Why the Stupak amendment is unconstitutional

by on November 14, 2009  •  In Congress, Constitutional law, Reproductive rights

By Cardozo Law Professor Marci Hamilton, published in Writ:

…Although many have attacked the Amendment as a policy matter, the constitutional arguments against it have been underplayed. That is a shame, because under any reasonable reading of the Constitution, the Stupak Amendment is unconstitutional: Indeed, it violates three different constitutional principles.

How the Stupak Amendment Violates The Establishment Clause

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. (A majority of Americans have favored a woman's right to choose for many years.) There is no secular purpose for the extension of the Hyde Amendment to all private health insurance plans as well. Accordingly, whatever secular purpose might be devised by those trying to defend the Stupak Amendment in court would be a sham purpose, intended to cover the frankly religious pandering the Amendment represents.

One of the clearest Establishment Clause principles is that the government may not impose a certain group's religious beliefs on those with different beliefs. The principle was articulated by the framer of the First Amendment, James Madison, in his important work "Memorial and Remonstrance," and it has been a mainstay of Establishment Clause doctrine. The Stupak Amendment violates this principle by imposing on the entire country a religious worldview that millions of Americans do not share. Moreover, this imposition of religious belief in the private sphere is in the context of healthcare, which every American needs.

How 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.

In addition, the exemption (the purpose of which is, again, obviously a religious one) does not serve any medical end, when serving medical ends is presumably the overall and most important purpose of the Health Care Reform Act. If health is truly to be served, then refusing to permit women to obtain even private health insurance that covers unplanned pregnancies, or pregnancies involving fetuses with fatal abnormalities, is not just discriminatory, but outright irrational.

How the Stupak Amendment 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.

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. Attempts to control and halt the funding of both emergency and ordinary contraception surely are not far behind, for such attempts are part of the very same politico-religious platform that includes the Stupak Amendment. There is no more obvious violation of Griswold v. Connecticut – which established that laws prohibiting contraception are unconstitutional under the Court's right-of-privacy doctrine — than for the federal government to reduce the affordability and, therefore, the availability of contraceptives for all Americans.

Conservative Senators who are pandering to religious interests (and/or simply imposing their own religious beliefs on the country) have been quoted recently as saying that they will not permit the Health Care Reform Act to backtrack on abortion issues. But backtracking is a misleading description of what the religious lobbyists are seeking. The truth, instead, is that the Stupak Amendment is a far reach beyond the already repressive Hyde Amendment, and that the advent of the federalization of healthcare is giving anti-abortion religious believers a one-stop lobbying opportunity on an issue that they were previously having to address on a state-by-state basis.

In sum, if the millions of Americans who believe in choice do not act quickly and in a concerted fashion, then we will have a historic rollback of women's liberties. That would be a true disaster, for not only is the Stupak Amendment repressive and regressive, but it also violates constitutional rights.


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