Marci A. Hamilton: Why the Stupak Amendment to the Healthcare Reform Bill Is Unconstitutional
[Professor Marci A. Hamilton holds the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University, where she is the founding Director of the Intellectual Property Law Program. She has been a visiting scholar at Princeton Theological Seminary, the Center of Theological Inquiry, and Emory University School of Law.]
The United States Conference of Catholic Bishops registered a major victory this week, when it succeeded in pressuring members of the House to include in the healthcare reform bill the so-called "Stupak Amendment." The Amendment is a provision that carves out new territory for those organizations and persons who oppose abortion -- virtually all of whom are religiously-motivated. It does so by forbidding federal funds from being applied to abortions in any instance, including when those funds are being used to subsidize the purchase by low- or middle-income individuals of private insurance on the open market. Under the Stupak Amendment, federal funds cannot be used to pay for "any part" of an insurance plan that would fund abortions.
Before the Stupak Amendment was added, the bill had already included a compromise provision that grandfathered in the approach taken by a prior federal law that sharply restricts funding for abortions. That law, known as the Hyde Amendment, has forbidden federal spending by Medicaid on non-therapeutic abortions since 1976. There have been times in recent history when no abortions could be federally-funded, but at this point a few circumstances permit federal funding, including a pregnancy deriving from incest or rape, or a threat to the life of the pregnant woman. Despite its burden on women's rights, the Hyde Amendment has been upheld in a series of Supreme Court cases, including Maher v. Roe.
The Health Care Reform Act in the House had included a compromise provision that recognized the Hyde Amendment principle, but did not extend the prohibition to the funding of abortions through private insurance plans. But the addition of the Stupak Amendment changed all that when it extended the ban on funding for abortions to private insurance plans, thus creating a world in which the vast majority of plans are unlikely to cover abortion and in which almost all women will have no choice but to pay for abortions out of pocket. This is a remarkable attempt to overreach into the private sphere, and to force all Americans' healthcare plans to reflect the religious beliefs of one subset of Americans.
At this point, it appears unlikely that the Stupak Amendment will survive the healthcare reform battles in the Senate. President Obama quickly criticized it and Senator Boxer produced a list of 40 Senators who would not vote for healthcare reform with such onerous restrictions on women. But the anti-abortion lobbyists have shown their hand: They fully intend to use the federalization of healthcare to further their religious agenda. Therefore, this is unlikely to be the last we hear of the Amendment, even if it does not survive the Senate this time around.
Although many have attacked the Amendment as a policy matter, the constitutional arguments against 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...
Read entire article at FindLaw
The United States Conference of Catholic Bishops registered a major victory this week, when it succeeded in pressuring members of the House to include in the healthcare reform bill the so-called "Stupak Amendment." The Amendment is a provision that carves out new territory for those organizations and persons who oppose abortion -- virtually all of whom are religiously-motivated. It does so by forbidding federal funds from being applied to abortions in any instance, including when those funds are being used to subsidize the purchase by low- or middle-income individuals of private insurance on the open market. Under the Stupak Amendment, federal funds cannot be used to pay for "any part" of an insurance plan that would fund abortions.
Before the Stupak Amendment was added, the bill had already included a compromise provision that grandfathered in the approach taken by a prior federal law that sharply restricts funding for abortions. That law, known as the Hyde Amendment, has forbidden federal spending by Medicaid on non-therapeutic abortions since 1976. There have been times in recent history when no abortions could be federally-funded, but at this point a few circumstances permit federal funding, including a pregnancy deriving from incest or rape, or a threat to the life of the pregnant woman. Despite its burden on women's rights, the Hyde Amendment has been upheld in a series of Supreme Court cases, including Maher v. Roe.
The Health Care Reform Act in the House had included a compromise provision that recognized the Hyde Amendment principle, but did not extend the prohibition to the funding of abortions through private insurance plans. But the addition of the Stupak Amendment changed all that when it extended the ban on funding for abortions to private insurance plans, thus creating a world in which the vast majority of plans are unlikely to cover abortion and in which almost all women will have no choice but to pay for abortions out of pocket. This is a remarkable attempt to overreach into the private sphere, and to force all Americans' healthcare plans to reflect the religious beliefs of one subset of Americans.
At this point, it appears unlikely that the Stupak Amendment will survive the healthcare reform battles in the Senate. President Obama quickly criticized it and Senator Boxer produced a list of 40 Senators who would not vote for healthcare reform with such onerous restrictions on women. But the anti-abortion lobbyists have shown their hand: They fully intend to use the federalization of healthcare to further their religious agenda. Therefore, this is unlikely to be the last we hear of the Amendment, even if it does not survive the Senate this time around.
Although many have attacked the Amendment as a policy matter, the constitutional arguments against 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...