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.
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