In defense of the sanctimonious women's studies set || First feminist blog on the internet

Read, think, then talk.

Jill

Can someone please send Saxby Chambliss a copy of Roe v. Wade? Because it does not say what he thinks it says.

The Senate healthcare bill’s language on abortion “sets up a Supreme Court challenge,” one senator warned Saturday.

Sen. Saxby Chambliss (R-Ga.) asserted that the compromise on abortion contained within the bill, which would seek to segregate federal funds from subsidizing health plans covering abortion, is unconstitutional.

“What this provision does that Sen. Nelson negotiated sets up a Supreme Court challenge. Roe v. Wade’s pretty clear on federal funding for abortion,” Chambliss said at a Capitol Hill press conference early this afternoon.

The compromise was set up to win the vote of Sen. Ben Nelson (D-Neb.), who had previously threatened to vote against the bill unless he was satisfied the bill wouldn’t provide federal support for abortion. Nelson announced on Saturday morning that he’d reached an agreement to his satisfaction, and would vote for the bill.

Pro-life groups, including the U.S. Conference of Catholic Bishops, have rejected the compromise language.

“And now, you’re seeing that law that was laid down years ago in Roe v. Wade thrown up in the air. It’s pretty obvious that votes have been bought,” said Chambliss, who didn’t signal whether or not he would lead a legal challenge to the bill.

Doesn’t this man have a staff to vet facts before he gives press conferences?

Roe v. Wade doesn’t talk about federal financing for abortion. And no Supreme Court case says that federal financing for abortion is unconstitutional. What the Court has said is that it’s constitutional for the government to limit federal (or state) funding of abortion through Medicaid (or other government programs). That is very, very different from saying that the government cannot fund abortion.

Of course, under the health care bill the government isn’t going to fund abortion, and is even going out of its way to limit private insurance companies’ funding of abortion. So not only is Chambliss ignorant, but he’s using his ignorance to pick a fight about a total non-issue. Gotta love Congress.

9 thoughts on Read, think, then talk.

  3. Correct me if I’m wrong, but Saxby didn’t specifically say “federal financing for abortion is unconstitutional” just that the law is clear on federal financing, which could mean if govt provides for healthcare it must also provide for abortions since not doing so would be tantamount to violating the equal protection clause (presumably because only women get abortions) of the 14th amendment, the very amendment where the right to privacy and thus the right to abortion is found.

    one can’t imagine he believes this argument, but he could be being machiavellian here. after all, i assume thats what Reps. Diana DeGette (D-CO) and Louise Slaughter (D-NY) mean when they doubt the bills constitutionality. remember, conservatives are trying to get progressives to do the work they don’t have the power alone to do. politics, strange bedfellows.

  4. If you haven’t actually read Roe v. Wade (and very few people have,) or if you have read it but didn’t understand it in context (limiting the pool even more) then it can mean whatever you want it to mean. It’s magic!

  5. which could mean if govt provides for healthcare it must also provide for abortions

    Jill noted that the Supreme Court has already ruled on this argument and dismissed it (in Harris v McRae). There really is nothing reasonable that can be pulled out of what Chambliss said.

  6. “Jill noted that the Supreme Court has already ruled on this argument and dismissed it (in Harris v McRae). There really is nothing reasonable that can be pulled out of what Chambliss said”

    Well the reps noted in my first comment as well as the pro-choice caucus are also raising constitutional issues. either their pinning their hopes on overturning Harris (its a living doc in their view after all) or perhaps the language in the compromise doesn’t take into consideration abortion where the heath of the mother is at stake…in which case they could have a serious equal protection argument, as the harris decision is restricted to “non-therapeutic” abortions.

  7. The only situation where I could realistically see a serious constitutional argument is simple to describe, though complex in practice:

    First, you would need to have a health insurance plan which provided for emergent and preventative care for a variety of reasons.

    Second, you would need to have the carve-out of an exception for abortion. It doesn’t matter from a legal perspective if they exclude payments for “voluntary” abortion for purposes of BC (that, as we know, does not need to be funded.) Instead, it would need to specifically exclude abortion even when medically necessary. Perhaps it would even exclude abortion when it was an emergency.

    The question then becomes whether that could arguably fail the rational basis test. That test grants huge discretion to the government but it is not an absolute bar.

    I have a feeling that denying funds for emergency abortion but permitting them for everything else would fail the rational basis test. It certainly would have failed in the old court. I am not current enough in that area of the law to

    There are also tactical issues. If you really think that the no-abortion is unconstitutional, then what? It may be the case that it is better to gamble on the courts:

    You need to ask yourselves whether you think you can win at the USSC. That’s never guaranteed but smarter people than i can guess the odds.

    then, you also need to ask what you think you can win at the USSC. Can you get a complete overturn of the abortion ban? An overturn only for emergencies? How is the language written? This is where the benefit comes in; it is possible that the court would have to grant GREATER coverage than is currently being proposed by Congress or that might be the result of a Congressional compromise.

    Then, you need to predict the Congressional response if you win at the court; will they leave the decision alone (good for you, if you win) or rewrite the statute to match the smaller limits of the decision?

    In other words:

    If you believe that a lack of funding for emergency abortions is completely and clearly unconstitutional and will be held as such by the Supremes, AND IF you believe that the only thing Copngress will approve is funding for emergencies (as opposed to medically necessary, non-emergency, abortions) THEN you would actually be well justified in lobbying for no funding at ALL, in the hopes of getting a better result from the Court.

    that’s a serious and dangerous gamble though.

  8. @Manju, it says right in the article that Chambliss said “Roe v. Wade’s pretty clear on federal funding for abortion.” That’s pretty clearly about Roe, which says nothing about federal funding for abortion. Not only is he bringing up an issue that has already been settled by both Congress and the court, he’s also just wrong.

  9. Sailorman, theres another, more unsettling possibility here. The reality of any legislation is that it’s life span is only as good as the congress that passed it. If one wanted to go after reproductive rights in a meaningful way, this bill makes a dishonest, obstructionist strategy relatively easy.

    First you agitate for a complete ban, knowing that the Dems will later attempt to buy your vote with some kind of compromise. Any restriction is a good thing from the anti-funding point of view because it will both limit funding for abortion immediately and it will all but guarantee that both sides will mount legal challenges which will take time to move through the courts and likely involve temporary injunctions that will undermine abortion funding in the short term.

    One these challenges get to the SCOTUS, one of three things will happen: the courts will decide that the underlying law is constitutional (you’ve won some funding restriction), the courts will decide that funding of abortions is unconstitutional (you’ve won a stronger restriction), or the courts will decide that a funding restriction is unconstitutional which necessitates the underlying bill be changed. At this point you have more chances for playing down the clock through filibuster or other procedural moves as well as more chances to attempt to demand concessions in exchange for votes. More importantly, it will be harder to alter this bill than to pass it because of the section requiring a super majority for any amendments or repeals.

    Why play for time like that? Right now the Dems look like they’re in trouble in the midterms elections and no one knows what will happen between now and 2012. The strategy the right is using now is to find ways to cripple this bill and advance their own agenda through concessions until they’re in a more politically advantageous position. Moreover, the longer they keep health care reform from becoming settled the weaker the Dems look, making mere obstructionism a good political gamble. A shitty bill demotivates the Dem’s base, makes them look ineffectual to swing voters, and allows local Senators and Reps to say that they were in favor of the bill but had to hold out because of whatever issue the local rubes objected to.

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