The One Thing Senator Schumer Refuses To Do In the Face of Senator Tuberville’s Point on Abortion

Why doesn’t the majority leader insist the administration simply enforce the law that the Congress passed?

AP/Jacquelyn Martin
Senator Tuberville on September 14, 2023, at Washington. AP/Jacquelyn Martin

Senator Schumer, in his desperation to get confirmation of President Biden’s nominees to the Pentagon, is trying every conceivable strategy except one. He’s willing to change the Senate rules temporarily. He’s whinging to the press corps. He’s arguing with Senator Tuberville himself. The one thing he refuses to do is to insist that the Commander-in-Chief obey the law in respect of federal funds and abortion.

That, in the view of the Sun, is the logical move at this stage of the game. Federal law, going back to the days of the Illinois congressman, Henry Hyde — the father of the Hyde Amendment — has made it clear that taxpayer spondulix are not to be used to pay for abortions. President Biden may have abandoned his support for the Hyde Amendment, but he has not succeeded in getting the legislation repealed by Congress. That’s on him.

It’s not our intention to take a position— one way or another —  on whether female soldiers should be given federal funds to help them travel to a state that permits abortion. Our intention here is to observe simply that the law doesn’t permit it. It’s hard to see how the Hyde Amendment and subsequent laws allow any taxpayer money to be used in any way to advance an individual’s effort to get an abortion, save for when the mother’s life is at risk.

If Congress doesn’t like that law, it can change it in a twinkling. Congress, though, doesn’t want to change the law. It wants to leave the Hyde Amendment and related laws where they are. These laws have been on the books, in one form or another, since 1976, when the House passed the first Hyde Amendment, barring federal spending in the Medicaid program for abortions, with an exception in cases of rape or incest or to preserve a mother’s life.

Since then, similar legislative enactments have extended the policy to cover other federal programs and departments, including Health and Human Services, State, Justice, and — most à propos Mr. Tuberville’s crusade, Defense. If the Senators were to turn their attention away from haranguing Mr. Tuberville and to inspecting the United States Code, they’d find it right there in Title 10, Section 1093, under the head “Restriction on Use of Funds.”

The law says that funds available to the Defeinse Department “may not be used to perform abortions,” excepting for the mother’s health or rape or incest. Nor is it legal to use for abortion, with the same exception, any “medical treatment facility or other facility” of the department. To quibble over whether this allows paying for soldiers’ travel for abortions, as Mr. Biden contends, exhibits a sneakiness that is unbecoming and an affront to Congress.

Pro-abortion activists have never liked the Hyde Amendment in any of its permutations. The Guttmacher Institute condemns it as a “discriminatory policy.” The ink was hardly dry on the amendment when advocates sued to block it. Yet in 1980, the Supreme Court found that — even at a time when the Roe v. Wade precedent was binding — that a woman seeking an abortion had no “constitutional entitlement” to obtain it at taxpayer expense.

Nor, the Nine ruled in Harris v. McRae, did the Hyde Amendment amount to a kind of taking that would breach the Fifth Amendment’s Due Process Clause. The high court determined, too, that the Hyde Amendment, even though it comported with some tenets of Catholicism, did not violate the First Amendment’s ban on establishing a state religion. The Nine even conceded the “legitimate congressional interest in protecting potential life.”

Which brings us back to Mr. Tuberville, who is holding fast. “I will keep my hold until the Pentagon follows the law,” he avers, or “Congress changes the law.” For this, Mr. Schumer reckons the Alabama senator has “brought the Senate to a new low” and “should be ashamed of himself.” Such vitriol overlooks the fact that Mr. Tuberville has on his side not only the laws handed down at Sinai, but the “supreme Law of the land,”* too.

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* From Article VI: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”


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