Even if Obama’s HHS writes a policy saying that abortions won’t be covered under the Preexisting Conditions Insurance Program, there is no federal law preventing the PCIP from paying for abortions. The first claim for abortion services that is denied by PCIP will be challenged in court by pro-abortion advocates and the courts will decide whether or not the program will pay for abortions.
That’s almost certainly true, unfortunately. Here’s what it comes down to: if a court finds that the law Congress passed requires that abortions be paid for, an Obama executive order will do literally nothing to stop that. Executive orders deal with how a law is executed, and the president can only act where he has discretion to act. So if Congress passes a law that says “Do X,” the president can sign an EO saying that we’ll do X using all union labor, or do X in a particular manner, etc., but he can’t legally order that we won’t do X.
That’s the critical thing that pro-lifers have been concerned about with Obamacare. The bill which passed looks, to all the world, as if it covers payments for at least some abortions. Pro-choicers claimed it didn’t, but this claim has been incredibly suspect from the start, for a simple reason: if the bill didn’t cover abortions, why were they such big fans? When it came down to Stupak and a few other “pro-life” Democrats standing between Obamacare passing and failing, Obama agreed to pass an Executive Order which would ensure that the bill didn’t pay for abortions.
This option, which had been floated before, was rejected by the USCCB’s legal experts as being a complete sham, for the reasons I mentioned above: if the bill says “pay for abortions” an executive order that just says “no” is unconstitutional, and a vague “hard-to-say what it’s saying” executive order just won’t have any effect. Now, we’re gearing up for a bizarre battle, where the same pro-choice groups which claimed that Obamacare didn’t cover abortion are going to claim that it does. This will put the government in the position of arguing that Obamacare doesn’t cover abortions, after pro-lifers have publicly declared that it does.
But here’s where pro-lifers might be able to prevail in court: the language used in the Obamacare legislation is intentionally vague. Nobody (or almost nobody) in Congress wanted to write a bill saying, “…and pay for abortions.” So it’s written in inscrutable legalese which might or might not cover abortion. And if it is a genuine “might or might not” issue, that’s probably an area where the president can legally issue an executive order, explaining how the bill is going to be interpreted and executed (again, as long as it isn’t against the plain language of the statute, and here, the statute doesn’t have plain language at all). As Michael said, “there is no federal law preventing the PCIP from paying for abortions.” But if there’s an executive order which prevents it, that might still work. For example, there was no federal law which required or forbade discrimination within the armed services, which gave Truman the legal wiggle-room to desegregate them by executive order; so the best option pro-lifers have is to claim a similar absence of law here. The healthcare bill doesn’t help us, but it’s possible it doesn’t hurt us, either.
So hopefully, the pro-life side has been wrong about the effect of the executive order, and the impact of the original legislation. Of course, even if that’s the case, the court would then have to find that the executive order prevents funds being used for abortions, which is another open question, because that’s not the outcome the president who wrote the executive order wanted. He wanted to cover abortions while pretending not to. At the end of the day, this is going to come down to a court interpreting a vague bill and an even vaguer executive order which may or may not require or forbid abortion coverage within Obamacare. That’s an eerie place to be, since so much of it turns on arbitrary judicial interpretations.