Professor and legal commentator Marci Hamilton posted an article on why she believes1 the Stupak amendment to the recently-passed health care bill in the House of Representatives is unconstitutional. Her theory is, in part, that the amendment violates the Establishment Clause. The basis for this claim, according to Hamilton, is that 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.” The Establishment Clause does not care whether this or that movement is religious.
We care about whether the legislation is religious. This religious-movement bit is a red herring.
She goes on to say, “[t]his is a brazen and frank attempt to impose a minority’s religious worldview on the entirety of American healthcare.” This is an argument from numbers. If the majority view was in favor of slavery, would we prefer that to a minority view of freedom for all? I doubt it.
Then Hamilton includes parenthetically, “A majority of Americans have favored a woman’s right to choose for many years.” Barely. The American public is hardly strongly pro- or strongly anti-abortion. We waffle right in the middle between always available (legal) and never available (illegal). In other words, sometimes available. Sometimes legal. Yeah, real ringing endorsement there.
This next part is where Hamilton’s argument really breaks down. She says,
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.
Uh-huh. There is not a single possible secular purpose? Not a one? Most good legal writers would offer at least one little, itty, bitty purpose and then shoot it down with their stronger opposition. Hamilton doesn’t even do this. She says, flat out and without justification, that any “secular purpose … devised … would be a sham purpose.” And, “frankly religious pandering”? Come on.
Let’s see how easy making such meaningless statements is: “There is no religious purpose for the extensions of the Hyde Amendment to all private health insurance plans as well.” Wow, that was easy. How about more: “Any religious purpose Hamilton might devise in trying to defeat the Stupak Amendment in the court of public opinion is clearly a sham purpose, intended to cover the frankly obvious bias she represents.”
I am a secularist. I have a secular reason to support the Stupak amendment, even though I would have supported the overall Bill regardless: Abortion should be legal but rare; the Stupak amendment is consistent with that ideal, given the language in the amendment that permits federal subsidy of abortion in the cases of rape, incest, and endangerment (the usuals).
Funny, but my position is consistent with that of most Democrats, even those pro-abortion. The underlying reason, of course, is based on the secular argument for why abortion should be legal but rare (and safe). I would argue that with Hamilton, since she seems to believe no such argument exists, but I’ll leave that for President Obama,2 who is much more eloquent than myself.
Hamilton is co-opting the opinion of “millions of Americans” by claiming that they do not share the “religious” worldview represented by the Stupak amendment. Yet Hamilton did nothing to show that the worldview was strictly religious. All she offered was a lot of fallacious and unsupported reasoning.
Hamilton’s second and third arguments regarding Equal Protection, Substantive Due Process, and Privacy Rights are a somewhat better, and she offers at least some rational support for them. However, overall I am unimpressed, and especially so with Hamilton’s grasp of the Establishment Clause and legal reasoning.
- “President Obama has defended a woman’s right to choose – but says abortion should be rare and may be restricted.” Source: PBS.org, linked above.
- The article is titled, “Why the Stupak Amendment to the Healthcare Reform Bill Is Unconstitutional”
Tags: establishment clause, first amendment, religious purpose, secular purpose, Stupak amendment
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