To the Contrary: A Plea for Calm: Reflection on Bart Stupak

'We cannot get more than 45 pro-life votes in the Senate. The bishops are right, statutory law is better than an executive order. We can´t get there.'

WASHINGTON, DC (Catholic Online) - (Editors Note: The publishing of this Opinion piece does not indicate agreement. It simply presents the position of a faithful Catholic scholar who presents a different position than many have presented concerning this distressing turn of events.) 

Those who cherish the Pro-Life cause, and those who understand that care for the poor does not necessarily have to involve massive intervention by the Federal government, are understandably dismayed by the passage of President Obama´s Heath Care Bill on Sunday by the House of Representatives. That dismay also, understandably, can give rise to passion and grief. And that grief --somewhat less understandably-- can also tempt us to look for someone upon whom to focus our anger: a scapegoat, a Judas perhaps. Congressman Bart Stupak is the one being singled out for that treatment now. He and his small coterie of "Pro-Life Democrats" in the House allegedly sold-out the unborn by agreeing to an 11th hour deal with the White House to accept an executive order from the President reaffirming the status quo on Federal funding for abortion in return for voting for the Health Care legislation.
 
The narrative being told is that either Stupak and Co. were naďve "chumps" who did not realize that such an executive order is legally "not worth the paper it is printed on," or (more likely) that under pressure from their Democratic colleagues to sign the Bill and insure its passage, they "caved-in" on their commitment to defend the unborn to save their own political backsides. In other words, at the eleventh hour, they chickened-out. This was basically the argument made by Ms. Jennifer Hartline in an editorial that appeared on Catholic Online on March 22nd. She claimed that Stupak and his confreres must have understood "how easily the executive order can be rescinded and challenged in court, He must understand all that because every one of his colleagues does.... It seems like Judas is alive and well everywhere in Washington." Similarly, Bart Stupak was stripped of a "Defender of Life "Award that he was about to receive by the Susan B. Anthony List. The National Right to Life Committee also condemned Stupak´s "deal" with President Obama. Let´s step back, take a deep breath, and for a moment put ourselves in the shoes of Congressman Stupak. He (along with about 7 colleagues in the House) are Democrats who wanted to defend the Right to Life, but otherwise generally agree with the provisions of the health care legislation before them, including the moral imperative to provide universal access to health insurance for all Americans.

Beautifully Designed Prayer Cards Now 15% Off

On the morning of Sunday, March 21st, all of us woke up and turned on the news broadcasts and heard the same thing: the Democratic Leadership was now "confident" that they had enough votes to get the bill passed (indeed, the Republican leadership also was admitting that the Democrats probably had enough votes to pass the legislation), and Speaker Nancy Pelosi was evidently so confident of this fact that she felt no need to budge even an inch in her meeting with Stupak and his anti-abortion colleagues, refusing to allow them a separate vote on the abortion issues related to the bill. Thus, as far as Stupak knew at the time (and we are only morally responsible for what we can reasonably be expected to know at the time of our moral decision-making, not for what we find out later based on facts that only subsequently come to light), the House of Representatives was almost certainly going to enact legislation that for the first time in over three decades would permit the use of federal funds for the killing of unborn children. And there was absolutely nothing that he could do about it. But Stupak knew that he still had some small leverage. The White House wanted to be completely sure that they had enough votes to pass the Health Care Bill, and they also preferred to pass it by a comfortable margin, rather than by just one or two votes (the political optics of a comfortable margin on controversial legislation being so much better for the President´s reputation as an effective leader). Thus,  in return for their votes, Stupak and his anti-abortion colleagues went into negotiations with the White House and used this leverage as best they could, to wrest from a pro-abortion President an executive order clarifying that the President understood that the legislation about to be passed maintains "a long-standing Federal statutory restriction [on the use of Federal funds for abortion] that is commonly known as the Hyde Amendment," and he commits himself to "establish an adequate enforcement mechanism to ensure that Federal funds are not used for abortion services." A spokesman for the US Conference of Catholic Bishops, and statement by the National Right to Life Committee were both quick to respond that executive orders cannot trump statutory law. As the NRLC statement put it: "The executive order promised by President Obama was issued for political effect. It changes nothing. It does not correct any of the serious pro-abortion provisions in the bill. The president cannot amend a bill by issuing an order, and the federal courts will enforce what the law says". But wait a minute. The health care legislation that was passed by the House "says" nothing at all about abortion. That is surely of some legal significance. By issuing his executive order, the President did not attempt to "trump" statutory law or try to "amend" the provisions of the bill in any way, he simply clarified his understanding of a bill that he was signing into law on a matter on which the bill was silent, and in line with existing federal legislation. That will surely be taken into account if (or perhaps we should say, when) the implementation of this executive order is challenged in the courts by pro-choice activists. Whether that distinction will be seen as decisive by the courts is uncertain. Even if it is not seen as decisive, and the executive order is overturned by the courts some months down the line, by signing the executive order President Obama has put himself in a political "pickle" of sorts. If the courts overturn the order, and federal funds start to be used directly for abortions (at, for example, the Community Health clinics funded by the bill), then President Obama will have to answer for the fact that he promised the electorate (which is now a Pro-Life majority electorate)  and the  anti-abortion Democrats in the House (who agreed to vote for the bill on that basis) that his health care legislation would not affect the status quo on federal funding for abortion, and then he failed to effectively uphold that promise, or he will have to take legislative steps (very unpopular with his left-wing base) to keep his promise.

Secret Archives of the Saints, Subscribe Today

Either way, there is political egg on his face. Moreover, if, as expected, the Republicans make major gains in the House and Senate elections this November, Congress may then have enough votes to pass legislation explicitly applying the Hyde amendment restrictions on abortion funding to the health care reform provisions, thus challenging Pres. Obama directly to keep his promises or veto the legislation and break them. So much for the President of "Change" in Washington. Obama would come off as just another lying and conniving Washington politician, as too many already suspect that he is. For the same reason, Obama cannot just rescind the executive order without giving his opponents a stick to beat him with in the court of public opinion. It is a funny thing about putting your commitments in writing -whether or not they are legally binding, and whether or not you really intended to abide by them, people still expect you to live up to them after all. President Obama may find that out the hard way in the months or years to come. So it is not clear that the executive order negotiated by Congressman Stupak "changes nothing." It certainly does not change most of what Pro-Life Catholics wanted to be changed about the health care legislation. But it was better than doing nothing at all. As Congressman Stupak himself said: "We cannot get more than 45 pro-life votes in the Senate. The bishops are right, statutory law is better than an executive order. We can´t get there. So what do you have, nothing? Or do you want the same executive order that has the force of law? I´ll take the executive order." On one level, Ms. Hartline seems to understand this. She wrote that perhaps Stupak "scrambled to find some way of mitigating the damage, lessening the power of the Senate language, putting up some kind of sandbag against the tide. An Executive Order requiring Hyde be upheld... it was a last-ditch effort and he went for it. A somewhat noble scenario, I suppose, But I still would rather have had him just stick to voting NO." But why? What would that have accomplished? Symbolic gestures of defiance against injustice are sometimes necessary, but not at the expense of doing something that might be able to lessen the harm actually being inflicted on the innocent. Deacon Fournier, Editor of Catholic Online, has reminded us of the relevance in this case of the words of Pope John Paul II in Evangelium Vitae, section 73: "When it is not possible to overturn or completely abrogate a pro-abortion law, an elected official, whose absolute personal opposition to procured abortion was well known, could licitly support proposals aimed at limiting the harm done by such a law and at lessening its negative consequences at the level of general opinion and public morality. This does not in fact represent an illicit cooperation with an unjust law, but rather a legitimate and proper attempt to limit its evil aspects". Ms. Hartline will have nothing of such a defense of Congressman Stupak´s intentions and actions: "Then I watched as the vote happened, and I saw that the final count was only 219 [in favor of the bill]. Stupak and his group made a difference alright. In the wrong direction! The noble scenario I imagined went right out the window. The final blow came when I watched him on CSPAN as the Republicans put forth the Motion to Recommit. Stupak stood up and turned on his pro-life republican colleagues in away that left my jaw in my lap. He called the motion an attempt to politicize unborn life rather than protect it. He said it was Democrats who have stood up for the protection of unborn children, Democrats who have stood up for the principle of life, and he slammed his friends on the other side for attempting to derail the health care bill yet again". No doubt many Pro-Life Catholics, watching these events unfold on television, felt the same way as Ms. Hartline did: "if only Stupak and his anti-abortion Democratic colleagues had held firm and not sold their votes for that executive order, the health care legislation that threatens the lives of  thousands of unborn children would never have become law at all!" People who argue this way, however, are engaging in what is commonly known as "Monday-morning quarterbacking." Sure, we know now, after the fact, that if only Stupak and Co. had held firm the bill might never have passed. Those 5-7 votes might very well have tipped the scales the opposite way. But Bart Stupak is not morally responsible for knowing what everyone could only know in hindsight, only after every Congressman´s vote was finally publicly declared. Again, for all he knew - for all everyone knew on Sunday morning, the morning of the vote - all signs pointed to the fact that the Democratic leadership had the votes to pass the bill even without the support of Stupak´s little band of Pro-Life Democrats. Given that situation, given what Stupak could reasonably have been expected to know or surmise at the time, he acted prudently to limit the harm being done to the innocent unborn, in accordance with the guidelines given to us by Pope John Paul II   (as quoted above). For this Congressman Stupak should be commended, not pilloried, by Catholics who understand Moral Theology. Besides, we do not know for sure that if Stupak had abandoned any thought of a deal with the White House and simply voted against the health care bill on Pro-Life grounds, that that in-itself would have been enough to defeat the legislation. First of all, we do not know for sure that all of Stupak´s 5-7 anti-abortion colleagues would have stood with him in such a course of action. Secondly, we do not know how many Democrats, hearing that Stupak and Co. had signed the deal with the White House for the executive order, then felt free actually to vote against the bill (thus protecting themselves from the wrath of their constituents) because they believed that the Democratic leadership now had a comfortable margin to pass it anyway. We will probably never know these things. But unless we do -and unless we have good grounds for believing that Congressman Stupak could have known such things before he entered into negotiations with the White House, we can have no solid grounds for morally condemning the actions he took. The criticisms being leveled at Congressman Stupak are not unlike those frequently leveled at Pope Pius XII for his failure to speak out clearly and directly against the Holocaust. Instead he took actions behind the scenes to "limit the harm" done to the Jews of Europe by rescuing many tens of thousands of them, hiding them in convents and monasteries, and secretly transporting them to safety in Spain and America. The Pope reasoned at the time that merely speaking out during the war itself in thunderous tones against the Nazi policy of genocide would do nothing to rescue innocent Jews from slaughter; in fact, he had good reason to believe (from what happened to the Jews in Holland when the Dutch bishops tried just such a tactic) that it would probably only provoke the Nazi´s into tightening their grip on his own freedom of action, and thereby preventing him, and the Church in general throughout occupied Europe, from being able to rescue any Jews at all. Thus, he chose what he saw as limited, effective action to lessen harm, rather than grand, dramatic and symbolic gestures that, so he reasonably believed, would only make things worse. "Ah, but now we know: if only he had spoken out, say, in 1944 when the Allied armies were on the march, then he might at least have prevented that last terrible year of the slaughter of the Jews...." Well, maybe, but we are operating with the benefit of hindsight: we know the Allies were actually going to win the war, and that the Allies in the west were going to liberate at least half of Europe, and not Stalin´s brutal forces from the east. But Pope Pius XII did not know all that at that time, nor can he be held morally responsible for knowing that. Many would argue that in the circumstances, and based on what he reasonably could be expected to know and on the options before him, he did the right thing. Bart Stupak, arguably, did the right thing to to "lessen harm." Let us not publicly lynch him in the Catholic Pro-Life Press unless we are sure beyond any reasonable doubt that he did not. Finally, a word about Ms. Hartline's horror at Congressman Stupak´s final, public words in defense of the Democratic Party´s record on supporting human life. All Pro-Life Catholics recognize that the Democrat´s record on supporting the life of the unborn is abysmal, to say the least. But Congressman Stupak was evidently not referring to that. He was evidently referring to his party´s historic defense of the dignity of life at other stages of the human journey. After all, it was primarily the Democrats who created the Social Security system and the Medicare system, both of which have preserved so many elderly Americans from poverty and misery in their final years. It was the Democrats primarily who created the Food Stamps program, which really did help to significantly reduce malnutrition among the poor in the United States. These programs certainly have inefficiencies and cost over-runs, and one could argue that they need to be reformed and even decentralized, but I know of no one who would do away with such government intervention on behalf of the poor and the elderly altogether, or who could plausibly argue that such a move would be in accord with Catholic Social Teaching. Moreover, in the midst of all the wrangling over health care reform, it is only the Democrats who made realistic proposals for reforms that could possibly lead to the extension of access to health insurance for the vast majority of those Americans who at present cannot afford such insurance. The legislation they passed is deeply flawed. And the Republicans, to their credit put forward badly needed cost-control measures such as TORT reform that President Obama sadly failed to take on-board (despite promising to do just the opposite). But unless and until the Republican Party becomes a party that truly takes seriously the moral necessity and urgency for an adequate social welfare safety net, then all of the "Pro-Life" merits do not lie upon the Republican side of the aisle alone. Not if Pro-Life includes being Pro The-Whole-of-Life, and not just the beginning of it. The authentic Pro-Life movement, after all, is not just the Republican Party at prayer: it is part of the movement for a whole new Culture of Life that supports the dignity of life at every stage, from conception to its natural end. In the struggle for that Culture of Life, Pro-Life Democrats such as Bart Stupak and his colleagues should have an honored place, even if we disagree in the end with the actions they took last Sunday. They are our allies far more than our enemies. Let´s cool off, and treat them that way.

Announcing NEW Catholic Online News - Visit Today!

-----

Dr. Robert Stackpole is an Associate Professor of Theology at Redeemer Pacific College and the Director of the John Paul II Institute of Divine Mercy.

---

'Help Give every Student and Teacher FREE resources for a world-class Moral Catholic Education'