John Roberts joins the Supreme Court’s liberal wing to uphold the health care law. Had the court struck down all or part of the law, there would have been massive political blowback from the media, Congress, and the White House itself. The Court, of course, is not just a judicial body but also a political one. Overruling the healthcare law would have cost it a massive amount of political capital and prestige.
My cautious hope, then, is that this decision gives Roberts the psychological and political leeway needed to lead the Court in unwinding once and for all our unjust, abhorrent regime of legally sanctioned and publicly celebrated abortion.
Further, as the astute Jeremy Kessler notes, Justice Kennedy’s dissent can be seen as a decisive rejection of his image as the Court’s careful moderate. Preserving such an image would require, among other things, that Kennedy never reverses his disastrous Casey vote.
June 28th, 2012 | 11:27 am
I fail to see how upholding a law that enables taxpayer funding for abortion will help overturn Roe in the future. In addition, this may put him ‘in the pocket’ of those who support Roe, making it unlikely from a philosophical point of view that he will be willing (or have the courage) to attack Roe.
June 28th, 2012 | 11:43 am
I fail to see how upholding a law that enables taxpayer funding for abortion will help overturn Roe in the future.
The Affordable Care Act does not enable taxpayer funding of abortion.
June 28th, 2012 | 11:52 am
Yeah, I have to agree, the reasoning there is specious.
I think what Roberts did was turn this law into a Federal Government ‘insurance insurance’.
That is, for the discount tax (not a fine) of $2,800 a year, you get the right to obtain insurance temporarily when you get sick, then give it up again. Roberts left the reasoning open to a rejection of an unfair tax if the tax increases to approach the cost of health care.
Indeed, I think it might be a duty to behave in this way until the law is repealed, in essence forcing the insurance companies to bleed cash while simultaneously breaking the federal budget.
June 28th, 2012 | 11:56 am
[...] and Ashes – Sophia Mason, Saint Austin Review/Ink Desk Healthcare Vote Makes It Easier to Mothball Roe v. Wade – Matthew Schmitz, First Things/First [...]
June 28th, 2012 | 12:13 pm
Graveyard ahead, commence whistling.
June 28th, 2012 | 12:36 pm
Wow. Okay, I honestly thing we can use (I’m not kidding) Justice Ginsberg’s reasoning to challenge the HHS contraceptive mandate. Look at this:
–
JUSTICE GINSBURG questions the necessity of rejecting the Government’s commerce power argument, given that §5000A can be upheld under the taxing power. Post, at 37.
But the statute reads more naturally as a command to buy insurance than as a tax, and I would uphold it as a command if the Constitution allowed it.
It is only because the Commerce Clause does not authorize such a command that it is necessary to reach the taxing power question.
And it is only because we have a duty to construe a statute to save it, if fairly possible, that §5000A can be interpreted as a tax. Without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction.
The Federal Government does not have the power to order people to buy health insurance.
…
—
June 28th, 2012 | 2:15 pm
[...] Health Care Vote Make it Easier to Mothball Roe v. Wade, by Matthew Schmitz, First Things [...]
June 28th, 2012 | 2:47 pm
“The Affordable Care Act does not enable taxpayer funding of abortion”
I don’t think this is quite right:
http://aclj.org/obamacare/how-obamacare-uses-taxpayer-money-pay-abortions
June 28th, 2012 | 6:30 pm
The Affordable Care Act enables subscriber funding of abortion through an abortion surcharge. Oh, and one an unrelated note that subscription is mandatory.
June 28th, 2012 | 8:02 pm
The Affordable Care Act enables subscriber funding of abortion through an abortion surcharge. Oh, and one an unrelated note that subscription is mandatory.
Chalres,
The “subscription” is mandatory if the person buying insurance chooses a policy that covers abortion. Nobody is required or forced to buy insurance that includes abortion coverage. The separate payment by individuals who do choose abortion coverage is so that government money will not go toward abortion.
Additionally, states have the authority to prohibit any insurance coverage of abortion, and they will have the same authority to prohibit abortion coverage in the state insurance exchanges set up under Obamacare.
So Roe and subsequent decisions took away states’ ability to ban abortions, but states have total authority to ban abortion paid for by insurance. If Roe is overturned, the authority to regulate abortions will return to the states. But the states already have total control over abortion insurance.
June 29th, 2012 | 9:58 am
Liberal justices are very good at voting in lock-step on everything, on upholding every left-wing federal program, and on preventing states from doing any conservative, such as limit abortion or define marriage as between a man and a woman. When you try to appoint judges who do not see the courts as mechanisms of ‘progress’ and see the Constitution as a legal text rather than a ‘living organism,’ you sometimes get rulings with regrettable policy results.
June 29th, 2012 | 1:53 pm
[...] Clause powers, and the Affordable Care Act precedent is equally unlikely to be invoked in, say, a case that chips away at Roe v. Wade. If Roberts set conservatism up for future high court victories yesterday, in other words, it was [...]
June 29th, 2012 | 3:23 pm
David Nickol: The ACLJ link I provided a number of other instances of enabling.
June 29th, 2012 | 3:35 pm
The “subscription” is mandatory if the person buying insurance chooses a policy that covers abortion. Nobody is required or forced to buy insurance that includes abortion coverage
No, because being forced to cover contraceptives that induce abortion is so totally different from being forced to subsidize abortion.
June 29th, 2012 | 4:50 pm
The ACLJ link I provided a number of other instances of enabling.
David Deavel,
The argument to be found at ACLJ is such a wholesale distortion of truth that one hardly knows where to begin debunking it. I will try to comment on it later, but when something is that far off base, it almost doesn’t make any sense to try to deal with it.
June 29th, 2012 | 6:00 pm
No, because being forced to cover contraceptives that induce abortion is so totally different from being forced to subsidize abortion.
Blake,
I think that, politically at least, the issue of elective abortions and the issue of allegedly abortifacient contraceptives are two quite separate matters. Since 1970, when Richard Nixon signed into law Title X (the Family Planning Services and Population Research Act of 1970), the federal government has been subsidizing contraception. Since 1976 and the Hyde Amendment, it has been illegal for federal funds to pay for abortion. If using tax dollars to pay for oral contraceptives constitutes abortion, that affects all Title X programs and Medicaid, not just “Obamacare.” The question of whether elective abortions are funded as a result of “Obamacare” is really a separate question from whether oral contraceptives are abortifacients. You will note that the major opponents of abortion funding, such as the USCCB, did not try, and are not now trying, to limit contraceptive coverage in ACA. They are only protesting the contraceptive mandate. In fact, they have made quite a point of saying they are not trying to interfere with people obtaining contraceptives. They are only demanding the right for religious organizations to be exempt from involvement in providing contraceptive coverage.
July 2nd, 2012 | 3:12 pm
You don’t like the ACLJ read, David? Well, Ryan Anderson of FT’s editorial board has a short piece concluding that it does indeed “enable” public funding of abortion–and that nothing has changed. http://blog.heritage.org/2012/06/17/the-case-against-obamacare-on-abortion/
July 4th, 2012 | 12:27 am
I affimr the basic diretion of this artile and applaud First Things for making the point. As I see it, the underlying restraint of Roberts is precisely what was needed by the Court when it heard Roe V. Wade. The partiulars of this case aside, that restraint is the only way toward a reconsideration of Casey and eventually Roe and Roberts desreves commendation, not condemnation, for it.
July 4th, 2012 | 4:20 pm
I think that, politically at least, the issue of elective abortions and the issue of allegedly abortifacient contraceptives are two quite separate matters.
Both will be covered by Roman Catholics upon pain of harsh penalty if the Obama administration has its way.
July 4th, 2012 | 4:30 pm
And, by the way, it’s not “allegedly” abortifacient.
I realize that humanists need to pretend there is some question about whether these “contraceptives” cause abortion, but there really is no question. They are abortion-inducing.
I realize that you’re essentially humanist in your assumptions and your logic. From my point of view this sort of distinction is a perfect example of how humanism relies too little on the substance of a given debate and relies too much instead on a form of sophistry that involves a form of trickery – manipulating category definitions and the boundaries that separate them in ways that I consider to be dishonest.
Perhaps a lot of people can get suckered into debates as to whether a thing stops being an abortion if you call it a “contraceptive” instead. I don’t see any reason to change the idea that contraceptives prevent birth while abortion kills what is already conceived. That’s why it is called contra/[con]ception.
Calling something a “contraceptive” if it kills what is already conceived, rather than preventing the contraception, does not actually make it belong to the one category instead of the other, no matter how misleading certain political officials are trying to be when they (mis)use the law to tell lies.
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