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November 13, 2009

Idiocy: Law Professor Argues Stupak Amendment Is Unconstitutional Because, Wait For It, Religious Groups Support It And Some Other Goofy Reasons

You can read a lot of dumb things on the internet (hell, I've written some of them) but this is surely Hall of Fame level idiocy.

According to law professor Marci Hamilton, the Stupak Amendment banning abortion funding in the health care bill, is unconstitutional on several grounds.

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.

As I've pointed out several times, I'm not a lawyer but I'm pretty sure that argument would have been laughed out of an undergraduate ConLaw class.

Its always amusing and a little sad when liberals are more vested in protecting fake, made up rights than they are with real ones. For the record the words "separation of church and state" don't actually appear in the Constitution.

The words that do appear in the 1st Amendment are,

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech,or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Holding a law unconstitutional for no reason other than it is supported by people of religious faith would seem to run afoul of those bolded clauses.

Do they not teach those parts at Cardozo School of Law?

The professor surely does not think that one forfeits one's rights to "free speech" or "to petition the Government for a redress of grievances" simply because they elect to exercise their right to worship.

Or does she?

As John Pitney Jr. points out at The Corner, where I found this article, this argument (such as it is) would mean that the Civil Rights legislation of the 60's was unconstitutional on the same grounds.

Not satisfied with that excursion into the strange, Hamilton doubles down by arguing 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.

I don't want to really go into a whole birds and the bees thing here but let me just point out one small fact...only women can have babies.

The left always wants to make this connection between male ailments and abortion. Here's the thing, pregnancy, in and of itself, is not a disease that needs to be treated or cured, such as say Erectile Dysfunction or Prostate Cancer.

In fact, pregnancy is quite the natural condition , even a necessary one for the continued existence of the human race. That's not to say there aren't pregnancy related ailments and conditions which need treatment, there are. Stupak does not outlaw insurance coverage for them.

This is an apples to orange argument and a pretty disingenuous one at that.

Hamilton's final argument is that Supak 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.

Just because something is constitutionally protected, as abortion is at the moment, doesn't mean the federal government has to subsidize an individual's exercise of that right.

There are numerous procedures which are constitutionally protected but won't be covered by insurance (public or private) when they are strictly elective. Rhinoplasty comes to mind.

No one denies that there are times when an abortion is a therapeutic and necessary procedure. Guess what? Those cases are not impacted by the Stupak Amendment (read it here)

Arguments can and have been made for abortion on demand but there's no reason, certainly no constitutional reason, to treat it differently from any other elective procedure (as far as insurance goes, moral arguments are obviously a different matter).

The professor does make one good point.

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.

Replace "religious lobbyists" with government bureaucrats and pandering politicians of all sorts and you see the danger government health care reform. While she only seems to be worried about abortion, Pelosi Care will open up every aspect of our lives to government regulation and interference.

Don't eat the right things? The government could step in.

Don't exercise enough or take part in activities that lead to injury and cost too much in health care? The government could step in.

And on and on and on.

Still though, If objection to restrictions on abortions gets more people against Pelosi Care, I say welcome aboard.

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posted by DrewM. at 02:40 PM

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