The Axe Bowen Incident

I’ve learned that there’s a difference sometimes in what President Reagan says and what he does on social issues…. He’ll speak against abortion when the marchers are here, but he doesn’t go all out. How many times, when we’re voting on a critical abortion issue, has he said, ‘I’ve got to have this one,’ as he did on AWACs? How many times has he called anyone from Camp David to talk about things like school prayer or abortion? None that I know of. I find the President relatively easy to work with.

Except for the last sentence, these remarks could be attributed to a disgruntled Jesse Helms, not to the most notorious abortion-rights activist in the history of the U.S. Congress, Senator Bob Packwood (R- OR), interviewed in the Washington Post Magazine, The truth of Packwood’s assertion is currently being played out not over another Human Life Amendment or Supreme Court challenge, but over what would otherwise be a petty bureaucratic procedure: whether to apply an abortion-restrictive statute to an abortion-promoting recipient of federal funds.

On January 21, Jo Ann Gasper, a deputy assistant secretary at the Department of Health and Human Services (HHS), ordered the defunding of all Planned Parenthood birth-control clinics. Her reason? Title X of the U.S. Code states that, “none of the funds appropriated under this title shall be used in programs where abortion is a method of family planning.” Planned Parenthood, the world’s foremost pro-abortion advocate, receives about $30 million a year in federal funds — over one-fifth of the $142.5 million-a-year HHS program, and the largest private recipient of federal family planning funds- -to operate birth control clinics which make abortion referrals. In addition, Planned Parenthood performs abortions at forty -seven clinics across the country, claiming the abortions are performed with non-federal funds. Overhead for the clinics, however, is regularly put on the federal tab. Enacted in 1970 and obscured through massive increases in funding to Planned Parenthood during the Carter Administration, Title X has never been applied to Planned Parenthood activities.

The day after Mrs. Gasper released the program instruction, her supervisor, Robert E. Windom, the number two official at HHS, rescinded her order and reprimanded her for citing without consulting her supervisors. Never mind that Gasper had issued five or six other program instructions on her own in the past year without incident.

When news of the Windom rescission reached the streets, the White House was deluged with tens of thousands of calls, including some from certain members of Congress. National Right to Life Committee President John C. Wilke heralded the charge over Dr. James Dobson’s “Focus on the Family,” a Christian radio program featured on 970 stations.

We may reflect that no one makes a procedural objection without having an underlying substantive motive, and, as a corollary, no one affirms such a procedural objection unless he lacks underlying substance.

Enter now HHS Secretary Otis Bowen. Bowen issued a carefully-worded letter on February 5 which declined to reinstate Gasper’s order, and failed to comment on her reprimand. Actually, no one quite knew what Bowen meant. Writing to the ten regional HHS commissioners, he stated that, “no family planning program of which abortion or abortion-related activities is a part can be eligible for” family planning programs. The letter did not mention Planned Parenthood by name and did not comment on the rescission of Gasper’s order.

Both pro- and anti-abortion groups were cautiously optimistic. Douglas Johnson of the National Right to Life Committee (NRLC) said that the order would inevitably exclude Planned Parenthood if the letter is properly enforced. Scott Swirling of the National Family Planning and Reproductive Health Association said that the letter “is so unclear it may not mean anything.”

Perplexing is the fact that the White House helped write the cryptic Bowen letter. One White House official involved in drafting it told the Washington Post that “Bowen was given very specific guidance from the White House on this directive.” According to HHS Chief of Staff Thomas R. Burke, the Bowen letter “is clearly a maintenance of the status quo.”

NRLC’ s Johnson does not believe Bowen will enforce the letter. “He’s been lackadaisical on the Baby Doe issue, on enforcement of the Hyde Amendment restricting federal funding of abortion, and has blocked or allowed to be blocked repeated reforms attempted in the family planning program,” he told Crisis.

Senator Gordon Humphrey (R-NH) met with White House Domestic Policy Advisor Gary Bauer immediately after having met with Bowen. Humphry told Crisis that although the White House intended the letter to stimulate strict enforcement of Title X, Bowen had told him that the directive is merely a reiteration of the status quo. Humphrey believes there is “a great schism” between the President and Bowen. He said the Bowen policy will remain unchanged unless the President has a “man-to-man talk with his secretary,” an event he doubts will happen.

Comes now the White House to the rescue. In mid-April, for the first time in his presidency, Ronald Reagan introduced prolife legislation into Congress: H.R. 1729, a.k.a. “The President’s Prolife Bill of 1987.”

Make no bones, the bill is impressive. Sponsored by Rep. Henry Hyde (R-IL) and co-sponsored by fifty-eight additional congressmen, the bill would prohibit Title X funds from going to any organization that performs or refers abortion — i.e., Planned Parenthood. In addition, the bill would declare that an unborn child is a living human being, that a right to an abortion is not secured under the Constitution, and that the Supreme Court erred in not recognizing the humanity of the unborn.

This show of force, however, sounds the death knell to the bill and to the prospect of defunding Planned Parenthood. According to Eileen Woods, legislative aide to co-sponsor Chris Smith (R-NJ), the bill will never even come before a congressional committee as long as pro-abortion zealot Henry Waxman (D-CA) remains chairman of the House Energy and Commerce Subcommittee on Health and the Environment. Woods is pessimistic that the House sponsors will garner the necessary 218 congressional signatures on a Discharge Petition to force the bill out of committee and to the floor of the House, especially since the tenuous prolife majority in the House is held primarily in agreement over abortion funding, and not on whether the Supreme Court “erred” or that an unborn child is a “living human being.” Chances are even more remote in the Senate where Humphrey’s companion bill remains buried.

All of which suggests that the White House knew what it was doing when it decided to run to Congress and away from Bowen. Kind of like a prize fighter who pulls his TKO-winning punch before the final bell to save his strength for a fight he plans to throw the following week. All, of course, to please the bookies and the crowd.

Not surprisingly, says one congressional aide who did not want to be identified, “Bowen now uses the President’s bill as a bullwhip to keep detractors away from him.   ‘Don’t tell me about Planned Parenthood,’ he says, ‘tell Congress.'” To be sure, prolife lip service, as pledged by the President’s bill, will at least lure prolife voters toward a Republican vote in 1988 even if nothing substantive is accomplished on the prolife agenda this term.

And what about Jo Ann Gasper, our foiled heroine? Well, back on March 12, she was reinstated in her position, reverted with full powers, and instructed, we can imagine, in protocol.

It helps to put this whole scenario in context. The day after the Gasper order, the day of the Windom rescission, and the week before the White House- Bowen letter, Ronald Reagan addressed a throng of snow-swept prolifers from the warmth of the White House Office. “God Bless, you,” he said, as he made his annual commitment to help stop abortion in this country. We can now have half-expected him to add, “Go in peace, be warmed and filled,” calling to mind St. James’ parody of those who reflect that faith without works is dead.

In this case, it is Gasper’s works that are dead. Born a Jew, then a convert to Anglicanism, and finally to Roman Catholicism (why is that progression, rather than the reverse, the more common?), she is principled nevertheless. Admittedly prolife, she did what she thought the President would want to have done. And she merely complied with the plain words of the law. Prior to being censured by her superiors from contact with the press, she told the Washington Times that her “loyalties lie with the man who resides at 1600 Pennsylvania [Ave.] to do what needs to be done.” The question now is whether the addressee has been loyal to his electorate in return.

David A. Shaneyfelt

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David A. Shaneyfelt is a shareholder at Anderson Kill, California, LLP, where he represents numerous private and public entities in coverage disputes against insurance carriers and joint powers agencies. Mr. Shaneyfelt is also a member of Anderson Kill's Financial Services Industry Group. A former trial attorney with the U.S. Department of Justice in Washington, D.C., Mr. Shaneyfelt has extensive background in complex civil litigation, trials, and appeals in numerous state and Federal courts.

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