Why Marci Hamilton isn’t even close to being right about the constitutionality of the Stupak Amendment


Establishment Clause


First, Hamilton says it violates the Establishment Clause to pass a legislative measure reflecting the religious views of constituents or legislators.  As a logical matter, this is nonsense.  The abolitionist, civil rights, and temperance movements each reflected heavy religious influence, but that did not invalidate the bans on slavery, discrimination, and alcoholic drinks that flowed from those movements.  Indeed, to delegitimize an entire category of constituents or legislators because their faith motivates their actions is a vile species of religious intolerance.  Notably, the Supreme Court has rejected Hamilton’s argument in precisely the context of a ban on abortion funding:

[I]t does not follow that a statute violates the Establishment Clause because it “happens to coincide or harmonize with the tenets of some or all religions.” . . . That the Judaeo-Christian religions oppose stealing does not mean that a State or the Federal Government may not, consistent with the Establishment Clause, enact laws prohibiting larceny. . . . The Hyde Amendment . . . is as much a reflection of “traditionalist” values towards abortion, as it is an embodiment of the views of any particular religion. . . . In sum, we are convinced that the fact that the funding restrictions in the Hyde Amendment may coincide with the religious tenets of the Roman Catholic Church does not, without more, contravene the Establishment Clause.


Harris v. McRae (1980).

Equal Protection Clause

Second, Hamilton claims an abortion regulation “discriminates on the basis of gender” because “[o]nly women” have abortions.  This argument is deeply offensive, as it implies that if males could get pregnant, pro-lifers would not object to men killing their own unborn babies.  Moreover, the Supreme Court has again rejected Hamilton’s argument:

Whatever one thinks of abortion, it cannot be denied that there are common and respectable reasons for opposing it, other than hatred of, or condescension toward (or indeed any view at all concerning), women as a class -- as is evident from the fact that men and women are on both sides of the issue . . . . Respondents’ case comes down, then, to the proposition . . . that since voluntary abortion is an activity engaged in only by women, to disfavor it is ipso facto to discriminate invidiously against women as a class. Our cases do not support that proposition. . . . “While it is true,” we said, “that only women can become pregnant, it does not follow that every legislative classification concerning pregnancy is a sex-based classification.”


Bray v. Alexandria Women’s Health Clinic (1993).  The Bray Court went on to list its prior abortion funding cases as examples where sex discrimination standards did not apply.  The same obviously goes for the Stupak Amendment.
   
Hamilton tries to bolster her argument by pointing out that the Stupak Amendment does not restrict funding for Viagra or prostate surgery, which apply only to men.  Of course, the Stupak Amendment also does not restrict funding for estrogen replacement therapy, uterine fibroid removal, or cervical cancer treatment, which apply only to women.  More fundamentally, none of these treatments entail the killing of members of the human family.

Hamilton questions the rationality of restricting abortion funding, on the assumption that poisoning or dismembering unborn children is good for a mother’s health.  Her assumption is, to put it nicely, highly questionable.  (See www.theunchoice.com/pblresearch.htm for published documentation of the harmful effects of abortion on women.)  If Hamilton has a study showing any positive health benefits to abortion, she should produce it, as this would be big news (and probably a rigged result).  In any event, the Supreme Court has ruled that restrictions on abortion funding are rationally related to the legitimate goal of preferring childbirth over abortion. Webster v. Reproductive Health Services (1989).

Due Process Clause

Third, Hamilton contends that restricting taxpayer funding of abortion somehow violates Roe v. Wade (1973).  Once again, the Supreme Court has rejected her argument.  “Roe did not declare an unqualified ‘constitutional right to an abortion’. . . It implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion, and to implement that judgment by the allocation of public funds.”  Maher v. Roe (1977).  The Stupak Amendment only governs the allocation of public funds; hence, it fits securely under the abortion funding cases of Maher and Harris.
   
Hamilton frets that the Stupak Amendment “erects a slippery slope of top-down control of the spectrum of healthcare options.”  This comment is ironic to the point of being farcical: it is the federal healthcare reform bill itself that would make health coverage a matter of federal bureaucratic control from top to bottom.  The Stupak Amendment merely adds the small but significant caveat that the Congressional federalization of the healthcare sector must not include forcing taxpayers to pay for prenatal killing.

I expect Marci Hamilton is a warm, gracious, intelligent person who, in her own way, considers herself an “ardent” believer.  But by presenting legal arguments that have all squarely been rejected by the Supreme Court, yet failing to mention that each of her arguments has already lost in the nation’s highest court, Hamilton has done a grave disservice to public debate on the issue of the Stupak Amendment.


Walter M. Weber is Senior Litigation Counsel with the American Center for Law and Justice (ACLJ). The ACLJ, an organization dedicated to the defense of constitutional liberties secured by law, helped work to support adoption of the Stupak Amendment. The ACLJ is based in Washington, DC and its website is www.aclj.org.