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Thursday, November 12, 2009

Stupak Amendment and the Constitution

Marci Hamilton argues today that the Stupak Amendment is unconstitutional on three grounds: 1) It violates the Establishment Clause by imposing a minority religious worldview onto secular policy; 2) It violates Equal Protection, by imposing limits on one female-centered medical procedure, but not on male-centered ones, such as Viagra prescriptions or prostate surgery; and 3) It violates Substantive Due Process and Privacy, imposing an undue burden on reproductive choice that is unconnected to government funds (as with the Hyde Amendment).

I don't buy the Establishment argument, for many of the reasons implicit in Rick's "simmer down" post. But the other two strike me as potentially meritorious arguments.

Posted by Howard Wasserman on November 12, 2009 at 11:14 AM in Constitutional thoughts, Current Affairs, Howard Wasserman | Permalink


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As I understand it, the Hyde Amendment itself would not have barred anything, regardless of the structure of the exchanges, presence of subsidies or other credits, etc., because Hyde on its own terms only restricts Medicaid funds. That's why there are separate barriers for military insurance, etc. Hyde is not a global "no-federal-funds" rule.

Therefore, some Hyde-parallel was "needed" to "retain" a similar-to-Hyde status quo, from the pro-Hyde perspective. Suggestions that Hyde already covered it were either inaccurate, whether uninformed for some, and deceptive for others.

The problems, as I see it, have been two-fold:

1. It would have been hard enough to just do a "parallel to Hyde" provision, because the whole exchange system, with private insurers and a public structure, makes it harder to identify the "neutral" position. So there are good-faith people on each side who have convinced themselves that their version would simply preserve the status quo, while the other side's approach would move the ball. Each has had an arguable claim as to various iterations.

2. This effort was made harder, at led to the big showdown, when those who had the upper hand until Stupak's showdown -- Pelosi, Obama, et al. -- upped the ante on denying what the earlier bills did and especially when they called Stupak and the bishops liars for saying otherwise.

I'm not saying the other side would not have done the same, but it just wasn't accurate for the Prez to call out the bishops as liars, and to polarize them and Stupak the way they did. Had they forthrigthly recognized the issue upfront, it might have gone differently.

There's certainly an argument against Hyde, on policy and constitution, so I can certainly understand why anti-Hyde forces would want to use the new reform to roll that back. I was open to persuasion for awhile, but the dishonesty about what was happening, once I looked into it and understood where the Stupaks were coming from, really turned me off.

Posted by: joe voter | Nov 13, 2009 12:43:16 PM

Matthew, suggest you read Webster. But two things to note. First, in Webster, a key argument was that the state made a profit, not a loss, from providing abortion: i.e. there was no state subsidy for abortion. No dice. Second, the Court did articulate one potential exception where states could not exclude abortion from publicly funded programs (in fn. 8): "A different analysis might apply if a particular State had socialized medicine and all of its hospitals and physicians were publicly funded."

Thus, if the insurance exchanges did amount to "socialized medicine," then the Stupak amendment would tread on shakier ground. I would love to see someone make that argument explicitly.

Posted by: anon | Nov 13, 2009 2:36:36 AM

I had thought about #3. I'll confess that I never read Webster, or if I did I've forgotten it, so I don't know what it said. But it seems to me that it's clearly an undue burden (with the caveat that Webster may change that opinion), in that the effect is to run abortion coverage out of the exchanges created by the bill. Since some insurance will be purchased on the exchanges without the use of the affordability credits provided by the exchanges, this essentially means that if you want to partake of the market-based cost controls created by the exchange, you can't buy abortion coverage.

Now, I could see an argument that the federal funds expended in administering the exchanges was sufficient to invoke the Hyde amendment, preventing abortion coverage from entering the exchange in that way (although from a policy perspective, that's a nightmare to me). But if that's the case, then Stupak-Pitts is unnecessary, which means it must have some additional meaning, and the Hyde amendment must not bar abortion coverage. Sort of a reverse ejusdem generis (if I'm remembering that canon correctly).

At any rate, barring some precedent that seems directly on point and contrary, I'm inclined to think that this probably does fit into the undue burden standard of Casey. Assuming, of course, that this Court doesn't take the opportunity to do what they threatened to do in Carhart and simply abandon Casey's principles.

N.B.: my word confirmation was "ehfuch," thus perfectly encapsulating my feelings about Stupak-Pitts.

Posted by: Matthew Reid Krell | Nov 12, 2009 7:28:16 PM

I love the old "abortion restrictions are Establishment violations" line. As many have noted over the years, many of the same voices welcome the support of Catholic bishops, Baptist preachers, etc., on civil rights, against the death penalty, for social welfare generally, etc.

Heck, even on health case this summer, when it became clear that bishops would be a problem, Obama pushed the angle of the religious duty to help the uninsured.

My favorite, though, is the Supreme Court's citation, in the Atkins ruling against executing the mentally retarded, of the Catholic Bishops et al. brief, showing that many religious groups were opposed, showing a societal consensus. Stevens wrote it, joined by the liberals and Kennedy. Would they cite the bishops in an abortion case? Or howl if Scalia did?

Posted by: a different anonner | Nov 12, 2009 4:38:18 PM

Maybe Im missing something, but w/ respect to #3, how is it NOT connected to government funds?

Posted by: Anon | Nov 12, 2009 4:00:41 PM

Really? The Equal Protection argument strikes you as potentially meritorious? Under her logic, any funding for prenatal care in the health care bill would also be unconstitutional, since only women can become pregnant.

Posted by: D | Nov 12, 2009 2:47:59 PM

The arguments may be meritorious from a policy perspective. But are pretty much hopeless from a What-Would-the-Supreme-Court-Do perspective. For a legal scholar to make the argument without addressing Webster v. Reproductive Services (even in an online article) is kind of like conservatives making the argument that health care reform is unconstitutional without addressing Wickard.

Posted by: anon | Nov 12, 2009 1:36:24 PM

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