The Irony of the Stupak Amendment
By Brad Porter | Related entries in NewsHello all. A recent move and career change means I’ve not been the most prolific of bloggers lately, but hopefully I’ll have more time, now that I’m settled, to pop in now and again. For those that don’t remember me, I run a right-of-centre trans-Atlantic group blog called The Crossed Pond. I’m a RiNO, for the sake of succinctness.
In any event, one of the most talked about aspects of the House’s passage of the health care bill on Saturday was the last minute addition of a rather significant concession. Namely, a number of pro-life Democrats and a few moderate Republicans have been worried about Tea Party rhetoric about “ObamaCare Funding Abortion!” and the like, and so they demanded the inclusion of an amendment offered by Rep. Bart Stupak (D-Mich) that reads simply:
(a) IN GENERAL.–No funds authorized or appropriated by this Act (or any amendment made by this Act) may be used to pay for any abortion or to cover any part of the costs of any health plan that includes coverage of abortion, except in the case where a woman suffers from a physical disorder, physical injury, or physical illness that would, as certified by a physician, place the woman in danger of death unless an abortion is performed, including a life-endangering physical condition caused by or arising from the pregnancy itself, or unless the pregnancy is the result of an act of pregnancy or incest.
Because the Democrats did not have enough votes to pass the bill without this small cadre of pro-lifers, the amendment was begrudgingly accepted, and we got our health care bill. Only now, of course, the people who fall into the public option safety net (i.e. the poor) will not be covered for elective abortions, as they would otherwise be in about 2/3s or private insurance plans and in some state Medicaid programs (though Medicaid federally is governed by a similar amendment, some states have bypassed that). Meaning, those most unable to care for an unwanted child and most likely to fall into that position will have to go out of pocket if they desire the procedure. And many fear that private insurers, now competing with the public option, will also have incentive to drop coverage of abortion.
Now presumably the people insured through the public option are currently uninsured, so one could argue that, as far as abortion is concerned, this is just the status quo. It is unclear how all of this would iron out in practice, as it is unclear whether the amendment even survives the Senate. Pro-choice progressives are livid, and with good reason. It’s bad law, if you ask me. Abortion is a legal medical procedure, and whether or not it is covered should be decided on a contextual, ideally case-by-case basis, a question to be settled between individual doctors, patients, and insurance boards (or whoever ultimately administers the public option), rather than a dozen or so Blue Dog Democrats in 2009. It should, in short, be decided on medical rather than political grounds. Liberals are right to cry foul in that regard.
But here’s the irony: the central argument against the public option in the first place is precisely what is being illustrated by the Stupak amendment. Namely, people will lose coverage (as will happen if private insurers drop abortion coverage, and in the case of those who go from private insurance or Medicaid in certain cases to the public option) and freedom of choice. You put medical decisions in the hands of bureaucrats and politicians rather than doctors and patients.
Welcome to socialism.
I don’t mean to exaggerate the House and Senate bills. They don’t nationalize medicine or set up a single-payer system. As socialism goes, they’re modest. But they do mandate, standardize, and subsidize health insurance. They mix public with private. And when you do that, you invite public-sector problems into matters that used to be nobody’s business.
One of these problems is that people don’t like their tax money being used for procedures that offend them. You may think that’s stupid. You may point out that your tax money is used for wars you don’t like. But you don’t have two or three dozen swing votes in the House. Pro-life Democrats do. They don’t have the clout to ban abortion, but they have the clout to keep tax money from paying for it.
Until health care reform came along, this wasn’t your problem. It was a problem for women who depended on public programs like Medicaid. But you wanted a better world. You wanted health insurance for everyone, and you wanted the government to help pay for it. Congratulations. You’ve brought the tax moralists into your life.
That goes both ways of course. It’s amazing to me that the same people who have been mewling about the loss of freedom that will occur under this health care plan are suddenly a-okay with taking away that freedom in the case of medical procedures that happens to offend them. And it’s not just abortion—those same social conservatives have pushed for the inclusion of language that may cover Christian Science prayer treatments. So, as has often been the case with Republican defenders-of-the-markets, freedom of choice is fine and dandy as long as it is, according to their morals, the right choice.
But liberals too need to understand that, when you put decisions like what kind of medical care is insured under the purview of a central, political authority, you will get central, political decisions. I have a number of hardcore progressives who comment at my blog, and one of the things that always leaves me befuddled is what often seems to be the central underpinning of their political worldview: namely, to centralize authority and instill regulations because people cannot be trusted. The inherent contradiction, of course, is the people who will be creating, manning, and administering said central authority are, of course, people too, prone to the same mistakes, errors in judgments, and corruptions as anyone else (only with more incentive to do so, because they have more power to parlay with). Or, to put that another way, the sort of Democrats who believe everything would be working just fine if the government were only staffed by 100% progressive liberals with everybody’s best interests at heart (good luck with that guys). The “representative democracy is great when everybody agrees with me” approach to governance. In this case, Democrats love the idea of a government-run health care program, because it never seems to occur to them that this same government-run health care program will also be run by conservatives—who make, on average, about half of government, and probably always will. So literally the first decision made by the new liberal health care paradigm is a social conservative one. News flash: that’s not a problem with social conservatism, it’s a problem with the mechanism that allows social conservatives to push their agenda on private citizens in an area they were previously kept out of because it was a market issue.
Salaten is right. The most fundamental criticism of government-run health care is perfectly illustrated in this case. Liberals have (or soon will) the central government-run health care system they wanted, and suddenly cry foul when that system takes a freedom away from individuals who had it in the market. And conservatives want to keep government out of health care—but by the way, now that we’re in it, can we outlaw abortion?
I’m against the amendment, and more-or-less for this health care reform, but in my view, both sides are getting what they deserve on this one.
Too bad it’s the public option patients who will suffer for it.
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November 9th, 2009 at 2:48 pm
Brad, the simple truth that you’re attempting to obscure behind a blizzard of words is that a great many people in this country–a clear majority by some polls–beileve that abortion is murder. You can not demand that those people make themselves accomplices in mass murder. It’s that simple.
Nor is the false equivalence of your penultmiate full paragraph (“liberals have (or soon will) the central government-run health care system they wanted, and suddenly cry foul when that system takes a freedom away from individuals who had it in the market. And conservatives want to keep government out of health care—but by the way, now that we’re in it, can we outlaw abortion?”) convincing. The description of the liberal system is correct. The suggestion that resisting public funding can be equated with banning abortion is absolutely false, however, and was rejected by the Supreme Court not long after Roe in Harris v. McRae.
November 9th, 2009 at 3:03 pm
[...] This post was mentioned on Twitter by Justin Gardner and Jim Clifton, Donklephant. Donklephant said: DONKLEPHANT: The Irony of the Stupak Amendment http://ow.ly/160uMF [...]
November 9th, 2009 at 4:02 pm
Simon, the simple truth is tax dollars frequently contribute to unarguably-fully-human deaths. My tax dollars are used for many things I find reprehensible. I still don’t see why we have to get between a doctor and patient for any voluntary and legal procedure. This is exactly what Republicans said Democrats will do–dictate who can get what. Will birth control come under fire next? Some fundamentalists think that’s murder too.
November 9th, 2009 at 4:07 pm
Uhhh, yes. You can. And indeed our government does it all the time. On capital punishment, on unjust wars—I believe all those things are the government engaged in murder on some level (and you can expand that in all kinds of directions, from the Drug War to medical care to poverty, etc.). Hell, government action is CONSTANTLY killing people. You try not paying your taxes because you’re anti-death penalty. See how far that gets you, and then come back and talk to me about not being obligated to be an accomplice to murder.
In a constitutional democracy, the Law is King. The law, not you, is the arbiter of what is murder and what is not. And in the case of America, abortion is settled law. It is not, according to the United States government and legal system, murder. It is a legal medical procedure. I am not saying that there is some inherent right to abortion being included in the health care bill—it is well within Congress’s bounds to pass this amendment. I just think it’s a bad amendment, and what it does is it takes a medical question out of the hands of doctors and patients and insurers and puts it in the hands of a handful of Congressmen—which is exactly the objection that most conservatives and Tea Partyists have of government-run health care. Simple as that. It is taking a medical and actuarial question and providing for it a political answer.
Finally, I am not equating this with banning abortion. But I am drawing a clear line between both conservative objections to public health care, and liberal objections of social conservative meddlings, and both side enabling the mechanisms through which their objections are made practice. Conservatives, in this case, are ensuring federal meddling in medical care and a nationalized bureaucracy taking away freedoms of patients, and liberals are ensuring an avenue by which congressmen and special interests have the ability to legislate morality and inject political controversy right at the point of interface between you and your doctor. Both sides, in that respect, are ensuring their own fears are realized. And neither side seems particularly self-aware of that fact.
November 9th, 2009 at 4:47 pm
No, Brad, you can not. Specious comparison to other incmoparable areas of policy get you nowhere. It is bad enough that the government has sanctioned mass slaughter for nearly forty years; it is utterly unconscionable for it to ask the people on who that so-called right was foisted to pay for it. That was obvious to the framers of the Hyde Amendment; it is obvious to a clear majority of the public today. If you don’t see the difference, you should consider that it may be you rather than everyone else who is wrong. We might glibly recast that constant refrain of the “pro-choice” movement: If you support abortion, fine; it is (for now) legal, so have an abortion. But pay for it yourself. Don’t force the rest of us to be unwilling conspirators in your crime.
November 9th, 2009 at 5:02 pm
Jon Says:
The comparison is false. The Republican criticism of the Democratic healthcare plan that you have in mind is the objection that it will lead to government deciding which treatments are available–not which treatments it will pay for. The Stupak amendment does not ban abortion, and no one has criticized the unamended healthcare bill has not been its failure to ban abortion. The issue is whether the bill should fund abortion: can you force a public that believes abortion to be murder to pay for abortions? The answer is, clearly, “no.” The restraint is not constitutional, but moral; even if the Constitution acted as a meaningful restraint on the Democrats, which it does not, observance of its limits would not exhaust their obligations in crafting legislation. (Consider, by way of analogy, the observation that it does not derogate from the authority of canon law to note that it is by no means intended to be an exhaustive summary of rights and obligations; it establishes rules that must be followed, but does not supplant higher laws that ought to be followed.)
Whatever criticisms can be aimed at the GOP’s handling of this bill, your suggestion that their position does in micro what they have complained the bill will do in macro rests on misstatements of the objections and the effect of the amendment.
November 9th, 2009 at 5:14 pm
That’s not honest. I haven’t heard commentators say that open heart surgeries will be banned, just that their grandfather won’t have it paid for because he’s old. The ol’ bureaucrat between you and your doctor meme.
As for the rest, you can clearly force people to pay for things that they think are morally wrong. I think the death penalty is wrong and yet pay for it. I think the wars we are in now are morally wrong and pay dearly for it.
In the eyes of US law abortion is nor immoral or illegal and that at the end of the day is all that matters.
November 9th, 2009 at 6:51 pm
Heh. Abortion is legal. And currently, constitutionally protected according to the Supreme court. Has been for decades, If congress had the balls, (and the votes!!) they could foist all they wanted.
The legal civil recourses for folks who disagree are currently 1)amending the constitution and 2) getting SCOTUS to overturn Roe v. Wade. While many Americans express serious reservations about abortion, the portion of the electorate that supports overturning Roe is to the best of my knowledge substantially less than half.
I’m a bit agnostic on the notion of moral constraints upon congress, as opposed to legal, constitutional, etc. It’s an interesting idea, but it’s bound to rest in the eyes of the beholder. IMO, this amendment bows to no more than simple mathematics. The amendment was necessary in order to prevent the healthcare bill from becoming some sort of abortion referendum. I suspect that there are plenty of folks on both the left and the right who are royally pissed that congress made this move, but its the smart one.
November 9th, 2009 at 7:01 pm
Abortion is such a waste of time issue, it impacts so few people, but we spend so much time on it.
November 9th, 2009 at 7:32 pm
Jon, you can speak to the accuracy of my point, but not to its veracity. It may be wrong (although it is not); it was certainly honest. The relevant argument from the right is that the so-called “public option” will ultimately drive other participants from the market leaving government in de facto control of healthcare resource allocation decisions. (There are, of course, other arguments against Obamacare, such as the compatability of the proram with federalism and subsidiarity, its likelihood to embroil government in needless controversy and decisions far beyond its institutional competence, and so forth, but we needn’t treat them here.) That was the sum and substance of Palin’s “death panel” soundbite: healthcare is a scarce resource, so its allocation is inherently a question of rationing; the question is how it will be rationed, and government control over that process is a worrying prospect.
As to forcing you to pay for the death penalty: actually, I don’t think that you should be forced to pay for it. I am a big believer in revealed preference. You can see what Tim Geithner and other leading Democrats really believe about fiscal policy, for instance, via their attempts to evade paying taxes. I would like to harness that power. I don’t want to force you to pay for the death penalty, Jon. I don’t think we should force anyone to, and here’s why: People say that they’re for the death penalty, because they don’t pay any price for the claim. If those people had to explicitly opt in to paying for the death penalty by ticking a box on their tax return, however, I promise you that the death penalty would be untenable and abolished “except in cases of absolute necessity … when it would not be possible otherwise to defend society” within one fiscal year.
Now, that having been said, there is a ready difference between the death penalty and the question of asking the public to pay for abortion. And it isn’t just that every poll finds that the death penalty is favored by an even clearer majority than that which thinks abortion is murder. The difference is that law and order—of which penology is an integral part—is a traditional governmental function. No argument can be made that federal government participation in the healthcare market generally, or defraying the costs of murder from the public fisc specifically, has comparably deep roots in anglo-american history. (It should not go unremarked that just because government has not traditionally paid for the murder of the unborn, that matter has not been thought beyond the concern of government: rather, it was handled within the afore-mentioned traditional function of law and order. See, eg, Roe v. Wade, 410 U.S. 113, 174-75 (1973) (Rehnquist, J., dissenting).)
Indeed, one might note that it is precisely when government diverges from its traditional ambit that it is embroiled in these sorts of controversies. The question of whether government should pay for abortion as part of its healthcare market participant role has meaning only if the question of what role government has as a market participant is answered mistakenly. If the correct answer to the antecedent question is given—viz., that government has place acting as a market participant—these tricky questions like pubilc funding of abortion would not arise. There are enough controversies that arise naturally from the exercise of proper governmental functions, without sending government shuffling abroad in search of monsters to provoke.
November 9th, 2009 at 7:44 pm
Chris Says:
The most annoying habit of culture warriors from the left is the habitual denial that they are culture warriors. They decry the right for talking about moral issues and pushing a moral policy agenda, despite being no less committed to their own moral positions and policy agenda than are those they decry on the right. Chris’ comment exemplifies this blithe disingenuity. If we were to take it seriously, it would suggest an amenability to compromise; if one truly believed that abortion “is such a waste of time issue,” why wouldn’t they shrug and say “fine, overrule Roe, ban abortion, now let’s get on with more important stuff”?
Not bloody likely.
Of course, we all know why you won’t do that: because what you really mean is, “defending legal abortion is such a waste of my time, so why can’t the other side just roll over?” Hidden behind the mask of disinterest is a demand for surrender. At least Brad is honest: while he doesn’t make it explicit, he doesn’t exactly camouflage his position as one who is pro-choice and wants the pro-life folks to get lost and get over it. That’s an honest position, albeit not a very attractive one.
November 9th, 2009 at 8:50 pm
Forget trying to reason with Simon, folks. He knows how God and Jesus want America to work.
November 9th, 2009 at 9:29 pm
KK,
To be clear, I am not suggesting that the moral obligations of members of Congress be legally actionable. I don’t believe that natural law is legally actionable (at least generally) unless and until enacted in positive law. Nevertheless, I do believe in “natural law”—let’s not beat around the bush, but rather frankly confess with St. Paul that we mean that law “written not with ink but with the Spirit of the living God, not on tablets of stone but on the tablets of the human heart,” 2 Cor 3:3—and I do believe that the content of positive law should be consistent with it. (N.b., consistent with, which is a loose and forgiving standard given the subject matter of modern legislation. God has no opinion on Sarbanes-Oxley.) The natural correlate of this position is that the legislators who decide the content of positive law must do so with a view to natural law.
I realize that the idea of a restraint that cannot be enforced judicially is simply a foreign concept to many in this day and age (for proof of this, survey the reaction to Hein v. FFRF). Nevertheless, that we cannot go to court to enjoin an act because the legislature acted contrary to natural law, or impeach a President for signing that law, does not relieve them of their obligations. And this is not to say that politicians who fail to heed those obligations will not face reprisals. For the record, while I suggest that the picture is more complex than is sometimes supposed, I am not unsympathetic to the suggestion that should Obamacare pass without the Stupak language, Catholic members of Congress who vote for it might be excommunicated.
On another issue, I must admit to finding the picture painted of the debate by you and Brad a touch stylized. Brad says that “[b]ecause the Democrats did not have enough votes to pass the bill without this small cadre of pro-lifers, the amendment was begrudgingly accepted,” and you harmonize in saying that “[t]he amendment was necessary in order to prevent the healthcare bill from becoming some sort of abortion referendum.” In my mind’s eye, that summons an image of a horse trade where the Democratic leadership accepted the Stupak amendment in return for the votes of the “pro-life” Democrats. (The scare quotes are fair: does anyone seriously believe that when Obamacare returns from conference without the Stupak language, these soi-disant “pro-life Democrats” will vote against it?)
That wasn’t what I thought we saw on C-SPAN. Unless they were play-acting, the point was hard-won. To be sure, the deal may have been sub rosa or tacit, with the leadership shutting out the laity (so to speak), but I’m not sure that’s a credible picture, either. Nancy Pelosi believes hard. All her public statements tell us that she believes in legal abortion and she has an inflated self-regard. I find it hard to believe that she would either be willing to trade abortion or believe that she had to. Yet we must believe one or the other to believe that a deal was cut. I think the more plausible interpretation is that the leadership believed (correctly, as we shall see in act 2) that the blue dogs would cave and that the Stupak amendment would fail, but that the blue dogs managed to prevail on the vote over the best efforts of the leadership.
November 9th, 2009 at 9:53 pm
Now here is a well-spoken point I can agree with. And indeed that’s pretty much what I was saying in my original post in noting the irony. But do recognize the irony is two-fold.
1. You totally get the point about the liberal irony, which you express right there. Liberals want the government to take choice away from people because they believe people, in total, can’t be trusted with that choice. If I want to express that in a way they’ll be less inclined to recoil at: the failures of the market has led to bad health care for the citizenry. So since those assholes who run health insurance companies can’t be trusted because they’re greedy and short-sighted looking out for their own interests, let’s have the GOVERNMENT run health insurance, because if we know anything about people in government, it’s that they aren’t greedy and short-sighted and looking out for their own interests.
The VERY FIRST THING THAT HAPPENS? A bunch of greedy and short-sighted government officials looking out for their own interests decide to inject a political agenda into the medical care of the people they are now charged with insuring.
I hate to say I told you so…
2. But I think you’re just gnashing your teeth rather than admit to the second great irony, which is: you and the people who advocated for this amendment are expressly advocating that the government step in and deny people a freedom they would otherwise have in the market. In essence, that is the quintessential “government bureaucrat taking the decision away from you and your doctor”. By definition that is exactly what you are demanding government do the moment it has the power to. So for as much teeth-gnashing we got from conservatives and moderate Dems about government using health care to disseminate their political agenda and control the choices of the citizenry, what is the VERY FIRST THING that conservatives and moderate Dems demand the government do? Use health care to disseminate their political agenda and control the choices of the citizenry. Of course, it doesn’t count in this case, because you’re right, right? It only counts, I guess, when it’s a political agenda you don’t agree with, right? Right?
Really, you could not have written a better object lesson of the blind spots (or rather inherent contradictions) in the two parties.
November 9th, 2009 at 10:05 pm
Simon- You are someone who writes often on the law. In general, I’m inpressed with your references on the subject. Here I find your views terribly troubling.
What do you say to those who don’t buy into the whole God thing? or those who come to different conclusions than you but do believe in some God? It almost appears that you think you and your conception of what God wants trumps forever any other view.
I have seen you extremely dismissive of anyone taking another view as not grounded in the Actual law. Here you seem to think the law is only there to indicate where it is wrong. (In other words, not in agreement with you)
Is that what you believe?
November 9th, 2009 at 10:45 pm
Dude, Stupak would not have agreed to this if he thought he was just getting a vote. I know Bart Stupak. I work with Bart Stupak. He’s not stupid, and he genuinely believes in pro-life principles. He knew perfectly well that he had pretty much every Republican, and his 40; which makes 218.
Pelosi knew the math as well as Stupak. She wouldn’t have agreed to the vote if she had 218 without Stupak. With this amendment she only got 220 votes, and Cao would have voted no if doing so would have mattered.
There are a couple things it would really behoove pro-life folks to keep in mind. One: Nobody “believes” in abortion the way they believe in a right to life. Pro-choice folks believe abortion is a medical procedure, not murder. Two: in the past second the government spent $80,000 subsidizing abortion. It’;s called the employer tax exemption. If you actually oppose abortion subsidies you should be in favor of something like Wyden-Bennet which dumps that subsidy.
November 9th, 2009 at 10:47 pm
BTW, my comment was directed at Simon.
November 10th, 2009 at 1:01 am
“Heh. Abortion is legal.”
And it is also illegal for abortions to be funded by tax-payer money. The amendment does not do more or less than keep that status quo. It has to do it in a complicated manner because the public-private system that is being proposed is complicated. It’s a little complicated to pour water out of only one side of a bucket.
I think your post makes a good point, Brad, and it’s a unique take on the issue. The amendment is only an issue in the first place because the government wants to get financially involved in private insurance.
November 10th, 2009 at 7:47 am
Yep Simon, here’s me: http://indianarevolt.org/images/CultureWarrior.jpg lol. No simon, I’m pointing to the fact that people will have abortions regardless if they are covered by insurance or not, or if they are legal or not.
http://www.msnbc.msn.com/id/21255186/ <–Abortion rates same whether legal or not
So while everyone huffs and puffs over abortion, either way, it's still going to happen.
November 10th, 2009 at 3:33 pm
Really? What law is this?
November 10th, 2009 at 3:45 pm
If only there was any sort of tangible agreement about what was written on the tablets of the human heart. That there isn’t such agreement is precisely why we have to make real and enforceable laws that don’t rely on the vagaries of the heart.
November 10th, 2009 at 7:42 pm
TW, lately, I haven’t blogged about law nearly so much as I’d like recently. Time pressure. At any rate, I would emphasize two points. First, we have to understand that the tasks of interpreting what the content of the law says, on the one hand, and deciding what the law should say, on the other, are different inquiries. The former is for judges (and, to the extent called on, lawyers and executive branch actors); the latter for legislators. I have my opinion about what the substantive content of law should be, and I’m sure that you do, too. Second, as I hopefully made clear, I think that the content of positive law should be consistent with natural law; that is by no means to say that the former is dictated by the latter. To paraphrase Chesterton, the walls of natural law (no less than those of the Constitution) are walls indeed, but they are the walls of a playground. There are vast swaths of legislative business on which the natural law has little or nothing to say. For instance: Should the antitrust laws be amended to make resale price maintenance illegal? Should regulation of the internet be under the jurisdiction of the FEC or some other agency? Should the Ninth Circuit be split? On these and innumerable other questions, legislators have almost a free hand.
Nick, we will find out if Stupak’s Democrats are “not stupid” and “genuinely believe[] in pro-life principles” when the bill comes back to the House from conference without the Stupak language. When that happens, they will vote yes or no. My money is on their voting yes, which will be a vote for stupidity and against pro-life principles, but I hope to be proved wrong. Principles without the guts to stand on them—even when that means pissing off the leadership—ain’t worth spit. You know Joe Stupak; I don’t, but we shall see.
November 10th, 2009 at 8:09 pm
Partly this will depend on the Senate. It seems like Nelson is going to insist, and if he insists the language will probably be in the Senate bill too. The filibusterers already have 40 votes — 39 Republicans, and Lieberman won’t even support Snowe’s trigger — so the 59-non-Lieberman Dems don’t have much leverage to negotiate.
Since reconciliation is supposed to iron out the differences between the bills, and apparently the abortion language is going to be the same; it’d take massive stones to dump it. And Harry Reid don’t got massive stones.
November 10th, 2009 at 9:04 pm
kranky kritter Says:
I think he’s talking about the Hyde amendment.
Brad:
No we’re not. Or rather, most of us do advocate that, but that is a fight for another day, and the Stupak amendment doesn’t do that. No one’s freedom to obtain an abortion is curtailed by this amendment; they must simply pay it from their own pocket rather than demanding that their pro-life neighbors pay for it. You might as well argue that cigarette taxes constitute the government stepping in to deny people a freedom they would otherwise have in the market. (Not a perfect analogy, of course.)
One possible rejoinder might be that if you can make something prohibitively expensive, you can ban it ni effect if not in form. But that argument misses the mark. To be sure, the power to tax is the power to destroy, M’Culloch v. Maryland, 17 U.S. 316, 431 (1819), and
November 10th, 2009 at 11:12 pm
I agree with Simon that there exists a Natural Law. I also agree with KK about the importance of Human Law. Natural Law may be universal but the Paths to its discovery are many and conflicting. A malleable human law ensuring liberty and justice for all may, in fact, be just the tool we need to come to a “tangible agreement about what [is] written on the tablets of the human heart”.
Anyway.
I believe legal abortion is consistent with Natural Law.
As Chris says here, and I say here, and Tully wraps up nicely here:
Any attempt to prevent abortions with Human Law fails terribly. The same number of unborn people are killed (that’s right JtD, killed) and more already-born people are killed and wounded.
My Path tells me that less suffering and death is more consistent with Natural Law.
Killing is an unfortunate part of our society. Sometimes Human Law allows it to happen because trying to prevent it would be unjust and inhumane (abortion). Sometimes Human Law requires it in order to serve justice (capital punishment). More often Human Law seeks to prevent it. This is how it should be.
November 10th, 2009 at 11:57 pm
Huh, my last paragraph above got really mangled. It should have read:
One possible rejoinder might be that if you can make something prohibitively expensive, you can ban it in effect if not in form. To be sure, the power to tax is the power to destroy, M’Culloch v. Maryland, 17 U.S. 316, 431 (1819), and a law imposing stringent taxes on a constitutionally-protected activity will face close scrutiny: is this an attempt to do indirectly what they can’t do directly? That, however, is a very different case to this one. Congress is not proposing to tax abortion, or to make abortion any more difficult than it is now. It is simply declining to pay the way of those who choose to have one. Those two propositions are night and day different.
November 11th, 2009 at 7:56 am
I like how simon conveniently ignores any facts he can’t come up with an argument against.
November 11th, 2009 at 5:04 pm
This may have so far been shown to be true in some places in the past. Specifically if you’re talking about laws that make abortion illegal. I am unconvinced that this would necessarily translate to the current day in this country.
But even if it does, it leaves aside the possibilities for laws which could prevent abortions not by banning them, but by making birth control more common. For example, what if a law was passed where people on public assistance were reuired to get an implanted contraceptive device, or given an extra $50 a week for voluntarily getting a norplant that made them unable to get pregnant in the first place. I bet that would decrease the number of abortions measurably.
November 11th, 2009 at 5:07 pm
The Hyde amendment?
Acc wiki, “Contrary to popular conception, the Hyde Amendment does not ban all federal funding for abortion. The legislation only bans funds from appropriations for the HHS budget from going to that purpose.”
So, it’s legal to use federal funds for abortions as long as its not via fedl appropriations to the dept of Health and Human Services.
November 11th, 2009 at 7:17 pm
“The Hyde amendment?”
Your right, kranky, I overstated my case. However, as you’ll note in that same wikipedia article, the Hyde amendment has be used as the precedent for subsequent laws. Whenever there is a law that could potentially result in tax-payer funded abortion, there have always been provisions added to it to ensure that it doesn’t happen, in order to maintain the status-quo. Take for example, the fact that coverage for federal employees excludes abortion coverage. That is the same thing that is happening with the Stupak amendment. So two facts still remain:
1) Saying “abortion is legal” does not address the point that never before has tax-payer money funded abortion. Not funding abortion using tax-payers dollars does not conflict with the fact that abortion is legal. It is also legal to purchase firearms, and yet the government doesn’t subsidize them (in fact, in understandably puts restrictions on them, despite the fact that they are a right and they are legal under the constitution.)
2) The amendment seeks only the maintain the status quo, which is that tax-payer money is not used for abortion. It does not attempt to move us in a more pro-life direction as liberals are claiming.
I don’t object to liberals who don’t like this amendment. I can see how it would upset them. What I do object to is liberals who misrepresent the amendment it order to make it appear as if access to abortion is being more heavily restricted than it already is.
November 11th, 2009 at 8:41 pm
Fair enough. I personally haven’t heard anyone suggest that access to abortion is being more heavily restricted by this, but I’ll take your word for it that some have.
My point in mentioning that its legal (and then querying the claim that funding it was illegal) was all related to my contention that Congress could pretty much do what it wanted, IF it wanted do. And as you point out:
Which means that congress makes a choice each time the matter comes up about whether to extend that status quo. There isn’t really any legal constraint that entirely prevents congress from federally funding abortion. If they wanted to do so and had the votes, they could just go ahead and do it. I searched the wiki article for “precedent” and that word wasn’t found. It seems that it’s more of an ongoing understanding that a precedent with legal force.
This is especially interesting to me given that the proposed plan (to the best of what may be dated knowledge) provides at maximum a 90% subsidy for folks at or below 2X poverty level, and then slides back the subsidy as income rises. If folks receive a partial subsidy, what then”? Must everybody who gets any fed’l subsidy be proscribed from getting an abortion as part of their subsidized health coverage? Or if I only get say a 15% subsidy, then can an abortion be 85% covered, or what? Confusing.
November 11th, 2009 at 10:12 pm
KK:
Yes, because I’m not writing a book on Right to Life Dystopia’s I’ve also left out forced sterilizations, laws preventing pre-marital sex, etc.
You’re pulling my leg, right? Either way, that’s not what we’re talking about. We’re talking about laws that make abortion illegal, thereby killing more people (born and unborn).
Simon: you are conspicuously silent.
November 11th, 2009 at 10:43 pm
“I personally haven’t heard anyone suggest that access to abortion is being more heavily restricted by this, but I’ll take your word for it that some have.”
I’ve been debating on other blogs with some liberal bloggers that have been saying that, and linked to articles such as this one to make their case: http://www.huffingtonpost.com/jessica-arons/why-the-stupak-amendment_b_350748.html. For the record, I reject the HuffPo’s argument because it unjustifiable dismisses (see point 3 of the article) the main part of the amendment that ensures that people who want abortion coverage are not unduly burdened.
“It seems that it’s more of an ongoing understanding that a precedent with legal force.”
Agreed. My use of the word “precedent” was in its non-legal meaning. As long as we’re agreed that the amendment does not go further than laws have gone in the past to restrict tax-payer funding of abortion, I’m fine with conceding that technically it would not be illegal for congress to pass a bill that results in tax-payer funding of abortion.
“Must everybody who gets any fed’l subsidy be proscribed from getting an abortion as part of their subsidized health coverage?”
Yes, which is why it is not liked by liberals. However, if you read the amendment carefully it is clear that have made every effort possible to ensure that people who want abortion coverage can still reasonably get it (unsubsidized though), through either of these two mechanisms:
1) The law allows private plans in the exchange to provide abortion coverage, as long as they provide another plan that is equivalent except that it does not cover abortion (and presumably costs slightly less). However, only people who don’t qualify for the subsidy can buy the plan that covers abortion, so that doesn’t help poor women, which is why:
2) Plans are allowed to offer “rider” abortion coverage on top of plans, even subsidized ones. I imagine these would be inexpensive, since the probability of needing an abortion and the cost of an abortion is relatively low compared to other medical costs. And I imagine the insurance companies will make it as easy as possible to add on the rider insurance to the base plan (ie. “Check this box if you’d like to add the optional abortion coverage for $3 a month.”). It is for this reason that I believe the HuffPo article is incorrect in its conclusion that the amendment is a setback for abortion access.
November 12th, 2009 at 10:44 am
I’d say it’s pretty clear abortion will be further restricted for some folks.
Many plans on the small group market cover abortion, the new Exchange will replace that market, and many of the folks who buy on it will be subsidized. It’ll be an actual majority of 60% if they go with the House subsidies. Since the Exchange is supposed to cover 10-15% of the population 5-10% of Americans will be required to buy health insurance that does not cover abortion.
What I haven’t seen any data on is the number of those folks who have plans that currently cover abortion. Somebody going from uninsured for everything, to uninsured for everything but abortion is a lot better off under this plan than somebody who loses abortion coverage. Even the person losing abortion coverage is probably better off as insurance companies will be forced to become somewhat ethical by the Exchange.
And AFAIK the bill does not include exceptions for rape, or when the mother’s life is in danger. Which means that if I was in Congress I’d have been forced to vote against it.
November 12th, 2009 at 11:09 pm
Nick,
What you leave out is the option to buy supplemental insurance which covers abortion, which the Stupak amendment allows even for people who receive subsidies to purchase the base insurance.
So let’s say, for the sake of argument, that someone has a small group market insurance plan that covers abortion and costs $900 a month. Let’s say that person wants to move over to an equivalent plan in the exchange. If we leave aside the potential cost savings of the exchange (which are irrelevant to this discussion) that equivalent plan would cost $900. But, the equivalent plan can’t offer abortion coverage. So the plan is equivalent except that it covers one less procedure. Naturally, the plan would then cost slightly less–let’s say $895 (abortion is a relatively small portion of over-all medical expenses, of course). Now, let’s say the insurance company offers a supplemental plan (which they have an incentive to do and make as easy as possible to add-on), how much would it cost? It seems logical that it would cost $5, according to our scenario. There’s no reason why it should cost more than the amount by which the base plan was reduced by removing it. So, if the person wants to have abortion coverage, whether or not they qualify for government subsidies, it will cost them a total of $900 minus the amount of her subsidy.
So I don’t see how abortion access is being further restricted.
“And AFAIK the bill does not include exceptions for rape, or when the mother’s life is in danger. ”
It does: http://documents.nytimes.com/the-stupak-amendment#p=1
November 18th, 2009 at 9:48 pm
[...] last note…about the Stupak amendment…it’s being changed slightly… Sen. John Kerry (D-Mass.), who supports abortion [...]