High Stakes on the Hill: Federal Budget Process Drags On, and Supreme Court Considers Overturning Roe

It’s a tense time in the nation’s capital for family planning advocates. With the Fiscal Year (FY) 2022 budget process still incomplete and a major abortion decision expected from the Supreme Court in June, everyone who cares about reproductive rights is chewing their nails. Whatever happens, it promises to be an eventful spring.

Appropriations Update

The FY 2022 appropriations process was ongoing at our press deadline, with the ultimate outcome still very much up in the air. As a reminder, FY 2022 officially began on October 1, 2021. With no budget deal in sight as the deadline approached, President Biden signed a Continuing Resolution (CR) on September 30 to prevent a government shutdown and fund operations at FY 2021 levels through December 3. On December 3, he signed a second CR extending funding through February 18. On February 8, the House passed a third CR set to run through March 11. Senate Majority Leader Chuck Schumer (D-NY) had not yet scheduled a vote on the measure, but promised to do so before the deadline.

We don’t know much about what’s going on behind the scenes, but we do know the details of the bills being considered:

The House-passed State Department and Foreign Operations (SFOps) appropriations bill included $760 in bilateral family planning funding and $70 million for the United Nations Population Fund (UNFPA). It also included the language of the Global HER Act, which would prevent a future president from unilaterally reinstating the Global Gag Rule, and excluded the Helms Amendment from the bill, though it remains part of permanent statute.

The Senate has not passed its version of the bill. Instead, the Senate Appropriations Committee released what’s known as a Chairman’s Mark—a bill authored by committee leadership and put forward without going through the typical mark-up process. The Senate bill funds bilateral family planning at $650 million, pledges $55 million for UNFPA, and also includes Global Gag Rule repeal language. Unlike the House bill, it does not eliminate the Helms Amendment.

The bills—along with multiple other funding measures—are being negotiated behind closed doors by House and Senate leadership. Because the Global Gag Rule repeal language is in both bills, it technically should not be susceptible to removal, but past experience has shown that reproductive health provisions are always at risk. Advocates on Capitol Hill are not taking any chances and are doing everything we can to shore up support for the provision.

January 28 was the one-year anniversary of both President Biden’s repeal of the Global Gag Rule and the introduction of the Global HER Act in the 117th Congress. Dozens of organizations in the international family planning community, including Population Connection, along with many members of Congress, used the anniversary to promote the Global HER Act and encourage Congress to include legislative repeal of the Global Gag Rule in a final FY 2022 spending bill.

Supreme Court Appears Poised to Overturn Roe

On December 1, the Supreme Court heard arguments in Dobbs v. Jackson Women’s Health Organization. The Mississippi court case is ostensibly about a law banning abortion after 15 weeks of pregnancy. In reality, however, it is a direct challenge to Roe v. Wade.

Mississippi’s Solicitor General, Scott Stewart, explicitly asked the Court to do so during oral arguments, saying, “Roe v. Wade and Planned Parenthood v. Casey haunt our country. They have no basis in the Constitution. They have no home in our history or traditions. They’ve damaged the democratic process. They poison the law.”

At least five justices (Samuel Alito, Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas) appeared receptive to the argument. Justice Barrett suggested that the widespread embrace of so-called “safe haven” laws, which allow a parent to surrender an infant at a hospital or fire station, surely renders abortion unnecessary. Justice Kavanaugh was more expansive, musing from the bench that surely the wisest course for the Court was a “return” to neutrality on the question of abortion and to leave the decision to the states. As he told United States Solicitor General Elizabeth Prelogar, “There will be different answers in Mississippi and New York, different answers in Alabama and California, because there are two different interests at stake, and the people in those states might value those interests somewhat differently. Why is that not the right answer?”

The Guttmacher Institute reports that 21 states have laws on the books—either pre-Roe bans, or so-called “trigger laws” put in place in anticipation of Roe’s fall—that could be used to immediately ban abortion. Another five states would be likely to quickly pass such bans, based on their current political climate.

In case his eagerness to overturn Roe wasn’t obvious enough, Kavanaugh also cited Brown v. Board of Education—the case that ended the infamous “separate but equal” doctrine—while suggesting that it was fully right and proper for the Court to overturn precedent “[i]f we think that the prior precedents are seriously wrong.”

Chief Justice John Roberts seemed to be searching for some middle ground, suggesting that perhaps the previous viability standard should be reconsidered while preserving part of Roe’s core holding, but there was no sign that the other conservative justices were interested in such an approach.

“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible.” — Justice Sonia Sotomayor

Justice Sonia Sotomayor, early in the proceedings, noted that the sponsors of Mississippi’s ban openly acknowledged that they’d introduced the law because there were “new justices” (meaning Kavanaugh and Barrett) they believed would be willing to overturn Roe v. Wade. She wondered aloud, “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible.”

That question remains to be answered. A decision is expected in June.