Oppose Santorum Amendment to Labor HHS Bill on So-Called ""Partial-Birth"" Abortion
Dear Senator:
The American Civil Liberties Union strongly urges you to oppose Senator Rick Santorum's amendment to the Labor, Health and Human Services, and Education appropriations bill that would prohibit ""hospitals or other facilities"" from receiving any funds appropriated under the bill if they perform so-called ""partial-birth abortions,"" even if no federal funds are used for such abortions. This amendment is a back-door attempt to institute a ban on the safest and most common second-trimester abortion procedures, an effort that Senator Santorum and his allies have been unable to achieve in the courts.
· The Santorum Amendment Would Deprive Women of Critical Abortion and Reproductive Health Services.
The Santorum Amendment would deny hundreds of hospitals and other facilities all Labor-HHS-Education funds if they perform the safest and most common second-trimester abortion procedures even if no federal funds are used to pay for such abortions. Courts have ruled that the definition of ""partial-birth abortion"" contained in the Amendment is not limited to a single abortion procedure, but rather encompasses the safest and most common abortion procedures used throughout the second trimester. See, e.g., Planned Parenthood Fed'n of Am., Inc. v. Ashcroft, 320 F. Supp. 2d 957 (N.D. Cal. 2004). Under current law, no federal funds may be used for abortions except when the pregnancy endangers a woman's life or results from rape or incest. Yet many hospitals and other health care facilities appropriately provide abortions with non-federal funds in a variety of circumstances, including when the pregnancy endangers a woman's health or when the fetus has a serious anomaly. This Amendment would deprive these hospitals and health care facilities of all federal Labor-HHS funds, including Medicaid and Title X dollars, diverting resources from established and trusted sources of women's health care in communities across the country.
· The Santorum Amendment Is a Back-Door Attempt to Override Court Rulings on the Federal Abortion Ban.
Since the ""Partial Birth Abortion Act of 2003"" was enacted, three federal district courts and the U.S. Court of Appeals for the Eighth Circuit have declared it unconstitutional because, among other things, it lacks an exception to protect women's health. See Carhart v. Gonzales, 413 F.3d 791 (8th Cir. 2005); Carhart v. Ashcroft, 331 F. Supp. 2d 805 (D. Neb. 2004), cert. filed, (Sept. 23, 2005); National Abortion Federation v. Ashcroft, 330 F. Supp. 2d 436 (S.D.N.Y. 2004); Planned Parenthood Fed'n of Am., Inc. v. Ashcroft, 320 F. Supp. 2d 957 (N.D. Cal. 2004). These court rulings were a straightforward application of the Supreme Court's 2000 ruling in Stenberg v. Carhart, 530 U.S. 914 (2000), which invalidated a similar state abortion ban. The Santorum Amendment is a blatant attempt to accomplish through an appropriations rider what its proponents could not accomplish through the courts.
· The Santorum Amendment Is Unconstitutional.
The Santorum Amendment improperly conditions the receipt of federal funding on a hospital or other facility's agreement to forego the exercise of a constitutionally protected right. It automatically disqualifies from funding eligibility any organization that provides abortions using wholly non-federal resources. The Supreme Court has clearly held that such a prohibition is an unconstitutional condition on non-federal dollars. In Rust v. Sullivan, 500 U.S. 173 (1991), for example, the Supreme Court held that although Congress could prohibit the use of federal dollars for abortion-related activity, it could not constitutionally bar the recipient of federal funds from engaging in abortion-related activity in other projects financed wholly by non-federal dollars. The Santorum Amendment violates Rust by barring Labor HHS funding recipients from engaging in protected activity with wholly non-federal dollars.
For all of these reasons, the ACLU urges you to oppose the Santorum Amendment.
Sincerely,
Caroline Fredrickson
Director, Washington Legislative Office
Greg Nojeim
Associate Director and Chief Legislative Counsel
Washington Legislative Office