An Interesting Question of Federalism and Politics
You will probably have to be a lawyer to enjoy this post: The American political system is fascinating. Our founders established checks and balances and divided sovereignties to prevent any single governmental body or institution from gaining too much power. As a consequence, we experience many political and legal flash points and power struggles, including often, between states and the federal government.
I bring this up because there is a legal case in California that strikes me as raising many of the same issues of federalism involved in the assisted suicide case, Gonzales v. Oregon and the medical marijuana cases. This time the surface issue is abortion. Apparently the Feds enacted a provision in a 2004 spending bill that, according to a story in the San Francisco Chronicle,"denies a wide range of federal funding to states that discriminate against any health provider, health maintenance organization or insurer that does not offer abortions or abortion referrals." In other words, if doctor refuses to perform abortions and a state punishes the physician, the state can lose federal funding.
California has a law requiring all doctors "to perform abortions in an emergency in which childbirth would threaten the woman's life or health." If he or she refuses, presumably there could be state sanction--which would, in turn, risk the receipt of federal funds. So, the state sued, claiming among other arguments, that the federal law interferes with the state's right to enforce its own statutes.
This was the same argument made by Oregon when it challenged an interpretation by Attorney General John Ashcroft that prescribing narcotics for use in suicide was an improper use of federally controlled substances. The Supreme Court struck the federal policy down as having been attempted in an improper manner. But it also ruled that if Congress passed such a law, it would be constitutional. The medical marijuana cases also ruled that the Feds have the right to enforce Congressionally enacted law, regardless of state statutes to the contrary.
In the abortion case, Congress did pass such a law. So, will the courts rule consistently with Gonzales and its medical marijuana rulings? I doubt it. There is a factual distinction in that women have a constitutional right to abortion, which is not true of assisted suicide or consuming marijuana for medicinal purposes. But it seems to me that the case does not really concern the right to abortion per se, but rather, the Feds' right to enforce its own policy on a contentious issue when it conflicts with state law. In other words, it is one of our flash point power struggles.
I will be curious to see whether the ruling in this case is consistent with the MM cases and Gonzales. I am betting not. Legal rulings involving power struggles arising from cultural flash points tend, in my view, to generate result oriented decisions based in politics as much as in law. The politics of this case, particularly in the Ninth Circuit, favor California. Unless the court punts, I am betting on a ruling requiring enforcement of the federal law consistent with California's statute. If so, it could lead to the Supreme Court.
posted by Wesley J. Smith @ 10:14 AM
4 Comments
4 Comments:
Do we have any details as to how California actually enforces this against doctors?
The "in an emergency" makes it sound like the circumstances where it applies are limited, but in practice and with the word "health" in there, it _could_ be enforced effectively to punish any doctor who refuses to perform an abortion, e.g. when the woman says it will harm her "mental health" to continue the pregnancy.
Certainly the federal funding limitation is an extremely moderate move and can hardly be regarded as unconstitutional. The claim that the federal government is required to provide _funds_ in such circumstances is very dangerous and could shut off one of the only remaining avenues for the federal government to indicate disapproval of various behaviors by the states.
Btw, the fact that Roe, et. al. declare a woman to have a "constitutional right" to an abortion _should_ be legally irrelevant. It doesn't follow that the states have a right to federal money even when they try to force doctors to perform abortions.
The story says there have been no actions against doctors.
I've not read anything on this case, but based on the foregoing it appears different from the medicinal marijuana and assisted suicide/federally controlled substances cases because the present case involves a federal conditional spending measure. This case would likely focus on the matter of "unconstitutional conditions."
The relevant question would then be whether the Congress conditioned the receipt of federal funds based upon a condition that violates a person's constitutional right. Or, the constitutional conditions' question might be whether the Congress improperly conditioned the receipt of federal funds based upon a condition that violates states' sovereign powers. (The "unconstitutional conditions" jurisprudence had its origins in matters pertaining to federalism and state sovereignty, rather than individual liberty.)
The U.S. Supreme Court was faced with the claim of unconstitutional conditions in the military recruitment at law schools case. Law schools receiving federal funds were required to allow military recruiters on campus. The law profs claimed that such a condition on their receipt of federal funds was an unconstitutional condition. But the Supremes ruled nine-zip that the law school professors' rights of free association and speech were not infringed by Congress conditioning their granting of federal funds on the schools' allowance of military recruiters on campus. Schools received their funds pursuant to Congress' powers to raise and maintain an army, and the granting of federal funds to law school was made on that basis, with the law professors still free to express their strong opposition to military policies.
Here, it is certainly arguable that Congress wanted to protect the free conscience of those who think abortion is wrong or otherwise choose not to provide abortion services. Nothing in that would prevent states from continuing to allow abortion-providers to freely operate.
This case could come down to whether federal judges (or the Supremes themselves) ultimately deem the right to abortion as a negative or a positive right. In other words, is the right to an abortion right to choose an abortion free of government interference, or is the right to abortion a right to a guaranteed government welfare right? “Undue influence” is the relevant legal term, if I recall.
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