March 21, 2010 -- For months, Bart Stupak of Michigan and a group of fellow House Democrats withheld support for their party's health care overhaul unless leaders would agree to include House-passed language to impose an ironclad ban on federal funding of abortion.
But on March 20, as a critical series of votes approached, members of Stupak's bloc came to the realization that Democratic leaders were gathering enough votes to pass the overhaul no matter how the abortion opponents voted. So they agreed to a side deal with the Obama administration: The holdouts agreed to support the legislation and, in exchange, President Obama agreed to issue an executive order to clarify that no taxpayer dollars could be spent on abortion in the reconfigured health care system.
"This bill was going to go through," Stupak said at a March 21 news conference, during which he was joined by several other anti-abortion Democrats. "So therefore, to protect the sanctity of life, what was our best enforceable option?"
Among the legislators present were Marcy Kaptur and Steve Driehaus of Ohio, Kathy Dahlkemper of Pennsylvania, and Alan B. Mollohan and Nick J. Rahall II of West Virginia.
The deal did little to defuse the passionate debate over abortion, though. Almost as soon as Stupak finished his remarks, Republicans and the U.S. Conference of Catholic Bishops dismissed the executive order as a fig leaf that would not carry any weight.
"The law of the land trumps any executive order, which can be reversed or altered at the stroke of a pen by this or any subsequent president without any congressional approval or notice," House Minority Leader John A. Boehner, R-Ohio, said in a statement.
"Make no mistake, a 'yes' vote on the Democrats' health care bill is a vote for taxpayer-funded abortions," he added.
Some Democrats who oppose abortion took similar stands. Daniel Lipinski of Illinois did not appear at Stupak's news conference, and he said earlier in the day that he was "not part" of discussions on the executive order.
White House communications director Dan Pfeiffer responded that Obama's order would uphold existing bans on abortion funding in federal law.
"The health care legislation's restrictions against the public funding of abortions cannot be circumvented," Pfeiffer said.
During negotiations on the overhaul plan (HR 3590, HR 4872), Democratic leaders dispensed with the House abortion language and replaced it with a Senate provision that abortion foes deem less restrictive. Lawmakers like Stupak are concerned that funding in the legislation for community health centers and other programs could actually be used to provide abortion services, because individual sections of the bill dealing with the programs are silent on the issue.
Congressional Democratic leaders and the White House have maintained that the Senate language addresses all possible circumstances in which abortion could be provided.
And House lawmakers favoring abortion rights said Sunday that they signed off on the executive order precisely because it does not go beyond the Hyde amendment, which has been renewed in annual appropriations bills since the 1970s and bars federal funding for abortion unless the pregnancy is the result of rape or incest or threatens the woman's life.
"We said we would compromise to current law in making this a health care bill, not an abortion bill, and that's exactly what the executive order does," said Diana DeGette, D-Colo.
The key part of the executive order states: "The Act maintains current Hyde Amendment restrictions governing abortion policy and extends those restrictions to the newly-created health insurance exchanges. Under the Act, longstanding federal laws to protect conscience . . . remain intact and new protections prohibit discrimination against health care facilities and health care providers because of an unwillingness to provide, pay for, provide coverage of or refer for abortions."
Meeting with Pelosi
Neither side took credit for coming up with the language. Around noon on Sunday, lawmakers said they were summoned to the Capitol offices of Speaker Nancy Pelosi, D-Calif., to meet with White House staff. Two groups of lawmakers — one supporting abortion rights and one opposing abortion — were then sent to separate rooms to review a draft of the executive order. Within hours, the Stupak camp rallied behind the health care overhaul.
But both sides predicted that the fight would continue.
"We think it's something we can fix later," DeGette said. "We would like to overturn the Hyde amendment."
Stupak acknowledged that he would have preferred a strong statutory ban over an executive order. But he said there was little hope that such language could get through the Senate under the reconciliation procedure Democrats used.
"We cannot get more than 45 pro-life votes in the Senate," he said, adding that he would continue to work on legislation to strengthen abortion restrictions after the health care overhaul was passed.
Alan K. Ota and Alex Wayne contributed to this story.