November 13, 2009

Jeffrey Rosen asks whether the Supreme Court might find the Stupak Amendment unconstitutional.

But first: Caption contest. This is the picture TNR uses to illustrate Rosen's article. May I draw special attention to Scalia's left-hand gesture?



Now, here's the serious part:
Let’s imagine that it’s impossible to pass a health care bill without a version of the Stupak amendment. Might the Supreme Court strike the amendment down? In upholding the Hyde amendment in 1980, the Court stressed that Congress could refuse to subsidize medically necessary abortions because it left “an indigent woman with at least the same range of choice … as she would have had if Congress had chosen to subsidize no health care costs at all.” By contrast, the Stupak amendment doesn’t leave self-employed women who receive federal subsidies with the same range of choice: It makes it much harder for them to find alternative coverage for abortion and therefore, in practice, leaves the federal government less neutral toward abortion than even the Hyde amendment. For this reason, it’s possible that some liberal Supreme Court justices might conclude that the Stupak amendment violates the Constitution. But this argument is unlikely to convince a majority of the Roberts Court, which means that pro-choice Democrats shouldn’t count on the Court to bail them out.
I think Rosen is right. The answer depends largely on who's on the Supreme Court. "[S]ome liberal Supreme Court justices might conclude that the Stupak amendment violates the Constitution," and the question, then is: How many liberal Justices will be on the Court when the question comes up? We'll call it "the Roberts Court" as long as John Roberts is Chief Justice, but the current balance of liberals and conservatives, plainly, is open to...



... change.

59 comments:

Henry said...

It looks to me like Scalia is about to sneeze. Luckily he has a handkerchief handy just over his left shoulder.

miller said...

I really dislike that Congress (or even We the People) thinks the Court should "bail them out" -- if it's bad law because it's unconstitutional, then why are these yahoos even thinking of voting for these laws?

Do members of Congress somehow escape the need to protect and defend the Constitution? Are they really that cynical?

traditionalguy said...

Ah so. But will Sotomayor-the-empthetic be a part of an Abortion by government paid doctors mandate ruling? As to the caption try: Italian stallions rule and women love it.

former law student said...

I'm thinkin' "Bite me."

The Stupak amendment is a poison pill designed to draw liberal votes away. Liberals should let it go for the moment: If I can't get butter for my bread I'll settle for dry toast rather than go hungry.

former law student said...

miller -- ambitious people push the envelope. Remember the high valuation Clinton put on his used underwear under "Charitable Contributions"?

edutcher said...

The answer always depends on who is on the Court. This is how you end up with Dred Scott, Plessy vs. Ferguson, Kelo, Roe, Lawrence vs. Texas, etc.

I've never been Thomas Jefferson's biggest fan, but when he said, "Mr. Marshall has made his decision, now let him enforce it", he rose considerably in my eyes. Letting the appellate courts "interpret" the Constitution has always been a bad idea - which, of course, is why it's not in the Constitution. They saw tyranny of the judiciary and destruction of separation of powers coming.

Henry said...

That was Andrew Jackson.

Sadly, Marshall was right.

Paul Zrimsek said...

"I got your superprecedent right here, buddy."

Aaron said...

Mmm, the deeper question is how can they find the stupak amendment unconstitutional without striking down the rest of this monstrosity. Apparently the right to make your medical decisions applies only to killing babies. sigh.

Grant said...

Can we get a ruling on the Constitutionality of the individual mandate while we're at it?

rcocean said...

The absurdity of the SCOTUS is made clear.

Where is "abortion" in the US Constitution? And if just depends on who is sitting on the court - why do we need a SCOTUS?

We don't need 5 Ivy league lawyers making political decisions for 300 million Americans.

Synova said...

At what point is this about "medically necessary" abortions?

PWS said...

CAPTION: "Roberts, wipe that Stupak grin off your face and check the penal code right here."

Dust Bunny Queen said...

Mmm, the deeper question is how can they find the stupak amendment unconstitutional without striking down the rest of this monstrosity. Apparently the right to make your medical decisions applies only to killing babies. sigh

Bingo! Where is it in the Constitution that we be forced to buy something merely because we are breathing and living in the United States.

It isn't a choice they are giving us to buy health insurance or to self fund our own health care. They are demanding under penalty of fines or jail that we purchase a commodity whether we need it or want it.

In addition the proposals, as I understand it, are that the insurance exchange will force my purchase of specific coverages that I don't want or need. Instead of allowing the consumer to make a rational decision on what levels of insurance they would need.....the government is forcing us to fit into a one size luxury plan.

We should not be funding abortions from tax payer dollars. PERIOD. If the pro abortion people feel that they would like to pay for abortions, have at it and set up a foundation.

Synova said...

"Mmm, the deeper question is how can they find the stupak amendment unconstitutional without striking down the rest of this monstrosity. Apparently the right to make your medical decisions applies only to killing babies. sigh."

This is very true.

People are (supposedly) willing to have government do this, to have government rather than any private agency decide what to cover or not, and that's A-Okay. They'll even risk making government the only provider anyone who isn't filthy rich can afford...

But they don't want to be told what treatment they can get or not?

Bruce Hayden said...

I find it highly unlikely that a Supreme Court with six Roman Catholics (5 conservative, and 1 presumably liberal) will flush this amendment, and therefore liberalizing abortion. I would suspect that the only real question is whether Justice Sotomayor votes with the conservative here, and if she doesn't whether she is still taking Communion afterwords.

Triangle Man said...

Can we get a ruling on the Constitutionality of the individual mandate while we're at it?

I don't like the individual mandate either. It was included to prevent people from waiting until they are sick to get insured, then dropping coverage as soon as their illness is resolved. In other words, it's there to protect the insurance companies.

Triangle Man said...

and therefore liberalizing abortion

How does maintaining the status quo liberalize anything?

Bruce Hayden said...

Also, keep in mind that the reason for this amendment was to prevent the government from forcing people who had (typically religious) views opposing abortion to have to pay for such.

former law student said...

the reason for this amendment was to prevent the government from forcing people who had (typically religious) views opposing abortion to have to pay for such.

Then it overreaches. As it stands, the amendment would prohibit paying for abortions even if the money came entirely from participants' premiums.

edutcher said...

Henry said...

That was Andrew Jackson.

Sadly, Marshall was right.


I heard the Jefferson story from a history teacher about 50 years ago in regard to papers involved in the Aaron Burr treason trial. I assume you're referring to a controversy over the Indian Removal Act (another stellar move by your Federal Government). About 20 years ago, I heard the governor of Georgia said it in regards to displacing the Cherokees.

I'll take your word for it.

Balfegor said...

I don't like the individual mandate either. It was included to prevent people from waiting until they are sick to get insured, then dropping coverage as soon as their illness is resolved.

Haha, if I understand the current House bill correctly, the "mandate" doesn't resolve this issue. They have guaranteed issue -- you don't have to get coverage if you'd prefer to pay the tax. Of course, if you pay the tax, it gets routed to the insurers anyway, through the health care purchase subsidies. Of course, if too many people just elect to pay the tax, it's likely that either the premiums charged will have to go up considerably or the tax itself will have to be increased, so it will no longer make economic sense to pay the tax instead of purchasing coverage.

Of the two, I think escalating premiums (premia?) is far more likely. Or, I suppose, they could try and soak the rich a little more, so our health care system can go completely bankrupt the next time there's a recession.

PatCA said...

"Might the Supreme Court strike the amendment down?"

Isn't that exactly the liberal game plan?

I do have a solution, though, to all this sturm and drang about funding this or not funding that. Let's have the government pay for everything! Just fill out a form, "I would like a new car" or "I need a house" or "I really need an abortion."

A new era of happiness will thus fall upon the land.

Balfegor said...

As it stands, the amendment would prohibit paying for abortions even if the money came entirely from participants' premiums.

How would you arrange that the money came entirely from participants' premiums? The whole point of insurance is that your procedures get paid for out of the premiums that other people are paying, not the premiums you pay in. If it's the premiums you pay in, that's a health savings account.

Aaron said...

FLS

> Then it overreaches. As it stands, the amendment would prohibit paying for abortions even if the money came entirely from participants' premiums.

Except participation is not entirely voluntary. the government is forcing you to buy SOMETHING. so how is it different from taxing you directly and making you pay for it from your taxes?

DBQ

Well, besides the "where is the power" argument, i would point out that roe v. wade is represents an actual denial of the power entirely. of course few conservatives would cite roe v. wade, but I wouldn't be surprised to see this thing get knocked down with the conservatives saying "congress is not granted this much power" and then the liberals saying, "Roe v. Wade."

traditionalguy said...

The ole debble religion is at the heart of the no federal funds for abortion amendment. The scriptures say that paid assassins are under God's curse along with their employers. The easy abortion ruling out of thin air by the SCOTUS was put into place in order to kill off black babies. That is not a good enough reason, since black babies have never tried to kill me first. Religion is usually good at identifying evil, even if it is not good at stopping it.

former law student said...

The whole point of insurance

Is that what you mean? Premium dollars pay for abortions right now, even under the CIGNA plan purchased by the RNC.

Balfegor said...

Except participation is not entirely voluntary. the government is forcing you to buy SOMETHING. so how is it different from taxing you directly and making you pay for it from your taxes?

The thing is, that's exactly what it's doing -- it is taxing you and making you pay for it with your taxes. That's what the subsidy does. FLS seems to think you can segregate the taxpayer-funded subsidy dollars from the participant dollars, but that's just an accounting trick (dollars are fungible) unless you separate the pools entirely (i.e. don't calculate the loss ratios on a combined basis, etc. etc.). You need to set up a supplementary plan entirely, in order to segregate the abortion dollars meaningfully.

Balfegor said...

Is that what you mean? Premium dollars pay for abortions right now, even under the CIGNA plan purchased by the RNC.

Yes, and I think you're right about that -- there are probably millions of pro-life people who are paying premiums into plans and unwittingly subsidising insurance. To the extent this issue gains prominence, though, I think there's going to be a lot of consciousness-raising about the problem of paying into insurance pools that cover abortion, in the evangelical community.

Balfegor said...

Sorry, I'm being unclear -- I think there are simultaneously two problems for pro-life citizens. Problem (1) is that they could be bullied into joining health insurance plans that will subsidise abortion => their money goes to subsidise abortion = bad. Problem (2) is that the way they're being bullied into joining health care plans is through a tax that will go to fund subsidies that will help people join health insurance plans that will subsidise abortion => their money goes to subsidise abortion = bad.

I think both of these are at issue here.

Aaron said...

Balf

don't bother trying to explain it. liberals don't understand business or capitalism. that's why they hate capitalism, because you always hate what you don't understand.

Triangle Man said...

Is that what you mean? Premium dollars pay for abortions right now, even under the CIGNA plan purchased by the RNC.

I asked about this a few days ago, and don't think I got a response. Do pro-life advocates reject group health plans that include coverage for abortion?

former law student said...

Aaron said...

you always hate what you don't understand.

Man, this is tempting. I think I will resist this temptation, and offer up this small sacrifice for the souls in Purgatory.

Dust Bunny Queen said...

Then it overreaches. As it stands, the amendment would prohibit paying for abortions even if the money came entirely from participants' premiums

The reason the amendment was needed is because the Government, in its total facsism, isn't going to allow insurance companies to offer plans that allow the consumer to pick and choose.

For instance, policies will cover pregnancy or drug counseling and other services that many people will never use. Nevertheless, they will be forced under threat of penalty or jail to purchase those policies.

If the government would allow insurnce companies to offer a more cafeteria style policy, this wouldn't be a problem.

This governmental interference at the State level is also why policies in liberal States like California, cost much more than another State. The State dictates that companies must cover stupid and unwanted procedures, whether WE like it or not.

Making abortion an elective rider that ISN'T financed by tax payer dollars, is a good thing.

A better thing would be if the Government would just butt out of our health care and insurance decisions.

Again. If YOU want to fund abortions.....set up a foundation and take contributions.

miller said...

The whole point is that I won't be allowed to have an insurance plan that doesn't cover abortion -- I will be required upon pain of jail time and fines to pay for abortion for others.

A neat hat trick by the government.

Triangle Man said...

Timely topic and news. According to this the GOP *just* dropped abortion coverage from its plan, but had it going back to 1991.

DADvocate said...

Is having the two judges of Mediterranean descent grouped together some sort of discrimination?

Synova said...

"Timely topic and news. According to this the GOP *just* dropped abortion coverage from its plan, but had it going back to 1991."

I've no doubt.

Is there any insurance that doesn't pay for abortions?

The one time we had a choice, when my husband worked at Lucasfilm, between three different providers, I went with the one that offered abortion in the least euphemistic way.

I picked the one that called it "abortion." And there was only one.

I don't remember what the "middle" one called it... probably termination or something.

The third, though, explained that it covered the "interruption" of pregnancy.

For about a week I went around frequently erupting into outbursts about how *lovely* that would be... just "interrupt" the pregnancy and then start it again later. Just put it on pause. Yay! Wow! They can do that? What a grand idea!

So I, as a pro-lifer, chose the plan that was honest.

former law student said...

the GOP *just* dropped abortion coverage from its plan, but had it going back to 1991.

Funny how it can take 18 years before something that violates your staunchest principles finally bothers you.

former law student said...

Is there any insurance that doesn't pay for abortions?

Obamacare! Finally a plan that social conservatives can embrace.

Synova said...

I suppose what I meant to say was that I would expect that the GOP plan, to the extent it had one (because I don't really think that the GOP had a *plan* to enact government health care) was probably mostly cribbed off of existing insurance policies.

Zach said...

...the Court stressed that Congress could refuse to subsidize medically necessary abortions because it left “an indigent woman with at least the same range of choice … as she would have had if Congress had chosen to subsidize no health care costs at all.”

But if she likes her current plan, she can keep it!

It's the old duality of the health care plan all over again. The plan doesn't coerce you -- except when it does! -- it just coerces every single person you could contract with to get health care.

Here's an interesting hypothetical. Could the bill require that funded abortions come from a single agency -- which would be deliberately underfunded and would not have the capacity to fill the natural demand?

Before you answer, what if that's the natural state of things under Obama care? After all, if you don't buy an MRI machine, you save twice -- once when you don't buy it, once when you don't have to operate it. Bear in mind that this plan is in all probability going to be chronically short of money.

Synova said...

"Obamacare! Finally a plan that social conservatives can embrace."

Not really. I mean, yeah, that's funny and all but taking out tax funds paying for abortion (okay, it's not *supposed* to be tax funds, just forced individual payment of premiums) doesn't change the essential fact that the government is making you pay for something, or using your money to pay for something, you may not want.

Everything about government is coercive. Some of it is a necessary evil, but that doesn't mean it's not evil.

El Presidente said...

Scalia in the midst of what we call "apoyar" a rough translation is 'leaner'.

Professor Althouse, why does the Constitutionality of something depend upon who sits in the chairs at the court? And people say communist dictators are bad. At least we provide for long term stability. At least some of us do.

Synova said...

No, okay... it's the GOP provided insurance for its employees.

Wow, big deal.

Aaron said...

FLS

> Funny how it can take 18 years before something that violates your staunchest principles finally bothers you.

In case you missed it, not 100% of the republican party opposes abortion. so maybe it is a sign of a more liberal RNC.

Or, maybe some pinhead lawyer told them they had to or else it might be considered sex discrimination. its embarrassing, but seriously, what is your point? what is the argument you are trying to make?

Does this suddenly make abortion a good thing? or obamacare constitutional?

Dust Bunny Queen said...

In case you missed it, not 100% of the republican party opposes abortion. so maybe it is a sign of a more liberal RNC.


I don't oppose abortion. I oppose MY PAYING for it.

Just in case YOU missed it.

Matt said...

"Hey wise Latina, I got some briefs for you to look into.

Matt said...

Or how about this? "Look, everybody, the ruling stands!"

Aaron said...

DBQ

I am not justifying the RNC being more liberal than the base. in my mind, that is generally a problem. i am just showing the fallacy in FLS's silly argument. i still can't figure out what he thinks this accomoplishes.

David said...

Scalia is just showing his Learned Hand.

Aaron said...

makes me think of an old onion piece, where the surpreme court vows to lose its virginity.

http://www.theonion.com/content/node/27640

The money quote is a lawyer' joke:

> Asked to assess his prospects for losing his virginity within the next two months, a confident Scalia lifted his judicial robe and quipped, "Res ipsa loquitur."

For non-lawyers that means "the thing speaks for itself," or more or less, its obvious based on the evidence.

Balfegor said...

Is there any insurance that doesn't pay for abortions?

I think there's a lot of plans that don't provide any reproductive coverage at all. They're apparently a lot cheaper, probably because they don't cover pregnancy and neonatal care and so on.

Aaron said...

seriously, how does abortion coverage even make sense?

Hey, here's a hint, ladies. if you don't want to have a baby, there is a much simpler way to do it and guess what? its far less likely to be evil. try BIRTH CONTROL.

And i for one will be more than happy to pay for that.

And if you have a medical condition that makes it so it is dangerous to have children, try MULTIPLE methods of birth control.

I mean if we are going to ration care and pay attention to the cost/benefit analysis, then doesn't that make sense?

And if you also don't want to destroy human life, ditto there.

Balfegor said...

Hey, here's a hint, ladies. if you don't want to have a baby, there is a much simpler way to do it and guess what? its far less likely to be evil. try BIRTH CONTROL.

Well, there's a question here of how absolutist your defense of human life is going to be. Some forms of birth control -- as I understand it -- permit fertilisation of the ovum, but simply prevent the fertilised egg from fixing on the uterine wall for proper development.

That's less murder-like than, say, partial-birth abortion. There's a sense in which the agency of the act is reduced -- you've simply arranged conditions beforehand so the fetus will die, as opposed to letting the fetus establish itself in the normal way, and then setting out deliberately to kill it. And in lots of cases people do think that the directness of the action matters morally. Setting up a death trap that some fool robber gets himself killed in seems less reprehensible than, say, setting out deliberately to stalk and kill that same robber in your darkened labyrinthine home. While wearing a bull's head, or perhaps a big pyramid. Or maybe that's just me.

There's still many people who would reject that distinction as artificial -- form over substance -- since in either case, the moral actor has actively decided to pursue to take the birth control pill or to undergo the abortion, with full knowledge of the consequences.

Essentially, there's a lot of people who think that a lot of varieties of birth control are tantamount to murder. Condoms, on the other hand, are generally okay, from the perspective of murder, but every sperm is sacred, as we all know. And there may be "Theology of the Body" issues implicated there.

kentuckyliz said...

Women have d&c's to complete an incomplete miscarriage--Stupak says too bad, pay for it yourself bitch. Not only do you have the grief of your lost child, but the huge hospital bill to pay too. Keep your legs closed next time.

Abortions treat ectopic pregnancies. Stupak says bitch pay or die.

Oh, our politicians are so compassionate to us little people. We should be grateful.

I bet Viagra is covered. Most politicians have penises and dammit the almighty penis must be protected.

Father Martin Fox said...

Re: the GOP's abortion insurance violating it's "staunchest principles"...

The GOP has no principles, which has been clear for many years, and flashing in sky-high neon-lit letters for the past few years.

Re: the individual mandate...

The President keeps saying that it's about "fairness" because otherwise the uninsured will have to be paid for out of our pocket, a la uninsured motorists.

So...if Bill Gates elects not to buy insurance, why should he be mandated to buy insurance on that argument? I'll bet a week's pay no one will be exempted on the basis of being rich enough to self-insure.

Father Martin Fox said...

Kentuckyliz:

What is your source for your claim that the Stupak amendment would cover a D&C after a miscarriage, and treatment for an ectopic pregnancy?

The U.S. bishops do not oppose federal funding for these treatments, because the first is not an abortion, and the second is one of those "to protect the life of the mother" situations.

WV: 'terrimas' = Terri's personal winter holiday

class-factotum said...

Is there any insurance that doesn't pay for abortions?

I worked for an insurance company in the late 80s. Our plans covered abortions as a standard benefit, but for the Catholic hospital clients, we did not cover abortions.

Other than that, there was not a whole lot of picking and choosing of what would be covered and what would not. Some companies didn't want to cover AIDS and we told them to go elsewhere. We covered people who were sick. Period. We didn't cover experimental treatment or acts of war, but we didn't pick and choose certain illnesses to cover.

When I worked for International Paper a few years ago, birth control pills were not covered, but abortions and viagra were. After I wrote a strongly worded letter to the benefits department noting that middle-aged executives who could not get it up could afford their little blue pills but 22-year-old receptionists making $17,000 a year could not (maybe as strong as the UN would send to Iran?), BCP were covered. Coincidence? I think not.