When Secretary of Health and Human Services Tommy Thompson announced on Jan. 31 that he was extending prenatal health-care coverage to pregnant low-income women participating in a $40 billion state-federal health-care program, the most conservative administration in a generation signaled its surrender to the common-sense strength of three liberal principles: That health care should be extended as widely as possible; that health care for poor children is especially important; and that the federal government should pay for it if necessary.
So, what was the response of liberal spokesmen to this modest victory? To kvetch and complain, of course.
"A guerrilla attack on abortion rights," declared Bob Herbert of the New York Times.
"A legal pathway to making all abortions under all circumstances a crime," said Kate Michelman, president of the National Abortion and Reproductive Rights Action League.
"Another way to undermine the rights of women," intoned former Surgeon General Jocelyn Elders.
Why such a negative, defensive, petty, and legalistic reaction to an indisputably progressive measure? Because the liberals have forgotten the lessons taught by that master political tactician Bill Clinton, while the conservatives in the White House political operation have absorbed them.
One small but essential part of Bill Clinton's two victories over Republican foes was to turn the abortion issue into a Democratic advantage. He accomplished this with his formulation that abortion ought to be "safe, legal, and rare." In simple positive language, Clinton framed the pro-choice position in a way that was firmly liberal yet appealing to voters uncomfortable with the inescapable reality that abortion involves ending a potential human life.
Instead of responding to the HHS decision with such a majoritarian tactics, these liberal spokespeople seized on a legitimate but tiny point, mainly of interest to lawyers, and beat it to death. The liberal critics were certainly correct that the way the administration went about expanding health-care coverage provided by the State Children's Health Insurance Program (S-CHIP, no relation to the V-chip) was a sop to pro-life groups who dream of repealing abortion rights. S-CHIP currently covers children from birth to age 19. HHS "clarified" the program's definition of child to cover persons from "conception" onward. Michelman was not wrong to argue that this language might someday become a footnote in an anti-abortion legal brief. It is indeed possible that a conservative Supreme Court could cite this language to justify a decision outlawing abortion.
But what are the chances of that happening, given the precedents of the court's pro-choice rulings? As the Chicago Tribune sensibly pointed out, "To suggest that the administration could overturn [Roe v. Wade] … by monkeying with regulatory language in a health-care program is wildly at odds with reality. The first time a law or regulation defines a fetus as a person in a way that actually curbs abortion rights the court will undoubtedly toss it out."
The professional alarmists at NARAL will no doubt invoke the specter of some future Republican-packed court under the whip hand of Chief Justice Scalia, relegating American womanhood to burqas and back alleys. But, of course, if the Scalia Court wants to ban abortion, it won't need an obscure HHS regulation to justify its judicial activism.