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H.Res. 58 (117th): Memorializing the unborn by lowering the United States flag to half-staff on the 22d day of January each year.


Should Roe mean the flag is flown low?

Context

When the American flag is flown at half-staff, it signifies respect for a person’s memory. Only the president can order the American flag to be flown at half-staff nationwide, which federal law says they can declare “upon the death of principal figures of the United States Government.”

A few such instances are mandated in federal law. For example, the flag must be flown at half-staff for 30 days following the death of a former president. So, hypothetically, Joe Biden couldn’t overrule that law and unilaterally declare the flag to continue to fly normally upon, for example, the death of a former president who was the incumbent’s opponent or rival.

Other than such cases mandated by federal law, it’s up to the president’s discretion to decide exactly whose death qualifies for the half-staff honor. For example, in December 2021, President Joe Biden declared American flags to fly at half-staff for the death of Bob Dole, the longtime Senate Majority Leader and 1996 Republican presidential nominee.

This is not the responsibility of Congress. But that doesn’t prevent Congress from officially having an opinion onsuch a half-staff designation.

What the resolutions do

A House and Senate resolution would adopt the position of Congress that the American flag should be lowered nationwide every January 22, the anniversary of 1973’s Supreme Court decision Roe v. Wade which established a constitutional right to abortion.

The House version was introduced on January 21, 2021 as H.Res. 58, by Rep. Jody Hice (R-GA10). The Senate version was introduced the next day on January 22 as S.Res. 12, by Sen. Mike Braun (R-IN).

What supporters say

Supporters argue that, just as the U.S. lowers the flag to recognize individual prominent people who died, it should also do so for the millions of aborted fetuses which weren’t prominent.

“The Constitution guarantees Americans the ‘right to life.’ Yet, for nearly half a century, a wildly irresponsible decision by the Supreme Court has legalized the killing of unborn children — the most vulnerable in our society,” Rep. Hice said in a press release. “I proudly introduce a resolution to mark this dark anniversary as the ‘Day of Tears’ to honor all those children denied God’s greatest gift of life by abortion since 1973 and to encourage Americans to lower our national flag in respect.”

“To mark National Sanctity of Human Life Day and to remember the millions of unborn children lost to abortion, I was proud to introduce the Senate resolution recognizing the 60 million lost since the Supreme Court’s 1973 decision and calling for flags to be flown at half-staff in their memory,” Sen. Braun said in the same press release.

That estimate of 60 million U.S. abortions performed since Roe v. Wade is likely high. The estimate comes from the National Right to Life Committee (NRLC), whose estimate inflates the Guttmacher Institute’s widely-cited numbers by 3 percent, to compensate for that organization’s (supposed) 3 percent undercount. Regardless, there’s little doubt that the “real” number nonetheless totals tens of millions.

What opponents say

Democrats take the January 22 anniversary to commemorate the *Roe *decision rather than attack it. On the most recent such anniversary in 2021, President Biden and Vice President Kamala Harris issued a joint statement honoring the decision.

“In the past four years, reproductive health, including the right to choose, has been under relentless and extreme attack,” Biden and Harris wrote.”We are deeply committed to making sure everyone has access to care — including reproductive health care — regardless of income, race, ZIP code, health insurance status, or immigration status.”

“The Biden-Harris Administration is committed to codifying Roe v. Wade and appointing judges that respect foundational precedents like Roe,” their statement continued. “We are also committed to ensuring that we work to eliminate maternal and infant health disparities, increase access to contraception, and support families economically so that all parents can raise their families with dignity.”

Odds of passage

Rep. Hice’s prior 2019 version attracted 59 cosponsors, all Republicans, but never received a vote in the Democratic-controlled House. The current version has attracted 51 cosponsors, all Republicans. It awaits a potential vote in the House Oversight and Reform Committee.

The current Senate version has attracted five cosponsors, all Republicans. It awaits a potential vote in the Senate Judiciary Committee.

Odds of passage are low in the Democratic-controlled Congress.

Last updated Jan 25, 2022. View all GovTrack summaries.

The summary below was written by the Congressional Research Service, which is a nonpartisan division of the Library of Congress, and was published on Jan 27, 2021.


This resolution supports the recognition of January 22 each year as the Day of Tears in the United States and encourages citizens to lower their flags to half-staff to memorialize the unborn.