral law. Finally, the Affordable Care Act does not restrict abortion funding in its insurance exchanges, contrary to what its authors say. Loopholes exist through which federal dollars could be used to procure abortions. Congress should realize the moral implications of these loopholes, take a stand for what is objectively right, and pass stand-alone legislation codifying the Hyde Amendment as soon as possible.

Burton Walker (*)

(*) J.D., Faulkner University, Thomas Goode Jones School of Law (2018).

(1) Gerhard Peters & John T. Woolley, Presidential Debate in Baltimore (Reagan-Anderson), THE AMERICAN PRESIDENCY PROJECT (Sep. 21, 1980), http://www.presidency.ucsb.edu/ws/?pid=29407.

(2) H.R. 3962, 111th Cong. [section] 265 (2009).

(3) H.R. 3590, 111th Cong. (2010).

(4) Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010).

(5) See, e.g., H.R. 7, 115th Cong. (2017); H.R. 7, 113th Cong. (2014); H.R. 358, 112th Cong. (2011).

(6) FRANCIS J. BECKWITH, DEFENDING LIFE: A MORAL AND LEGAL CASE AGAINST ABORTION CHOICE 18 (Cambridge Univ. Press 2007).

(7) Roe v. Wade, 410 U.S. 113, 119, 164 (1973).

(8) BECKWITH, supra note 6, at 19.

(9) See, e.g., Eisenstadt v. Baird, 405 U.S. 438 (1972) (contraception for unmarried couples); Katz v. United States, 389 U.S. 347 (1967) ('reasonable expectation' of privacy); Loving v. Virginia, 388 U.S. 1 (1967) (interracial marriage); Griswold v. Connecticut, 381 U.S. 479 (1965) (contraception for married couples); Skinner v. Oklahoma, 316 U.S. 535 (1942) (sterilization); Pierce v. Soc'y of Sisters, 268 U.S. 510 (1925) (education).

(10) Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 833 (1992).

(11) Gonzales v. Carhart, 550 U.S. 124, 167 (2007).

(12) Roe, 410 U.S. at 164.

(13) Id.

(14) BECKWITH, supra note 6, at 19.

(15) Id.

(16) Id. at 20.

(17) Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416, 458 (1983) (O'Connor, J., dissenting).

(18) BECKWITH, supra note 6, at 20.

(19) Doe v. Bolton, 410 U.S. 179, 192 (1973); BECKWITH, supra note 6, at 20.

(20) BECKWITH, supra note 6, at 20.

(21) S. REP. No. 98-149, at 6 (1983); Beckwith, supra note 6, at 20.

(22) See Thornburg v. Am. Coll. of Obstetricians and Gynecologists, 476 U.S. 747, 783-84 (1986) (Burger, C.J., dissenting).

(23) Jan Hoffman, Rate of U.S. Abortions Hits Lowest Since Roe v. Wade, N.Y. TIMES, Jan. 18, 2017 at D4.

(24) TARA C. JATLAOUI ET AL., CENTERS FOR DISEASE CONTROL AND PREVENTION, ABORTION SURVEILLANCE--UNITED STATES, 2013 1 (2016).

(25) John T. Noonan, Jr., An Almost Absolute Value in History, in THE MORALITY OF ABORTION: LEGAL AND HISTORICAL PERSPECTIVES 1, 4 (John T. Noonan, Jr., ed., Harvard Univ. Press, 1970).

(26) Id. at 9.

(27) See id. at 10.

(28) Id.

(29) Id. at 11.

(30) Id.

(31) Noonan, supra note 25, at 11 (translating Athenagoras, Embassy for the Christians, in 6 PATROLOGIA GRAECA 889, 919 (J. P. Migne ed., 1857-66)).

(32) Noonan, supra note 25, at 11-12.

(33) Id. at 12 (translating TERTULLIAN, 1 APOLOGETICUM AD NATIONES ch. 15).

(34) Noonan, supra note 25, at 13 (translating DE ANIMA ch. 25 (J.H. Waszink ed., 1947)).

(35) FRANZISKA QUABECK, JOHN LOCKE'S CONCEPT OF NATURAL LAW FROM THE ESSAYS ON THE LAW OF NATURE TO THE SECOND TREATISE OF GOVERNMENT 9 (R. Benolken et al. eds., LIT Verlag 2013).

(36) JUSTIN BUCKLEY DYER & MICAH J. WATSON, C.S. LEWIS ON POLITICS AND THE NATURAL LAW 26 (Cambridge Univ. Press, 2016).

(37) See Raymond B. Marcin, "Posterity" in the Preamble and A Positivist Pro-Life Position, 38 AM. J. JURIS. 273, 274 n.2 (1993).

(38) DYER & WATSON, supra note 36, at 44 (quoting C.S. LEWIS, MERE CHRISTIANITY 5 (HarperCollins, 2001)).

(39) Natural law, BLACK'S LAW DICTIONARY (4th ed. 2011).

(40) See, generally, ROBERT P. GEORGE & CHRISTOPHER TOLLEFSEN, EMBRYO: A DEFENSE OF HUMAN LIFE 86 (Doubleday, 2008).

(41) QUABECK, supra note 35, at 10.

(42) See id. at 10-11.

(43) See DYER & WATSON, supra note 36, at 49.

(44) See. e.g., id.; FREDERICK CHARLES COPLESTON, A HISTORY OF PHILOSOPHY, VOL. I: GREECE AND ROME 323 (Search Press, 1994).

(45) See JOHN LOCKE, TWO TREATISES ON GOVERNMENT 79 (Maestro Reprints 2013) (1690).

(46) See QUABECK, supra note 35, at 30.

(47) Id. at 56.

(48) Id. at 39-40.

(49) See DYER & WATSON, supra note 36, at 47.

(50) See QUABECK, supra note 35, at 31.

(51) Id.

(52) See id.

(53) Id. at 32.

(54) See id. at 32-33.

(55) Id. at 33.

(56) See BECKWITH, supra note 6, at 3.

(57) See QUABECK, supra note 35, at 33.

(58) See id. at 46-47.

(59) Id. at 12-13.

(60) Id. at 12.

(61) BECKWITH, supra note 6, at 16; see THE COLLECTED WORKS OF ABRAHAM LINCOLN 256-57 (Roy P. Basler ed., Rutgers Univ. Press, 1953).

(62) BECKWITH, supra note 6, at 3.

(63) Id.

(64) HADLEY ARKES, FIRST THINGS: AN INQUIRY INTO THE FIRST PRINCIPLES OF MORALS AND JUSTICE 25 (Princeton Univ. Press, 1986).

(65) See GEOFFREY C. HAZARD, JR. & DOUGLAS W. PINTO, JR., MORAL FOUNDATIONS OF AMERICAN LAW 1 (Instersentia Publishing, Ltd., 2013).

(66) See id. at 49.

(67) See GEORGE & TOLLEFSEN, supra note 40, at 83.

(68) DYER & WATSON, supra note 36, at 45.

(69) See HAZARD & PINTO, supra note 65, at 2.

(70) Roe v. Wade, 410 U.S. 113,159 (1973).

(71) Id.

(72) The Human Life Bill: Hearing on S. 158 Before the Subcomm. On Separation of Powers of the S. Comm. on the Judiciary, 97th Cong. 7-8 (1981) [hereinafter Hearing] (statement of Dr. Jerome L. LeJune); see also NORMAN L. GEISLER, CHRISTIAN ETHICS: OPTIONS AND ISSUES 149 (Baker, 1989).

(73) Hearing, supra note 72, at 8 (statement of Dr. Morris Krieger); see also MORRIS KRIEGER, THE HUMAN REPRODUCTIVE SYSTEM 88 (Sterling Publishing, 1969).

(74) Hearing, supra note 72, at 8 (statement of Dr. Bradley Patten); see also BRADLEY M. PATTEN, HUMAN EMBRYOLOGY 43 (McGraw-Hill 3d ed. 1968).

(75) Hearing, supra note 72, at 8 (statement of Dr. Micheline Matthews-Roth).

(76) Hearing, supra note 72, at 9 (statement of Dr. Hymie Gordon).

(77) RONAN O'RAHILLY & FABIOLA MULLER, HUMAN EMBRYOLOGY AND TERATOLOGY 8 (2d ed. 1996).

(78) BECKWITH, supra note 6, at 69.

(79) See LOCKE, supra at 45, at 126.

(80) RONALD DWORKIN, LIFE'S DOMINION: AN ARGUMENT ABOUT ABORTION, EUTHANASIA, AND INDIVIDUAL FREEDOM 12 (Alfred A. Knopf, Inc., 1993); Cruzan v. Dir., Missouri Dept. of Health, 497 U.S. 261, 292-301 (1990) (Scalia, J., concurring).

(81) BECKWITH, supra note 6, at 226.

(82) Id.

(83) See GEORGE & TOLLEFSEN, supra note 40, at 94.

(84) See BECKWITH, supra note 6, at 5.

(85) Id.

(86) See Genesis 4:8 (Cain murdered his brother Abel, which resulted in God marking Cain as a fugitive and a wanderer for the rest of his days.); see also BECKWITH, supra note 6, at 5.

(87) BECKWITH, supra note 6, at 5.

(88) U.S. CONST, pmbl.; see also James Joseph Lynch, Jr., Posterity: A Constitutional Peg for the Unborn, 40 AM. J. JURIS. 401, 401 (1995).

(89) Lynch, supra note 88, at 401.

(90) See id. at 402.

(91) Id. at 402; see also JOHN CHIPMAN GRAY, THE RULE; AGAINST PERPETUITIES (Beard Books 4th ed. 2002) 220-22 (1886).

(92) Lynch, supra note 88, at 402; see generally Sinkler v. Kneale, 164 A.2d 93, 94 (Pa. 1960); Mcintosh v. Dill, 205 P. 917 (Okla. 1922); HALSBURY'S LAWS OF ENGLAND [section] 132, 135 (1st ed. 1911).

(93) Lynch, supra note 88, at 403-04.

(94) Marcin, supra note 37, at 275.

(95) JOHN RAWLS, A THEORY OF JUSTICE 118 (Harvard Univ. Press rev. ed. 1999).

(96) See Marcin, supra note 37, at 292.

(97) See id. at 293.

(98) Id at 292 (quoting JOHN RAWLS, A THEORY OF JUSTICE 128-29 (Harvard Univ. Press, ed. 1971)).

(99) Marcin, supra note 37, at 293.

(100) See id.

(101) See id.

(102) Jodi Kantor, Abortion Foe Defies Party on Health Care Bill, N.Y. TIMES, Jan. 6, 2010, at A1.

(103) See Nate Silver, For Pelosi, Many Paths to 218, FiVETHlRTYEiGHT (Dec. 26, 2009, 3:54 PM), https://fivethirtyeight.com/features/in-house-many-paths-to-218/.

(104) Robert Pear, Senate Passes Health Care Overhaul on Party-Line Vote, N.Y. TIMES, Dec. 25, 2009, at A1.

(105) Lori Montgomery & Shailagh Murray, In Deal with Stupak, White House Announces Executive Order on Abortion, THE WASH. POST (Mar. 21, 2010, 4:22 PM), http://voices.washingtonpost.com/44/2010/03/white-house-announces-executiv.html.

(106) Patrick O'Connor, History in Sight for Democrats, POLITICO (Mar. 21, 2010, 3:10 PM), www.politico.com/story/2010/03/history-in-sight-for-democrats-034767.

(107) Exec. Order No. 13535, 75 Fed. Reg. 15599 (Mar. 24, 2010).

(108) See Choice, Life Groups Slam Obama Order on Abortion Funding, FOXNEWS (Mar. 21, 2010), www.foxnews.com/politics/2010/03/21/stupak-says-health-care-deal-looming-abortion-funding.html.

(109) Id.

(110) Exec. Order No. 13535, 75 Fed. Reg. at 15599.

(111) See id. at 15600.

(112) Choice, Life Groups Slam Obama Order on Abortion Funding, supra note 108.

(113) Press Release, Speaker Paul Ryan's Press Office, Boehner: "The American People Will Take Notice, and They Will Not Forget," (Mar. 23, 2010), http://www.speaker.gov/press-release/behind-closed-doors-president-signs-phony-order-abortion.

(114) David Freddoso, Rahm on the Stupak Amendment, THE S.F. EXAMINER (Jan. 18, 2011), https://archives.sfexaminer.com/sanfrancisco/rahm-on-the-stupak_amendment/Content?oid=2168010 (emphasis added).

(115) Milner v. Dep't of the Navy, 562 U.S. 562, 569 (2011) (quoting Park 'N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 194 (1985)).

(116) Washington Mkt. Co. v. Hoffman, 101 U.S. 112, 115 (1879).

(117) U.S. CONST, art. I, [section] 9, cl. 7.

(118) Appropriation, BLACK'S LAW DICTIONARY (10th ed. 2014).

(119) See Consolidated Appropriations Act of 2017, Pub. L. No. 115-31, 131 Stat. 135, 521, 529.

(120) See id. at 529.

(121) See id. at 530.

(122) See id. at 529-30.

(123) See 157 CONG. REC. H6871 (daily ed. Oct. 13, 2011) (statement of Rep. Chris Smith).

(124) Patient Protection and Affordable Care Act, 42 U.S.C. [section] 280h-4 (2016).

(125) [section] 254b-2.

(126) [section] 18031.

(127) [section][section] 18202, 18204.

(128) [section]711.

(129) See 157 CONG. REC. H6876 (daily ed. Oct. 13, 2011) (statement of Rep. Virginia Foxx).

(130) See 157 CONG. REC. H3019 (daily ed. May 4, 2011) (statement of Rep. Phil Roe).

(131) See Patient Protection and Affordable Care Act, 42 U.S.C. [section] 18023(b)(1) (B)(i) (2016).

(132) See LOCKE, supra note 45, at 126.

(133) See GEORGE & TOLLEFSEN, supra note 40, at 208-09.

(134) Marcin, supra note 37, at 294 n.65.
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