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The Powers of the President Over Reproductive Choice

The Powers of the President Over Reproductive Choice

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Women's reproductive rights are in peril nationwide. Women need to know what's at stake if Mitt Romney is elected. NARAL Pro-Choice America has released a great report talking about the powers of the president over reproductive rights.
Women's reproductive rights are in peril nationwide. Women need to know what's at stake if Mitt Romney is elected. NARAL Pro-Choice America has released a great report talking about the powers of the president over reproductive rights.

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Published by: Deb Equality Della Piana on Oct 25, 2012
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12/04/2012

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THE POWERS OF THE PRESIDENT:
Reproductive Freedom and Choice
An Updated Report for 2012
The outcome of the 2012 presidentialelection very well could determinewhether abortion remains legal andaccessible for the next generation of  American women.Reproductive freedom is in extremeperil nationwide. In 2010, anti-choicecandidates for Congress and statehouses across the country ran on thepromise of creating jobs and improvingthe economy – then once in office turnedtheir attention with a vengeance tosocial-policy attacks. As a result, theright to choose is under legislativeassault on multiple fronts.The occupant of the White Housewields more power over reproductiverights than any other person. The U.S.Constitution and American tradition givethe president a wide variety of meansto influence the laws and policies thatgovern freedom of choice. Dependingon who occupies the office, that uniqueauthority can be used either to protector to take away our rights. As the 2012 elections approach, thisupdated report documents the powersof the president that impact reproductivefreedom and choice.
 
Judicial Nominations
Supreme Court
The next president could nominate enough SupremeCourt justices to determine the future of 
Roe v.Wade
and women’s constitutional right to choose.Through a systematic, decades-long campaign, theanti-choice movement has succeeded in moving thecourt to the right. Recent cases concerning abortionrights have been decided 5-4 – and in fact, onecritical decision was reversed from pro-choice toanti-choice in just seven years as a result of only
one
retirement from the bench. Simply put, on theSupreme Court, choice hangs by a thread.Since 1970, Supreme Court justices have retiredat the average age of 79, and three justices nowserving on the bench – Justices Ruth BaderGinsburg, Anthony Kennedy and Antonin Scalia –are age 75 or older. Should
any 
justice retire before2016, including but not limited to one or more of these three, the president could be presented withan opportunity to tip the court’s balance.
Federal Appellate and District Courts
In addition to the Supreme Court, the presidentnominates judges to the federal appellate anddistrict courts. The power to select lower-court judges often is underappreciated by policyobservers and the public alike – but as explainedbelow, has particular impact when it comes tochoice-related laws.In 1973,
Roe
affirmed that privacy is a fundamentalconstitutional right, and said government efforts tolimit that right must be met with “strict scrutiny”by the judiciary. The strict scrutiny standard causedmany restrictions on the right to choose to bestruck down.However, in 1992, in
Planned Parenthood of Southeastern Pennsylvania v. Casey 
, the SupremeCourt abandoned the “strict scrutiny” standard,instead adopting a less rigorous standard that allowsstates to impose abortion restrictions as long as theydo not “unduly burden” a woman’s right to choose.The
Casey 
court stopped short of overturning
Roe
,but dramatically diminished protection for thefundamental right to choose.Consequently, since 1992, many lower federalcourts have interpreted the Supreme Court’s “undueburden” standard to allow states to impose severenew restrictions on a woman’s right to choose. Anti-choice laws now in effect across the states includevarious types of abortion bans, laws that compelwomen to hear biased counseling and enduremandatory delays, gag rules on doctors, insurance-coverage bans, policies that allow health-carecorporations to refuse to provide medical services,laws designed to close abortion providers’ doors byoverregulating their medical practice, and more.The role of lower courts in this regime is pivotalbecause the vagueness of the “undue burden”standard leaves much room for judicialinterpretation. At least initially, lower courts decidewhether new abortion restrictions are constitutional.And because very few cases ever reach the SupremeCourt, for many women, the word of lower courtsoften is effectively final.So, while much media and public attention isfocused on the Supreme Court, its rulings, and itsconfirmation battles, when it comes to reproductiverights, the presidential appointment power has asimilarly profound effect at the lower-court level.
 Vacancies
The next president will have the opportunity tofill many judicial vacancies, ensuring that his or herinfluence over the issue of legal abortion will extendfor years to come.In recent years, presidents have had the opportunityto nominate, on average, 239 individuals per eachfour-year term to the lower federal courts – just overa quarter of the federal judiciary. Thus, the winnerof the next presidential election will have the abilityto make lifetime appointments of many like-minded judges to these critical positions – shaping the judiciary branch in a profound way and impacting thefuture of women’s reproductive health far beyond hisor her term of office.
“There is no single issue on which the next president,by himself, will have any greater impact than theSupreme Court.” 
— Wendy Long, Judicial Confirmation Network
“The Supreme Court trumps everything for conservatives.The shape of the court has the most long-term effects.” 
— Karlyn Bowman, American Enterprise Institute
* 2011 number is accurate as of July 15, 2011.
 
Cumulative Number of Anti-Choice State Measures Enacted Since 1995
 
Executive-Branch Appointments
The president appoints a cabinet and hundreds of senior executive-branch officials, including theattorney general, the secretary of the Department of Health and Human Services (HHS), the commissionerof the Food and Drug Administration (FDA), and thedirectors of the National Institutes of Health (NIH)and the Centers for Disease Control and Prevention(CDC), among many others.Each of these appointees wields significant powerover reproductive freedom and health. For instance,the attorney general either can actively deter andpunish clinic violence or choose not to make it apriority. Moreover, as anti-choice John Ashcroftchillingly demonstrated when he subpoenaedwomen’s private medical records across the countryin 2004, an ideological attorney general can usethe tremendous powers of his office to carry out apolitical agenda. The HHS secretary, in addition toadministering the Title X family-planning program,carries an enormous responsibility in overseeingimplementation of the new health-reform law – a lawwith perhaps the greatest potential in a generationto improve womens reproductive health. The FDAcommissioner is responsible for approving newcontraceptives and medical-abortion options –or, conversely, stalling them, as previous appointeesby anti-choice presidents did. The NIH directorsupervises vital biomedical research nationwide,including work with embryonic stem cells. And theCDC director oversees preventive services andprotects the public health.A president’s views on reproductive rights set theoverall policy and political tone for each of thesekey appointments and the many policy decisionsthat follow.
Executive Actions
The president can take executive actions, generallyrelating to the conduct of the executive branch,that have the force of law. Executive actions areparticularly powerful tools because the president canissue them independently.In recent years presidents have taken executiveactions on the following choice-related topics:
N
The gag rule on family-planning centers
N
The global gag rule on overseas health centers
N
The U.S. contribution to the U.N. Population Fund
N
Embryonic stem-cell research
N
The Federal Refusal Rule, a broad policy thatallowed health-care corporations to refuse toprovide or refer for abortion care and a broadrange of other health-care services
N
Federal funding for abortion services
The Federal Budget and Appropriations Riders
A president’s position on reproductive rights oftenis embodied in the budgets he or she sends toCongress. Each year’s federal budget cycle beginswith a presidential proposal. This document setsforth the administration’s views and signals thepresident’s opinion about which policy prioritiesdeserve public investment. This has an effect onboth the budget decisions Congress makes and thepublic’s opinion of various government programs.In other words, because the president is the electedleader of the nation, his or her budgets are seminalstatements about – and have the power to helpshape – American values.Reproductive-health programs whose funding levelsare set annually in budget bills include:
N
Title X, the nation’s domestic family-planningprogram
N
Teen pregnancy-prevention programs
N
Family-planning services through the U.S. Agencyfor International Development
N
The U.S. contribution to the U.N. Population Fund
N
A wide variety of other preventive andpublic-health programs that support reproductivehealthPresidential budgets also sometimes include policyrecommendations. These are important bothbecause they can influence Congress’ actionslegislatively and because they signal theadministration’s policy priorities for the comingsession. It was telling, for instance, that in his firstbudget, anti-choice President George W. Bushproposed repealing the law guaranteeing federalemployees equal access to birth control. In contrast,pro-choice presidents sometimes propose liftingsome or all of the current-law abortion-coveragebans on low-income D.C. residents, federalemployees, and women who receive their healthinsurance through the federal government.
Other Powers
Statements of Administration Policy
The president expresses his or her views on pendinglegislation by issuing memoranda to Congress whenmajor bills reach the House or Senate floor. Typicallythese Statements of Administration Policy includethe administration’s position on the proposal, an in-dication of whether the president would sign or vetoit, and requests for changes to any of the provisions.These statements are important because theyinfluence members of Congress, help shapelegislative provisions, and sometimes even affectthe outcome of a vote. When it comes to issuing
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