by Chris Gacek
November 20, 2009
There is much gnashing of teeth by abortion supporters over the inclusion of the Stupak-Pitts Amendment in the Speaker Nancy Pelosi health care bill H.R. 3962. Bart Stupak, Michigan Democrat, and Joe Pitts, Pennsylvania Republican, succeeded in amending H.R. 3962 so that no government funds can be used to pay for abortion. Claims that Stupak-Pitts is out of line with current law or that it is unconstitutional are simply false.
The Stupak-Pitts amendment (Stupak-Pitts) combines two principles. First, it contains the core principle of the Hyde Amendment that the government not encourage abortion through direct funding or subsidization of the cost of plans that cover elective abortion. Second, Stupak-Pitts refuses to accept deceptive schemes in which funds deposited into a common pot are claimed to be separate. Stupak-Pitts recognizes the obvious truth that money is fungible. Hence, Stupak does not swallow the deception that government subsidized insurance policies covering abortion do not involve the government in the promotion or encouragement of abortion through subsidies.
Anyone with an ounce of foresight on the Left should have seen this coming. The current principle in federal law a la Hyde is that the United States government does not pay for abortions (with exceptions of mothers life, rape and incest) or pay for the cost of any plan that covers abortion. This principle even carries over to the private plans purchased by government employees. Now, if, as the Democrats want, the government is going to dominate, micro-regulate, and subsidize the nations health care system both government run and privately insured then the question of how the Hyde principle will apply to these new programs arises immediately.
The answer is that Hydes logic runs the gamut of all the new health care expenditures and programs. Therefore, Stupak-Pitts carries Hyde forward and refuses to buy into the accounting gimmicks that would give the Democrats cover for funding abortions. Speaker Pelosi had a choice. She could either allow a vote on Stupaks amendment, or she could accept the defeat of her health care bill. She chose to allow a vote on Stupak-Pitts, and her side lost. To strip Stupak-Pitts from the bill now would be highly dishonest, and, if Stupak-Pitts can count votes, it will lead to the defeat of Obama-Pelosi health care in the House.
As for the claims that Stupak-Pitts is unconstitutional, they are wrong as well.
The major constitutional point here is that the Congress is given wide discretion in deciding how to spend money and fund or not fund certain activities. This is true even if the activity in question rests on the exercise of a constitutional right. The old saw is that merely because there is freedom of the press, the government doesnt have to buy a writer a printing press, paper, and ink. The abortion-promoting members of Congress need to tell us why the government should buy them their equivalent of a printing press.
The argument that Stupak-Pitts violates Establishment Clause principles is absurd. Stupak-Pitts establishes no church or a favored religious organization. It apparently came as a shock to Lynn Woolsey and Diana DeGette that Catholics are allowed to vote and petition their government. While considering whether to import Guy Fawkes Day to the American calendar, they and their acolytes have issued various threats and slanders against the Papists. Such claims probably wont sway Justice Kennedy. Furthermore, you dont have to be a Christian to be pro-life. Even atheists can read ultra-sounds. Ask Bernard Nathanson, a physician and founder of the modern abortion movement whose viewing of fetal ultrasounds led him to reject abortion.
A series of liberal activist constitutional claims are also made against Stupak-Pitts. Equal Protection Clause. Substantive Due Process. Privacy. All the usual suspects. In other words, the gamut of the Were liberals and we dont like this law, so its unconstitutional arguments. Unfortunately for the Stupak opponents, each of these claims could be made against the Hyde Amendment, and the 1980 decision upholding the Hyde Amendment, Harris v. McRae, has stood for 30 years. Furthermore, the public has held constant in its disapproval of government endorsement and promotion of abortion since Hydes first enactment.
Of course, all these arguments are academic in some sense. What matters these days is the amount of raw judicial power that can be exercised by the Supreme Courts judicial activists and policy makers. Stevens, Breyer, Ginsburg, and Sotomayor will vote to overturn Hyde & Stupak. It boils down to Justice Kennedy - - again. Aint life grand in a judicial oligarchy?