Thursday, January 27, 2011

It Can Happen Here

Kathryn Jean Lopez notes a development in the controversy over federal government funding of abortion. Liberal abortion rights groups are squawking about Republican attempts to reverse ObamaCare's permitting this to occur:

They’re talking about H.R. 3, the “No Taxpayer Funding for Abortion Act,” introduced last week, the morning after the repeal vote. And they’re admitting the truth: Stupak’s once-proposed funding restrictions and conscience protections are not law. And, yes, H.R. 3 would do what the Left has long pretended is already a reality: Create a universal Hyde amendment, keeping taxpayer money away from abortion funding once and for all.

That would be a dream come true. Keeping taxpayer money away from abortion funding once and for all. (And a late thanks to "pro lifer" Jim Oberstar for allowing this to happen in the first place.)

Although, even in the unlikely event that this bill somehow got around an Obama veto in the next couple of years, the nightmare wouldn't end for some. As noted on Sunday, taxpayers in the state of Minnesota would continue to pay millions to fund thousands of abortions per year. According to our state Supreme Court, abortion is a "right" in Minnesota and the government has no choice but to take your tax dollars to pay for it, if the mother can't afford it on her own.

How did this come about in Minnesota? The facts are available in the Supreme Court decision in Doe vs. Gomez. A Fraters Libertas reader and law student provides this excellent Cliff's Notes summary of how it went down:

I found your post about abortion in Minnesota very interesting, so I attempted to de-lawyerize it for you a little bit. The excerpt in blue below (with citations and other formatting omitted) is the key passage in the opinion in which the Minnesota Supreme Court decided themselves better than the U.S. Supreme Court (saying they are adopting the "better law")--because, as you know, the SCOTUS is so backwards on abortion.

By way of preface, McRae was a case where the SCOTUS held that a constitutional "freedom of choice" was different than a constitutional "right to abortion." Under the federal Constitution (or, more accurately perhaps, under the Roe v. Wade line of cases), women generally have a right to choose abortion. But in practical terms, they do not have a right to have an abortion unless they can/will pay for it. Justice Coyne discusses this in her dissent (excerpts of which I have included in red below).

Accordingly, to the extent that McRae stands for the proposition that a legislative funding ban on abortion does not infringe on a woman's right to choose abortion, we depart from McRae. This court has long recognized that we may interpret the Minnesota Constitution to offer greater protection of individual rights than the U.S. Supreme Court has afforded under the federal constitution. In Fuller, we stated:
Indeed, as the highest court of this state, we are 'independently responsible for safeguarding the rights of [our] citizens.' * * * State courts are, and should be, the first line of defense for individual liberties within the federalist system. This, of course, does not mean that we will or should cavalierly construe our constitution more expansively than the United States Supreme Court has construed the federal constitution. Indeed, a decision of the United States Supreme Court interpreting a comparable provision of the federal constitution that, as here, is textually identical to a provision of our constitution, is of inherently persuasive, although not necessarily compelling, force.
In some cases, we have in fact interpreted the Minnesota Constitution to provide more protection than that accorded under the federal constitution or have applied a more stringent constitutional standard of review. We find that this is one of those limited circumstances in which we will interpret our constitution to provide more protection than that afforded under the federal constitution.

We do not do so lightly. It is a significant undertaking for any state court to hold that a state constitution offers broader protection than similar federal provisions, and it is certainly not sufficient "to reject a [U.S.] Supreme Court opinion on the comparable federal clause merely because one prefers the opposite result."

Although there are several possible rationales for interpreting our constitution differently from the federal constitution, we are persuaded today particularly by circumstances attendant to this case, but unique to Minnesota, our precedents, and the inadequacy we find in the federal status quo.

Minnesota possesses a long tradition of affording persons on the periphery of society a greater measure of government protection and support than may be available elsewhere. This tradition is evident in legislative actions on behalf of the poor, the ill, the developmentally disabled and other persons largely without influence in society.

This court too, has acted to establish that tradition during other times when the nation was divided on an important issue. Previously, when this nation was split on the question of slavery, this court relied on the Minnesota Constitution to strike legislation denying citizens of secessionist states access to Minnesota courts. These secessionists were politically unpopular in unionist Minnesota.

Nonetheless, this court held that government must protect the rights of each of its citizens, regardless of the fact that the larger community may hold them in low esteem. We believe that this tradition compels us to deviate from the federal course on the question of denying funding to indigent women seeking therapeutic abortions.

We are also persuaded of the correctness of our decision by our prior decisions to expand the protective reach of the Minnesota Consitution beyond that of the U.S. Constitution and by our decision in Jarvis. In Jarvis, we determined that our obligation to independently safeguard the rights of our citizens required us to decide that case exclusively under the Minnesota Constitution and our state's statutes. In a situation involving such intimate and personal decisions as the present case, we cannot agree with the federal courts. McRae has the practical effect of not protecting a woman's fundamental right to choose to have an abortion and allowing funding decisions to accomplish its nullification of that right. As a result, we believe that our decision today chooses the "better law" to protect this privacy right for Minnesota's indigent women. Minnesota has an interest in assuring those within its borders that their disputes will be resolved in accordance with this state's own concepts of justice.

It is critical to note that the right of privacy under our constitution protects not simply the right to an abortion, but rather it protects the woman's decision to abort; any legislation infringing on the decision-making process, then, violates this fundamental right. In the present case, the infringement is the state's offer of money to women for health care services necessary to carry the pregnancy to term, and the state's ban on health care funding for women who choose therapeutic abortions. Faced with these two options, financially independent women might not feel particularly compelled to choose either childbirth or abortion based on the monetary incentive alone. Indigent women, on the other hand, are precisely the ones who would be most affected by an offer of monetary assistance, and it is these women who are targeted by the statutory funding ban. We simply cannot say that an indigent woman's decision whether to terminate her pregnancy is not significantly impacted by the state's offer of comprehensive medical services if the woman carries the pregnancy to term. We conclude, therefore, that these statutes constitute an infringement on the fundamental right of privacy.

One justice (Stringer) did not participate in the case. Another justice (Coyne) dissented. Here are a few excerpts from her opinion:

The right of privacy which the Supreme Court recognized in Roe v. Wade was a woman's right to address the question whether or not to terminate her pregnancy unfettered by state law criminalizing abortion and to free her decision from the possible burden of complicity in a crime. The decision in Roe goes no further. Moreover, the right of privacy of which the Supreme Court speaks in Roe is not absolute; the abortion decision, like any other constitutionally protected choice, must be balanced against state interests, which the Supreme Court regarded as important enough to justify some regulation. Although the right of personal privacy is broad enough to include the abortion decision, that right is "subject to some limitations" and "at some point the state interests as to protection of health, medical standards, and pre-natal life, become dominant." Misapprehending the Roe analysis and its context, the majority suggests that it is the identical right which is at issue here and compels the decision reached by the majority. It is not, however, the same right. At least, it seems to me, despite the majority's insistence that there is a single right at issue here, that there is a very significant difference between a right to decide to terminate a pregnancy by abortion without fear of criminal complicity and a right to compel the state to pay for the abortion.

I interrupt the abortion talk to include another brief, but timely, quote from Coyne's dissent:

At bottom the majority's quarrel is with a political reality: selective funding. Although the magnitude of the national debt may be thought to suggest otherwise, the government cannot fund everything -- a proposition with which I presume every member of this court as well as every citizen of this state would agree. Government must be selective. * * * But until today constitutional rights have been regarded as limitations on government's power to interfere with private rights, not entitlements to governmental financial aid.

And continuing with abortion:

The closest analogue to the right of privacy with respect to reproduction and the issue concerning government funding of abortions is, I believe, found in the right to the free exercise of religion expressed in both the United States Constitution and the Minnesota Constitution and the issue concerning government funding of religiously affiliated schools. The constitutional issue is the same, it seems to me, in both cases: when does the government's refusal to fund a constitutionally protected choice impermissibly "burden" the exercise of that right? The majority rather cavalierly disposes of the analogy in a footnote . . .

* * *

To put it another way, a state may not deprive a parent or guardian of the right to choose, in the free exercise of religion, to send his or her child or ward to a religious school by compelling the child's attendance at a public school, but the state may, nevertheless, fund the public schools and at the same time deny any funding of religious schools without violating the equal protection clause of the United States Constitution.

* * *

The United States Supreme Court has, of course, decided in both the religious school context and the abortion context that freedom of choice must yield to the government's right to fund one alternative and not the other.

* * *

Even if it is no more "sinful and tyrannical" to tax those who consider abortion to be immoral than it is to tax those who consider war immoral, at the very least, respect for the consciences of those who believe abortion is immoral should count as a legitimate basis for Congress and state legislatures [as opposed to courts] to decide not to devote coerced tax dollars to that use. If, as I believe, the decision whether or not the government should fund abortion is properly a matter for decision by the legislature, the legislature has exercised its authority in what appears to me to be a rational manner. Even though the members of the court may disagree with some or all of the legislature's political decisions with respect to funding abortions, this court should not arrogate unto itself the legislative function.

* * *

Having determined that state-funding of medical services, including delivery of the child, to pregnant women and of some, but not all, abortions "coerces" a pregnant woman's decision whether to give birth or terminate her pregnancy and infringes her constitutional right to decide to terminate her pregnancy, as a matter of constitutional law the court is in no better position than the legislature to deny state-funding because the court does not approve of the reason for the decision to terminate the pregnancy. That the limitations the court imposes are less restrictive than those set by the legislature does not alter the fact that if financial considerations can be said to "coerce" a decision in violation of a constitutional right to decide, any restriction of state-funding is "coercive" and, therefore, violative of the fundamental right of privacy.

I enjoy reading. Keep it up, fellas.

A terrific summary. I can't add anything to it, other than observing the decision was a legally and morally confused mess. End result, Minnesotans are forced to pay for abortions and there's nothing the democratic process can do to address this!

Well, we'll just see about that. The Republicans in the legislature are working on a plan to address it, in S.F. 103. People of good conscience should not hesitate to let their representatives know what they expect of them on this issue.

John Hinderaker had a recent post about the banning of incandescent lightbulbs, including this call to action:

If Americans understood what the Democrats were trying to do when they passed this legislation in 2007, the result would be mass outrage.

Which may well be true. But do Minnesotans care more about lightbulbs than the forced taxpayer funding of abortions? The lack of mass outrage since 1995, when this Supreme Court decision went down, makes me wonder about the answer.

The Elder Concurs: I'm no fancy law-talking guy, but couldn't the Court's decision that the right of poor women to have an abortion extends to the state being obligated to pay for it also be applied to other rights that are you know actually specified in the Constitution? Say guns for example. Sure poor people have the right to keep and bear arms, but what if they can't afford to buy a gun? When it comes to deciding whether one should have a gun or not, the ability to pay for that gun would clearly have on influence on the choice that indigent people would make. Are only the rich to be allowed to exercise their Second Amendment rights?