What happens when the executive branch chooses silence over scrutiny? That’s the question Republican lawmakers are now forcing back into the national spotlight as they call for a long-delayed federal investigation into the deaths of five late-term aborted babies discovered in Washington, D.C., in 2022.
The request, made directly to the FBI, is not just about forensic details or policy differences. At its core, it’s a test of constitutional accountability: Does the executive branch have a duty to investigate credible evidence of federal crimes, even when politically inconvenient?
The Discovery That Sparked Silence
In March 2022, pro-life activists came into possession of a box containing fetal remains outside a D.C. abortion clinic. What they found—five visibly developed, late-term aborted babies—raised immediate questions about whether federal laws had been violated, including the Partial-Birth Abortion Ban Act of 2003 and the Born-Alive Infants Protection Act of 2002.
Some of the bodies appeared to show signs of being delivered intact, potentially indicating illegal partial-birth abortions or failure to provide care to infants born alive. Despite widespread public concern, no federal agency formally investigated the clinic or ordered an autopsy to determine whether the procedures violated criminal statutes.
The Letter to the FBI: Demanding Accountability
Now, Republican members of Congress are demanding answers. In a formal letter to FBI leadership, lawmakers have asked for a full investigation into whether the federal government unlawfully declined to enforce criminal statutes in the case of the so-called “D.C. Five.”
Specifically, the request focuses on the Department of Justice’s past refusal to intervene and the Metropolitan Police Department’s alleged failure to refer the case for independent medical review. Lawmakers claim these inactions reflect a dangerous politicization of law enforcement, where federal officials apply criminal statutes selectively—shielding certain ideologies while targeting others.
Constitutional Duties and Executive Discretion
This case raises a sharp constitutional question: Can the executive branch choose not to enforce a law it finds politically uncomfortable?
Article II of the U.S. Constitution requires that the president “take Care that the Laws be faithfully executed.” That clause has traditionally been interpreted as a mandate for non-discretionary enforcement of duly passed laws, especially in areas involving public safety or civil rights.
When credible evidence of a potential federal crime is ignored—especially when it implicates politically sensitive issues like abortion—it raises the possibility that the executive branch is violating its constitutional obligation to enforce the law fairly and uniformly.
Failure to act in this case may not just be a moral lapse. It may be an abdication of constitutional duty.
Two Systems of Justice?
What has infuriated critics is the contrast between how the federal government treated the activists who discovered the remains and how it treated the evidence itself.
While no investigation was launched into whether the abortions violated federal law, some of the pro-life activists involved in publicizing the case were prosecuted under the FACE Act (Freedom of Access to Clinic Entrances Act) and sentenced to prison time for non-violent protest.
This stark disparity—harsh enforcement against protesters, no action on potential fetal homicide—has been cited as a prime example of what many now describe as a “two-tiered justice system.”
From a constitutional perspective, selective prosecution undermines the Equal Protection Clause of the Fourteenth Amendment, which has been interpreted to prohibit the government from enforcing laws unevenly based on political beliefs or affiliations.
It also implicates the First Amendment, if those arrested were targeted for speech or expression rooted in moral or religious conviction.
The Role of Oversight and Public Trust
In the face of executive inaction, Congress’s constitutional role becomes even more vital. Article I gives Congress broad oversight authority to investigate executive agencies, compel testimony, and refer matters for criminal prosecution. Lawmakers like Reps. Chip Roy and Andy Biggs are invoking that power now—not just to investigate a case, but to restore a standard: that federal law applies to everyone, even when it’s politically inconvenient.
Without action, trust in the impartiality of the justice system erodes further, and constitutional protections risk becoming selectively enforced promises rather than universal guarantees.
Why It Matters
The question isn’t just whether crimes were committed in a single D.C. clinic. It’s whether the federal government, under a prior administration, allowed ideology to override law. If so, that sets a dangerous precedent—where enforcement is reserved only for those on the “wrong” side of political power.
What’s at stake here is not just justice for five nameless children. It’s the principle that every law matters—or none of them do. In a constitutional republic, the executive does not get to choose which victims count.
If the new FBI leadership reopens the case, it may send a signal that constitutional obligations still stand, even when politically inconvenient. And if it does not? Then the fight shifts back to Congress—and, ultimately, to the people.