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Abortion Compromise Unconstitutional? Key House Members Raise Objection
Rep. Diana DeGette (D-CO)
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A number of key pro-choice Democrats--including Sens. Barbara Boxer (D-CA) and Patty Murray (D-WA)--have said they can get behind the new abortion compromise in Senate health care legislation.
Rep. Lois Capps (D-CA), author of an early abortion compromise that would have required insurance companies to segregate federal and private dollars, and to finance abortions through the latter pool, is disappointed, but ultimately supportive.
Capps says:
I am pleased the Senate appears to be moving forward on health reform, however, I am disappointed that women's access to full reproductive health care is again paying the price. The provisions regarding abortion services in the underlying Senate bill, based on my earlier proposal, ensured that federal funds would not be used to pay for this legal medical procedure yet still provide women in need with access to this procedure. This latest compromise is far from perfect but it will allow most middle and low income patients to purchase comprehensive health insurance plans, something the House bill language would prevent. As we move forward with this historic legislation, we must ensure all patients can purchase health care plans that best meet their needs. I want to thank the Senators, especially Senators Barbara Boxer (D-CA) and Patty Murray (D-WA), who worked to maintain a common sense compromise approach to this challenging issue.
But Reps. Diana DeGette (D-CO) and Louise Slaughter (D-NY)--co-chairs of the Congressional Pro-Choice Caucuse--say they're not sold. They say the new compromise is possibly unconstitutional, and that they and other pro-choice House members could still reject it.
As the Co-Chairs of the Congressional Pro-Choice Caucus, we have serious reservations about the abortion provision included in the U.S. Senate's health care bill. This provision is not only offensive to people who believe in choice, but it is also possibly unconstitutional. As we have maintained throughout this process, health care reform should not be misused to take away access to health care. The more than 190-member Caucus will review this language carefully as we move forward on health care reform.
The Nelson compromise may ultimately allow health care reform to pass in the Senate--but with strong opposition from both pro-life and pro-choice members and constituent groups, the language still an open question in the House. Onward to conference!
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mcc
December 19, 2009 7:28 PM
What would the basis for it being unconstitutional be?
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ethanatx
December 19, 2009 7:38 PM in reply to mcc
It could be seen as a bill of attainder.
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mcc
December 19, 2009 8:13 PM in reply to ethanatx
Would you please explain what you think a "bill of attainder" is?
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The Commenter Formerly Known as NCSteve
December 20, 2009 8:23 AM in reply to mcc
It's not a bill of attainder, except in wingnut logic. A bill of attainder is a law in which a legislative body issues a judicial decree that a person is guilty of a crime and orders the punishment.
The only possible problem I can think of is an equal protection clause violation, which I doubt this Supreme Court would find.
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Susan Cass
December 21, 2009 4:41 AM in reply to The Commenter Formerly Known as NCSteve
A bill of attainder can also be a law that punishes a certain group or person without trial. Something like the recent law that was passed by the House to tax Wall Street bonuses. It was declared unconstitutional for just that reason.
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i said GOOD DAY sir
December 19, 2009 7:49 PM in reply to mcc
Maybe they would be seen as effectively curtailing the rights of a subsidy-receiver to receive abortion services in certain areas, given the cost of a procedure. Although personally I don't buy this, or this whole fight, given that insurance often doesn't cover abortions.
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i said GOOD DAY sir
December 19, 2009 8:10 PM in reply to i said GOOD DAY sir
From NPR:
"A Guttmacher researcher told us that while the study did not collect any specific data on what types of abortions were reimbursed by insurance and what types were not, it was "logical" to conclude that more first trimester abortions performed in abortion clinics that cost only a few hundred dollars are self-paid, while more second-trimester abortions, that are often performed for fetal abnormalities or maternal health reasons in hospitals and can cost thousands of dollars, are reimbursed by insurance."
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david46
December 20, 2009 7:25 AM in reply to i said GOOD DAY sir
That is a good theory of the case for calling it a Bill of Attainder (excellent in fact), but based upon what little precedent there is in this area of Costitutional law, it is highly improbable that any court will buy the argument. The last Supreme Court decision was in the late 1940's and it appears that a law's focus has to be far more narrow and may need to actually name the person or organization to run afoul of the Bill of Attainder clause.
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Cal Gal
December 20, 2009 2:47 PM in reply to david46
Like the anti-ACORN bill. That one seems to actually BE a bill of attainder.
I'm thinking the unconstitutionality may be more of the core Roe v. Wade logic of a privacy between a woman and her doctor.
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slb
December 21, 2009 1:34 AM in reply to Cal Gal
And I suspect the conservative majority on the current Court might just leap at a chance to scrap Roe v Wade.
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LindaR
December 19, 2009 7:54 PM in reply to mcc
How about making one group of citizens suffer because of another group of citizens' religion?
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kenga
December 20, 2009 9:04 AM in reply to LindaR
That certainly seems to me to be the outcome.
But, I don't think it can be couched in terms(in a legal argument) as falling afoul of this:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof," so it would be a stretch.
The outcome, though, seems to me as though it should matter, for purposes of Constitutionality.
Separate but unequal?
I'm still at a loss as to why amendments haven't been made to the abortion funding restrictions, which greatly amplify subsidization for contraception and the range of women entitled to subsidies(male contraception should be cheap too). I.e. force the anti-abortion camp to eat robust pregnancy prevention in order to get their bite of abortion prohibition.
I'd like to see requirements making emergency contraception more easily available when the pharmacist refuses to dispense it - make it over-the-counter and require self-checkout at those locations where staff may not acquiesce(for religious reasons) in completing the purchase .
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Cy Guy
December 19, 2009 7:40 PM
If it is unconstitutional, shouldn't pro-choice Rep's support it and then block it in the courts after the bill is passed? Remember these exchanges aren't going to happen for FOUR years, let's get the reforms included in this bill on the books and hope to improve the exchanges before they become a reality.
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AJM
December 19, 2009 7:59 PM in reply to Cy Guy
You want to trust a 5/4 Conservative court with appointments from Bush? That's the basis on which women are supposed to gamble their rights?
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david46
December 20, 2009 7:28 AM in reply to Cy Guy
Yes!!
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FDRdog
December 19, 2009 7:47 PM
Bringing up the constitutionality of this compromise sounds like a slippery slope to me. If it were to reach this scotus, my money would be on a loss for the pro choice faction which might open up an avenue for other unrelated abortion appeals.
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Viva!America!
December 19, 2009 7:47 PM
Possibly? Well find out before you speak woman.
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Maritza
December 19, 2009 7:50 PM
It isn't unconstitutional at all. Different states can determine their own health care as long as it doesn't take away a woman's right to choose.
This bill doesn't say that women can have abortions but instead that money for them won't be available through the exchange.
Obama is a constitional lawyer and he would know.
This is a HUGE stretch.
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AJM
December 19, 2009 8:03 PM in reply to Maritza
Forcing one group to obtain a portion of their health care through a less efficient means (allowing states to bar the purchase of abortion coverage through the exchanges which are supposed to be the method to allow competition to reduce cost) on the basis of some one else's religious objections?
Obama was trained as a constitutional lawyer but he is also a politician and he has sold out women so he can claim an 'historic' victory with this bad bill.
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Richardxx
December 19, 2009 8:15 PM in reply to AJM
If this proposal is unconstitutional then the Hyde Amendment is unconstitutional. Not going to happen. This is a political talking point trying to change pro choice progressive minds before the vote, nothing else.
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AJM
December 19, 2009 10:29 PM in reply to Richardxx
Hyde was wrongly decided.
Obama is sworn to uphold the Constitution. He makes his own decision as to whether or not Hyde is constitutional. Apparently, it is fine with him both as to its constitutionality and as to its policy implications.
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Richardxx
December 20, 2009 5:00 AM in reply to AJM
Hyde, however, was decided. Rightly or wrongly. Its' decision is going to determine what happens to this amendment.
More importantly, this is not the time to fight over abortion!
Normally abortion issues matter to me. I well remember life before Roe vs. Wade. Right now, however, is the time to do whatever it takes to make the issue go away for the moment. Health care is the priority, abortion is a distraction.
The pro-choice "forces" such as they are simply are of no benefit in the battle that matters right now, and the anti health care and anti governance forces are reaching for the distraction as one more tool to kill health care.
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JadeZ
December 20, 2009 6:31 AM in reply to Richardxx
apparently this is not the time to fight over anything.
and thats why we have the mess we do...............
thanks for playing though.
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AJM
December 20, 2009 8:47 AM in reply to Richardxx
How do you propose to restore women to full citizenship when the abortion provisions in this bill once passed can only be removed if you can overcome a filibuster?
Obama was quite willing to sacrifice the rights of women for this bad bill.
And he keeps lying about it. The claim is that if we don't do it now there will be no chance to do it right later and at the same time the claim is that we can fix any of the problems in it later.
The pressures which lead to the bill making it this far would still exist after 2010 but any attempt to fix problems in the bill require the ability to over come a filibuster.
Kill the bill.
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ema
December 19, 2009 8:45 PM in reply to Maritza
This bill doesn't say that women can have abortions but instead that money for them won't be available through the exchange.
The new abortion "compromise" says that States can void the decision of insurance plans to cover any and all abortions (both abortions for which federal funding is prohibited and abortions for which federal funding is allowed).
Of course, in theory, just because you're forcing women to spend their money to buy health insurance that doesn't cover a legal, safe and effective, and basic procedure does not mean that the bill prohibits abortions and women cannot have them. [They can always get a hold of a magic wand, wave it about and come up with the extra hundreds to thousands of dollars needed.] So I'm still unclear on what the "possibly unconstitutional" might be.
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PJEvans
December 19, 2009 8:54 PM in reply to Maritza
You might want to look at in the context of the first amendment:
Congress will be passing a law that respects some religious views, but not others.
Which is something that I've thought for years about this whole thing: they're trying to sneak in a state religion through the back door of Congress. And a lot of congresscritters are ignorant enough, or bribed enough, or bigoted enough, to allow it to happen.
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Jen R
December 20, 2009 10:53 AM in reply to PJEvans
"Congress will be passing a law that respects some religious views, but not others."
There are Christians of all denominations, Jews, Muslims, Buddhists, other religious believers, and nonbelievers on both sides of the abortion issue.
I don't think you're going to be able to make that argument stick.
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ethanatx
December 19, 2009 7:56 PM
That took me down an interesting line of thought. The provision about pre-existing conditions does not go into effect for four more years also(it is however immediate for children). Within the bill is language that would fine those who do not have health insurance. I have not read the entire thing, but, if folks with pre-existing conditions are blocked by the insurance industry, and are fined, this to may well qualify as a bill of attainder. It is incredibly sad that a reasoned debate was not allowed to happen, resulting in a bill that is dangerously flawed. The hang up in the courts could go on for years. I had considerable hope for this legislation but at this point I am finding it very hard to support. Sadly I am not a senator, so there is very little I could do.
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Richardxx
December 19, 2009 8:18 PM in reply to ethanatx
Pass something. Then fix it.
Whatever it is will be bad to start with. It always is.
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AJM
December 20, 2009 8:51 AM in reply to Richardxx
Bad advice.
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The Commenter Formerly Known as NCSteve
December 20, 2009 8:30 AM in reply to ethanatx
The "fine" phases in beginning in 2012, starting at $350 for an indvidual and ending in 2016. There will be no period when people are "fined" for not having insurance they can't get because of a preexisting condition. They did, at least, have enough brain power on the job to think through that.
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Stroszek
December 20, 2009 11:26 AM in reply to The Commenter Formerly Known as NCSteve
Yes, but we're beyond the point where we're going to address facts. Now we're just making stuff up to scared people.
To the OP: the mandate isn't going into effect until the exchanges and subsidies do.
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Ethan
December 19, 2009 8:23 PM
If it's unconstitutional, the anti-abortion provision will be struck by some federal court...hopefully.
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jkenney
December 19, 2009 8:53 PM
Didn't DeGette and Slaughter vote for the House Bill, which had the much worse Stupak language? Are they really now threatening to vote against the bill if it has somewhat better language?
I have not read the entire thing, but, if folks with pre-existing conditions are blocked by the insurance industry, and are fined, this to [sic] may well qualify as a bill of attainder.
What? This doesn't even make any sense. The mandate (and fines) only come into effect at the same time as the pre-existing conditions thing.
They can always get a hold of a magic wand, wave it about and come up with the extra hundreds to thousands of dollars needed
Abortions are, as I understand it, generally a few hundred dollars. And most people pay for it out of pocket already, whether or not their insurance covers it. This is a hardship, and unfortunate, but it's hyperbolic to say that this makes abortions unavailable.
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ema
December 19, 2009 10:07 PM in reply to jkenney
Except up to now the government hasn't forced people to spend thousands of dollars/year to buy inadequate insurance. In theory, people will be able to come up with the extra funds needed for abortion. In practice, it's anybody's guess. [It must be fun to be a politician playing guessing games with people's morbidity and mortality, no?]
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barbara63
December 19, 2009 8:56 PM
Women's healthcare is about so much more than abortion. I actually think the Senate compromise is reasonable.
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ema
December 19, 2009 9:18 PM in reply to barbara63
You do realize that pregnancy termination is one of the most common surgical procedures performed in this country, significantly more common than appendectomy, cholecystectomy, hysterectomy, prostatectomy, and quite a few other procedures, yes?
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barbara63
December 19, 2009 9:30 PM in reply to ema
And don't uninsured women who have abortions have to pay for them out-of-pocket right now? As others have pointed out, a woman could probably come up with the money she would need to pay for an abortion, but she would have a very hard time self-financing many other medical procedures and treatments.
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ema
December 19, 2009 10:16 PM in reply to barbara63
And don't uninsured women who have abortions have to pay for them out-of-pocket right now?
Yes, absolutely. And what happens once the government forces them to spend their funds on purchasing inadequate insurance? Will they have enough left over to afford to pay out-of-pocket?
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barbara63
December 19, 2009 11:35 PM in reply to ema
I think many uninsured women will be eligible for subsidies, so they may not have to pay very much for their coverage after all. As a result, they will have insurance to pay for procedures such as hysterectomies and appendectomies, as well as many other non-elective procedures.
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ema
December 20, 2009 12:22 AM in reply to barbara63
And when they cannot pay for that elective abortion that significantly reduces their morbidity and mortality, or, for that matter, for a therapeutic one, the fact that they have insurance coverage for, you know, many other procedures deemed non-icky by politicians, the Catholic Conference of Bishops, and assorted strangers will serve their health quite well.
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barbara63
December 20, 2009 1:03 AM in reply to ema
We are back at square one, ema. Today, an uninsured women has to pay for an abortion herself. Apparently, that will not change with this HCR bill, but at least she will be covered for many other conditions. BTW, thank you for engaging me on this issue. You make very good points.
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CVille Dem
December 20, 2009 8:00 AM in reply to barbara63
Maybe newly insured women will get gyn care and birth control pills paid for by their insurance. With better health care available, I'm hoping the need for abortions will decrease.
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readytoblowagasket
December 20, 2009 1:04 PM in reply to CVille Dem
Health insurance does not equal HEALTH CARE!
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AJM
December 20, 2009 8:55 AM in reply to barbara63
At this point men and women are treated equally -- if equally poorly -- uninsured patients have to pay out of pocket. After this passes women are second class citizens -- all of men's procedures will be covered but women by law will have to spend extra funds to get theirs covered. If this law had said that blacks had to get a rider to have sickle cell anemia covered, there is no one in Congress who would have voted for it but because it is unfair to women there is no problem!
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bluebell
December 20, 2009 11:36 AM in reply to AJM
With some awe I read the the posts on this thread and their utter contempt for women. "We'll fix it later", ""let the courts fix it".
Hmm, sounds a lot to me like why women need abortions in the first place! They get abandoned by men who figure it is anyone elses' problem but their own.
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barbara63
December 20, 2009 11:42 AM in reply to AJM
I do not agree that the HCR bill makes women into second-class citizens, but, even if it does, currently uninsured women will have access to medical care for dire conditions such as cancer and heart disease through this bill, though they will still have to self-finance most abortion procedures - much as they do today.
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bluebell
December 20, 2009 12:08 PM in reply to barbara63
I know a woman who is right now in a hospital waiting for a kidney tranplant due entirely to pregnancy complications which nearly killed her and may yet do so. You are trivializing the reproductive health care needs of women and putting a whole new slant on the "choice" issue. You buy insurance or are forced into buying insurance because you cannot predict what ills may befall you. You don't know why you might need an abortion. You don't know if the bureaucrats cowering under the combined intimidation of the Democratic and Republican parties will deny the abortion you need due to life-threatening complications. You don't know. You don't have any power. You don't have any say. You are just the last chip to be thrown into the pile in a corrupt game.
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susanthe
December 20, 2009 9:44 PM in reply to barbara63
Some do. Some women have access to insurance plans that cover abortions. Do you have to pay for your penis pills out of pocket?
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Maritza
December 19, 2009 8:58 PM
Again I doubt it is unconstitutional. The Supreme court has allowed various states to write their own laws on various things including whether or not parents should be notified if a minor wants an abortion.
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GayIthacan
December 19, 2009 9:09 PM in reply to Maritza
What does parental notification have to do with abortion?
As long as no parental APPROVAL is required (the child retaining the right to their own reproductive health), notification does not interfere with that.
Just sayin......... :D
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mcc
December 19, 2009 9:29 PM in reply to Maritza
I may just start posting this wikipedia quote in every thread.
This actually might be unconstitutional! So far separate federal courts struck down such a clause in RI, but upheld it in MO. There has not been a clarifying decision. However given that state is existing practice and as far as I can tell there are no ongoing efforts to have it declared unconstitutional. The bill does not alter the status quo or give states any right they did not technically have already.
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AJM
December 20, 2009 12:37 PM in reply to mcc
So now there is a national okay for these states and that doesn't change anything in your view?
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mcc
December 20, 2009 1:26 PM in reply to AJM
Well, no, it doesn't. Because currently they have the ability to ban abortion coverage in private insurance, and afterward they will have the ability to ban abortion coverage in private insurance, and the federal government saying "it's ok" doesn't grant them the ability any more than they had it before. Before you could challenge the constitutionality of banning abortion coverage in the exchange you'd have to challenge the constitutionality of banning abortion coverage in the open market, and if you succeeded in that it doesn't seem possible it could still be constitutional to exercise the Senate amendment and ban abortion within the exchange.
I guess, technically, this might grant the right to Rhode Island (Rhode Island only) to ban some abortion coverage. But I doubt it because the previous precedent where RI was disallowed from banning abortion should still be binding, so again probably this prohibits Rhode Island from exercising the Senate amendment.
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xargaw
December 19, 2009 10:18 PM
The Democratic Party is doing everything in their power to drive real Democrats out of the Party. Maybe Democratic Congress people and Senators are whimpy weasals that will fold at the slightest provacation, but Democratic voters are not and will flee. There comes a point when a Democrat must maintain some self respect and that may well mean ceasing to be a Democrat.
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mk3872
December 20, 2009 12:18 AM in reply to xargaw
A "real" Democrat, eh? Sort of like a "purity" test for "real" Republicans?
Please ... take your "real" Democrat junk and stick you-know-where.
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destor23
December 20, 2009 11:35 AM in reply to mk3872
Yeah! We stand for nothing and we're sticking to it!
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David Dunham
December 19, 2009 11:06 PM
The contention that the Nelson compromise is unconstitutional is totally specious. The US Supreme Court has very clearly held that there is NO constitutional right that a woman has for government to make funding available to pay for an abortion. In addition, since the 1940s, states have had the right under the McCarran-Ferguson Act to regulate insurance, and the US Supreme Court has upheld that Act and the right of states to establish different rules regulating insurance. Furthermore, there is no way the present Supreme Court will extend Roe v. Wade and its progeny any further. If anything, the conservative majority on the Court will role abortion "rights" back further. In short, it is completely constitutional for Congress to give individual states the authority to determine whether insurance policies sold within those states may cover abortion or not. Any arguments to the contrary are a crock.
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Indie Pro
December 19, 2009 11:07 PM
Remember when the democratic party defended womens rights?
Now it is merely something to trade away to gain the industry and a party a win.
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David Dunham
December 19, 2009 11:17 PM
Yes, getting health care reform passed and extending coverage to millions of poor people outweigh any claim of a 'right' to an insurance policy that covers abortion, which putative right does not exist under the federal constitution. With that said, there is and can currently be no prohibition on a woman herself paying for an abortion or on someone else paying for her to get one.
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bluebell
December 20, 2009 3:03 PM in reply to David Dunham
Poor people? I haven't heard about poor people since welfare reform ended poverty.
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ema
December 19, 2009 11:54 PM
Yes, getting health care reform passed and extending coverage to millions of poor people outweigh any claim of a 'right' to an insurance policy that covers abortion, which putative right does not exist under the federal constitution.
So women are not people and there exists an obligation under the federal constitution to pay for inadequate health insurance?
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barbara63
December 19, 2009 11:55 PM
When a woman finds out she has breast cancer, I don't think she cares much if her insurance doesn't cover abortion.
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cheviteau
December 20, 2009 12:24 AM in reply to barbara63
When a woman learns she has breast cancer, just might be the time she would desperately want and need an abortion.
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barbara63
December 20, 2009 12:52 AM in reply to cheviteau
If an uninsured woman finds herself in this condition today, she would have to pay for both the abortion and the cancer treatment herself. At least with the HCR bill, she would have her cancer treatment covered. I'm pretty sure that would be a much larger bill.
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ema
December 20, 2009 12:38 AM in reply to barbara63
Yes, because as a female patient you should only be able to receive adequate medical care for one condition at the expense of another.
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stevelaudig
December 20, 2009 7:46 AM
The Senate rejoins the separate but [un]equal club in enforcing the Vatican's political desires.
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readytoblowagasket
December 20, 2009 1:48 PM
Is the direct involvement by the Catholic Bishops in writing legislation for both the House and Senate "unconstitutional"? Of course it is!
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readytoblowagasket
December 20, 2009 1:58 PM in reply to readytoblowagasket
Does someone need to be a constitutional law professor to figure this out? Of course not!
Go Catholic Bishops!
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Susan Cass
December 21, 2009 5:11 AM
What amazes me is that some of these people actually think that by stopping funding for them, they will stop the abortions. I'm old enough to remember when abortion what not legal. Even when they were illegal there were MILLIONS done every year. Some were self induced (the coat hanger-a girl's best friend!), some were performed by quacks in back rooms who didn't even bother to keep their instruments clean, and very rarely you found a real doctor with a conscience who would help.
Anyone ever seen the results of a botched abortion? I have. Not pretty!
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stevelaudig
December 21, 2009 5:44 AM
To the extent that the bill creates "rights" that exist in one state that do not exist in another my drive by opinion is that there may be equal protection flaws. It has the smell of "separate but equal" arising out of state-by-state options. Women are more equal in some states, less equal in others. But I have yet to read the bill. It would be like investigating a car crash while the vehicles are still moving.
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TMO
December 21, 2009 8:56 AM
It seems to me that the basic premise of all of the compromises on abortion is unconstitutional, the basic premise being that the use of public funds can prevent you from accessing legal medical procedures. This argument reverses the traditional argument that says the exact opposite and blurs the line between separation of church and state. Public funding is supposed to guarantee access to services based on constitutional rights - like the right to privacy. What's next? Insurance plans receiving public funds will not be allowed to cover contraception? Schools that receive public funds will not be allowed to teach evolution? All county courthouses will be banned from marrying homosexuals?
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Tosh
June 6, 2010 11:05 PM
How do you propose to restore women to full citizenship when the abortion provisions in this bill once passed can only be removed if you can overcome a filibuster?
Obama was quite willing to sacrifice the rights of women for this bad bill.
And he keeps lying about it. The claim is that if we don't do it now there will be no chance to do it right later and at the same time the claim is that we can fix any of the problems in it later.
The pressures which lead to the bill making it this far would still exist after 2010 but any attempt to fix problems in the bill require the ability to over come a filibuster.
Kill the bill.
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