Are the Senate and House abortion compromises unconstitutional?
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I was wondering when this would happen:
A number of key pro-choice Democrats–including Sens. Barbara Boxer (D-CA) and Patty Murray (D-WA)–have said they can get behind the new abortion compromise in Senate health care legislation.
[Snip]
But Reps. Diana DeGette (D-CO) and Louise Slaughter (D-NY)–co-chairs of the Congressional Pro-Choice Caucuse–say they’re not sold. They say the new compromise is possibly unconstitutional, and that they and other pro-choice House members could still reject it.
“As the Co-Chairs of the Congressional Pro-Choice Caucus, we have serious reservations about the abortion provision included in the U.S. Senate’s health care bill. This provision is not only offensive to people who believe in choice, but it is also possibly unconstitutional. As we have maintained throughout this process, health care reform should not be misused to take away access to health care. The more than 190-member Caucus will review this language carefully as we move forward on health care reform.”
Marci A. Hamilton, an internationally recognized expert on constitutional and copyright law, makes the argument for why the Stupak Amendment is unconstitutional. (h/t Daily Kos)
- Stupak violates the Establishment clause (separation of church and state in what is, Hamilton argues, a clearly religiously-rooted ideological battle)
- It violates the Equal Protection clause (only women need abortions, while Viagra for men is covered).
- It violates Substantive Due Process and Privacy Rights. (It places an undue burden on a woman’s right to have an abortion, going far beyond the Hyde amendment, which has already forbidden federal spending by Medicaid on non-therapeutic abortions since 1976.)
I’m not sure how convincing the legal argument will be in all of this. Scholarly reasoning does have inherent weaknesses of being rooted in rationality and facts.
Perhaps women’s health advocates should take the David Waldman approach and claim the decision to leave abortion laws up to individual states doesn’t go far enough.
I think states should leave the abortion question up to the counties. Then I think counties should leave the abortion question up to municipalities. Then the neighborhoods should leave the abortion question up to each block. And each block, as you might have guessed, should leave the abortion question up to each household.
Yes, seems like a fine compromise. That’s some real nice pragmatism any self-respecting Progressive could get behind!
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The entire bill is unconstitutional…they will put you in jail if you don’t pay…it’s another tax…
Obama, reid, pelosi are anarchists….everything they do is outside the law
Forgive my ignorance of the Constitution as a recently certified U.S. citizen, but where I come from (Canada), all ELECTIVE surgery is not covered by the Medicare plan. That includes abortion, cosmetic plastic surgery which is not the result of trauma or birth defects, or anything to do with, in a sense, self-inflicted obesity issues, e.g. gastric bypass (except when life-threatening).
This has nothing to do with religion or the Cdn, version of the Constitution, but simply with non-essential surgery or medicine. Why is the issue so complicated here? Yes, by all means, keep religion out of it.
you should have stayed in Canada….because now you are owned by the united states government
In response to another comment. See in context »Yes, there are constitutional issues with this tiny piece of the bill, but Hamilton clearly has an extreme bias on this topic. She obsesses with the idea the abortion as only a religious opposition and neglects any moral aspect to abortion. Even I, not of any religion, sees the immorality. I think every woman who has had an abortion has felt moral guilt.
It would be hypocrisy to have government tax “bad” behavior, but give money to abortion.
Hamilton’s biggest flaw is the idea that women “need” abortions. Women choose to have an abortion due to irresponsible behavior. And I know she’s not talking about the 1% that need abortions due to issues. Viagra that is covered is used for physical dysfunction. Completely different.
Ultimately, this is just a distraction to the disaster the health bill will cause to the health care system. As noted, there are already many questionably constitutional parts to the bill.
[...] Allison Kilkenny of Trueslant has some additional insight into the Hamilton piece. [...]