My reflections and musings on the struggle to leave a Christ-shaped impression on the world of law and public policy.


Thursday, April 7, 2011

A Proposal to Raise the Bar

I think our standards are way too low. Many are claiming "victory" after the passage of a Virginia pro-life amendment that opts out of funding Obamacare insurance coverage for abortions EXCEPT where the mother's life is in danger or where the child was conceived through an "alleged" rape or incest. I would call it a partial victory. Is a human being created in the image of God any less of a human being because of the mother's medical condition or the circumstances of its conception? With regard to the "life of the mother" exception, keep in mind that we are talking about taxpayer funding for the intentional killing of the child. Medical procedures intended to merely save the mother's life (but not performed for the purpose of killing the child) would not be considered "abortion" even if the child died as a result of the procedure. They would still be covered even without this exception. I've been digging around a little bit, trying to figure out if there is any legal reason behind the exception to the abortion opt-out. The exception tracks the language of the federal Hyde Amendment, but why aren't the states at least trying for a complete opt-out that does not include the exceptions? The U.S. Supreme Court has held that the Constitution does not require the government to fund the exercise of a woman's "right to choose." Here is the language from Harris v. McRae: "Although the liberty protected by the Due Process Clause affords protection against unwarranted government interference with freedom of choice in the context of certain personal decisions, it does not confer an entitlement to such funds as may be necessary to realize all the advantages of that freedom. To hold otherwise would mark a drastic change in our understanding of the Constitution. It cannot be that because government may not prohibit the use of contraceptives, ... or prevent parents from sending their child to a private school, ... government, therefore, has an affirmative constitutional obligation to ensure that all persons have the financial resources to obtain contraceptives or send their children to private schools. To translate the limitation on governmental power implicit in the Due Process Clause into an affirmative funding obligation would require Congress to subsidize the medically necessary abortion of an indigent woman even if Congress had not enacted a Medicaid program to subsidize other medically necessary services. Nothing in the Due Process Clause supports such an extraordinary result. Whether freedom of choice that is constitutionally protected warrants federal subsidization is a question for Congress to answer, not a matter of constitutional entitlement." By this logic, the Constitution does not require state governments to fund abortion even where the mother's life is in danger or the child was conceived through rape or incest. We're not even talking about outlawing abortions under these circumstances--we're only talking about not forcing taxpayers to fund them. If the decision to include the exceptions in Virginia's opt-out was politically based, I would like to know if anyone even tried to push for a stronger opt-out, or did we just assume that it wasn't feasible? Who is steering this ship? I know that the "best" can sometimes by the enemy of the "good," but there are other times when the "good" is just plain old "settling." Let's raise the bar, Virginia.