hunter of justice

Why the Stupak amendment is unconstitutional

By Cardozo Law Professor Marci Hamilton, published in Writ:

...Although many have attacked the Amendment as a policy matter, the constitutional arguments against it have been underplayed. That is a shame, because under any reasonable reading of the Constitution, the Stupak Amendment is unconstitutional: Indeed, it violates three different constitutional principles.

How the Stupak Amendment Violates The Establishment Clause

First, the Amendment violates the Constitution's separation of church and state. The anti-abortion movement is plainly religious in motivation, and its lobbyists and spokespersons represent religious groups, as is illustrated by the fact that the most visible lobbyists in the Stupak Amendment's favor have been the Catholic Bishops. This is a brazen and frank attempt to impose a minority's religious worldview on the entirety of American healthcare. (A majority of Americans have favored a woman's right to choose for many years.) There is no secular purpose for the extension of the Hyde Amendment to all private health insurance plans as well. Accordingly, whatever secular purpose might be devised by those trying to defend the Stupak Amendment in court would be a sham purpose, intended to cover the frankly religious pandering the Amendment represents.

One of the clearest Establishment Clause principles is that the government may not impose a certain group's religious beliefs on those with different beliefs. The principle was articulated by the framer of the First Amendment, James Madison, in his important work "Memorial and Remonstrance," and it has been a mainstay of Establishment Clause doctrine. The Stupak Amendment violates this principle by imposing on the entire country a religious worldview that millions of Americans do not share. Moreover, this imposition of religious belief in the private sphere is in the context of healthcare, which every American needs.

How the Stupak Amendment Violates The Equal Protection Clause

The Stupak Amendment also discriminates on the basis of gender. Only women have to deal with the difficult question of abortion. Conspicuously missing are parallel exemptions barring funding for Viagra, or for, say, prostate surgery treatments, which can leave a man sterile and therefore operate as a birth control measure.

In addition, the exemption (the purpose of which is, again, obviously a religious one) does not serve any medical end, when serving medical ends is presumably the overall and most important purpose of the Health Care Reform Act. If health is truly to be served, then refusing to permit women to obtain even private health insurance that covers unplanned pregnancies, or pregnancies involving fetuses with fatal abnormalities, is not just discriminatory, but outright irrational.

How the Stupak Amendment Violates Substantive Due Process and Privacy Rights

Finally, the Stupak Amendment attempts to curtail -- across the board – the privacy rights that Roe v. Wade and its progeny secured for women. While other restrictions on abortion (including the Hyde Amendment) have been upheld by the Supreme Court, this is a far more expansive and repressive move against women, and it surely institutes an undue burden on a woman's right to obtain an abortion in consultation with her doctor. Although it is not clear precisely where the boundary line lies, it is very clear that this move transgresses any reasonable interpretation of the line the Court's cases draw.

The Stupak Amendment is also a harbinger of future constitutional violations, for it erects a slippery slope of top-down control of the spectrum of healthcare options. Abortion is surely just the first foray of the religious lobbyists' battle to take away Americans' right to choose among the full panoply of healthcare options. Attempts to control and halt the funding of both emergency and ordinary contraception surely are not far behind, for such attempts are part of the very same politico-religious platform that includes the Stupak Amendment. There is no more obvious violation of Griswold v. Connecticut – which established that laws prohibiting contraception are unconstitutional under the Court's right-of-privacy doctrine -- than for the federal government to reduce the affordability and, therefore, the availability of contraceptives for all Americans.

Conservative Senators who are pandering to religious interests (and/or simply imposing their own religious beliefs on the country) have been quoted recently as saying that they will not permit the Health Care Reform Act to backtrack on abortion issues. But backtracking is a misleading description of what the religious lobbyists are seeking. The truth, instead, is that the Stupak Amendment is a far reach beyond the already repressive Hyde Amendment, and that the advent of the federalization of healthcare is giving anti-abortion religious believers a one-stop lobbying opportunity on an issue that they were previously having to address on a state-by-state basis.

In sum, if the millions of Americans who believe in choice do not act quickly and in a concerted fashion, then we will have a historic rollback of women's liberties. That would be a true disaster, for not only is the Stupak Amendment repressive and regressive, but it also violates constitutional rights.

Will Supreme Court grant cert in Christian Legal Society case?

A cert petition that has been lingering before the Supreme Court since last summer raises the question of whether a Christian student group's constitutional rights were violated when a public law school refused to grant it official status because the group excluded gay and non-Christian students in violation of the school's non-discrimination policy. Clearly, someone on the Court is interested in granting cert: the case has been on the Court's conference calendar five times (counting today), but still no decision on cert has been announced. This week, the clerk of the Court sent a letter to the Ninth Circuit clerk's office requesting that the complete record in the case be transferred to the Supreme Court, a step that is normally taken only after cert is granted.

If the Court does add Christian Legal Society v. Martinez (No. 08-1371) to its docket, the debate over the conflict between religious liberty and anti-discrimination law will jump to the top of the list of important constitutional law issues related to sexual orientation. The decision could set the terms for what is increasingly the central philosophical question in lgbt rights law: the extent to which religious entities (or even individuals) should be exempt from civil rights protections for sexual orientation. (Additional background here)

If any decision is reached today on granting cert, it will be announced on Monday. Given that there is little chance that the Justices have fully reviewed the lower court documents yet, however, the case may well be rescheduled for its sixth time on the conference calendar.  The Court's next conference is November 24.

Excerpts from the lower court opinion after the jump -->

Sotomayor unleashed

The current issue of Latina magazine contains a feature on the personal side of Justice Sotomayor, written by a good friend, Sandra Guzman. The magazine has posted excerpts on its web page, including the following:

One evening this past spring, as we prepared dinner for a group of friends, I asked her for some advice. She listened closely as I relayed my marital problems. I still recall her words, which I carry in my heart to this day. She told me that we have been wrongfully taught the Cinderella fairy tale as a paradigm of what happy relationships are supposed to be. And when we fall short of that, we suffer for it. To find happiness in love, she said, we have to make up our own rules. It’s not easy, but it’s doable. The process may involve unlearning what we have been taught and then figuring out what makes us happy. There are all types of relationships and arrangements to choose from. Of course, the trick is finding a companion who shares those values.

Love is not the only area where Justice Sotomayor has faced her fears and worked her way through them. Even as recently as April, she had doubts about her potential rise to the Supreme Court. She had been on President Clinton’s Supreme Court short list, but no seats became vacant. When Obama won the White House, the legal world hedged their bets on the brilliant judge with the impeccable résumé. But weeks before Obama made public his pick to replace Souter, Sotomayor called her confidante and good friend [NY attorney Lee] Llambelis, telling her that she wanted to pull her name from consideration.

“You have to understand that Sonia is a very private person,” Llambelis explains. “She didn’t want to go through another public vetting process and a potential public dressing-down by those on the Republican right who opposed her nomination. Sonia was happy being a Federal Appeals judge, loved her life in New York and felt fulfilled. She worried about having less time to spend with her mother, family and friends, particularly given her mom’s age and potential health complications.” Llambelis recalls listening to her friend, whose “I can” mantra was being drowned out by last-minute uncertainty. She told her to think beyond herself. “At this point, this is not about you,” Llambelis said to her. “It’s about little girls and boys, brown and black, who live in the projects and in poor communities around our nation, who can dream bigger if you are in the Supreme Court. You cannot back down now.” Sotomayor promised to think about it overnight. And in the morning, she woke up with a lighter heart and a bigger purpose.

In her short tenure so far on the court, the justice we have witnessed is no shrinking violet. She asks tough questions and is not intimidated by her rookie status. Sotomayor’s charm and confidence surprise very few people who know her, including the man who nominated her. While President Obama’s staff was preparing Sotomayor for the confirmation hearings in a White House office called the War Room, the team covered all the potentially explosive questions and briefed her on every minute detail, including how to dress for the cameras. They even advised her to keep her nails a neutral shade, which she did. But on the day of the White House reception celebrating her appointment, Sotomayor asked the president to look at her freshly manicured nails, holding up her hands to show off her favorite fire engine–red hue. The president chuckled, saying that she had been warned against that color.

She sure had, but Sotomayor was not finished. She then pulled her hair back behind her ears, exposing her red and black semi-hoop earrings, a beloved accessory among Latinas across America—from the South Bronx to Houston to East Los Angeles.

Obama joked that she had been briefed on the size of the earrings as well. Without skipping a beat, Sotomayor replied: “Mr. President, you have no idea what you’ve unleashed.” He responded, “Justice: I know and remember it’s a lifetime appointment. And I and no one can take it back.” And that, as they say, is the final verdict.

Who's on first? Congress and states reshuffle lgbt issues - Updated

In  last week's election, Maine, New Jersey and Virginia delivered a triple whammy to progressives.  Although it is a mistake to treat these results as a herald of conservative resurgence - polls also show strong support for a public option in health reform, for example - it is nonetheless silly to deny that winning the elections in those three states (or two, or one) would have been a lot better than losing all of them. Instead, marriage bit the dust in yet another ballot contest; and Dems in Congress are spooked by the loss of the two governorships, no matter how many op-eds proclaim that the results were driven by local issues.

So what happens as a result?  As one of the most vulnerable and expendable of Dem priorities, lgbt issues look considerably shakier than they did two weeks ago.

In Congress, Rep. Barney Frank - who, whatever his faults, often speaks realpolitik to wishful thinking - now says that ENDA will likely get to the House floor in February.  This is not what advocates were thinking two weeks ago, when the sense was that mark-up in the House, followed by a floor vote, could happen before Thanksgiving, certainly before Christmas.  Instead, Barney is predicting that domestic partner benefits for federal employees is likely to jump the queue, moving ahead of ENDA in the sequence of lgbt rights legislation. Okay, federal employee benefits is an important issue. But ENDA is the bill that will shift workplace dynamics and help achieve basic material equality for every lgbt person in the nation who is employed. 

The difference between the two? ENDA includes transgender persons; partner benefits does not implicate that issue. In other words, this is ugly. And dangerous. It is ESSENTIAL that both the House and the Senate pass ENDA before the 2010 election season begins in a few months, around spring break in academic-speak. (In some, mostly Beltway, politics-obsessed quarters, it began on November 5, 2008.)

(UPDATE 11/17 - The mark-up in the House committee on the Domestic Partners Benefits and Obligations Act will be next Wednesday, November 18. You can watch it here. The mark-up on ENDA was originally set for the 18th, but has been postponed, with no new date set.)

And in the states -

In New Jersey, the plan was always that the lame duck legislative session would enact a marriage law, regardless of who won the governor's race. That is still the plan, but it looks less like a lock than it once did.  Soon to be ex-Governor Jon Corzine will sign a marriage law if it gets to him in the two months remaining in his term. After that, incoming Governor Chris Christie has vowed to veto such a bill. Although the top job changed hands, there was essentially no change in the party breakdown in the legislature. So will the deal to pass a new marriage bill hold, or will the Maine vote scare off enough legislators to delay any possibility in NJ for another four years? Apparently, there is little doubt that a marriage bill would make it through the state house, but the state senate vote is likely to be a squeaker.

And New York ...What can I say -- New York's state legislature has been dysfunctional for so long that even the smallest sign of adulthood looks like up from here. Governor David Paterson, who is as strong a supporter of marriage equality as any non-gay politician anywhere, has apparently struck a deal with state senate leaders to guarantee that there will be vote on the issue before Christmas. (See Gay City News for a fascinating account of the machinations.) Which side will win this vote is anybody's guess.

If we get to New Year's Day 2010 and neither New York nor New Jersey has legalized gay marriage, that campaign will be hitting its lavender ceiling much sooner than the advocacy groups expected.

Stupak amendment would result in massive cut in abortion access

The Stupak amendment to the House health reform bill, adopted by a 240 to 194 vote, does not explicitly bar any insurance plan from covering abortion, yet it achieves that effect by barring any plan that accepts federal subsidy dollars at all from including abortion coverage from the insurance exchange through which plans will be sold.  Few, if any, insurance plans will have a body of enrollees that does not include at least some receiving premium subsidies. The abortion access issue had been building for months, and finally exploded as a floor vote became imminent. (See my first post from July here; additional background here, here, and here.)  The Kaiser Family Foundation has posted helpful Qs and As. Following is an analysis of the final amendment by Jessica Arons, from Wonk Room:

Here’s what the Stupak Amendment does:

1. It effectively bans coverage for most abortions from all public and private health plans in the Exchange: In addition to prohibiting direct government funding for abortion, it also prohibits public money from being spent on any plan that covers abortion even if paid for entirely with private premiums. Therefore, no plan that covers abortion services can operate in the Exchange unless its subscribers can afford to pay 100% of their premiums with no assistance from government “affordability credits.” As the vast majority of Americans in the Exchange will need to use some of these credits, it is highly unlikely any plan will want to offer abortion coverage (unless they decide to use it as a convenient proxy to discriminate against low- and moderate-income Americans who tend to have more health care needs and incur higher costs).

2. It includes only extremely narrow exceptions: Plans in the Exchange can only cover abortions in the case of rape or incest or “where a woman suffers from a physical disorder, physical injury, or physical illness that would, as certified by a physician, place the woman in danger of death.” Given insurance companies’ dexterity in denying claims, we can predict what they’ll do with that language. Cases that are excluded: where the health but not the life of the woman is threatened by the pregnancy, severe fetal abnormalities, mental illness or anguish that will lead to suicide or self-harm, and the numerous other reasons women need to have an abortion.

3. It allows for a useless abortion “rider”: Stupak and his allies claim his Amendment doesn’t ban abortion from the Exchange because it allows plans to offer and women to purchase extra, stand-alone insurance known as a rider to cover abortion services. Hopefully the irony of this is immediately apparent: Stupak wants women to plan for a completely unexpected event.

4. It allows for discrimination against abortion providers: Previously, the health care bill included an evenhanded provision that prohibited discrimination against any health care provider or facility “because of its willingness or unwillingness to provide, pay for, provide coverage of, or refer for abortions.” Now, it only protects those who are unwilling to provide such services.

One in three women will have an abortion in their lifetime. Eighty-seven percent of employer plans offer abortion coverage. None of that will matter if the Senate takes its cues from the House. In every other way, this bill will expand access to health care. But for millions of women, they are about to lose coverage they currently have and often need.