Proportionalism and the Health Care Bill
By Deal W. Hudson
The Senate health care bill suffers from many deficiencies, but let’s assume for the sake of argument some version of the Stupak-Pitts amendment is allowed in the version that reaches the president’s desk with the public option.
I could still not support it. Why? I am prudentially certain federal funding for abortion would follow — because of the public option — in due course.
I can’t justify whatever good may be done by the health care bill with what would follow when the Stupak-Pitts amendment, or its equivalent, was overturned by the courts.
In other words, for me to support the health care bill would be an example of proportionalist moral judgment. In Veritatis Splendor, John Paul II wrote that proportionalism considers,
the various values and goods being sought, focuses rather on the proportion acknowledged between the good and bad effects of that choice, with a view to the ‘greater good’ or ‘lesser evil’ actually possible in a particular situation. . . . Even when grave matter is concerned, these precepts should be considered as operative norms which are always relative and open to exceptions.” (VS, 75)
What makes me so certain that the public option would lead to abortion funding and, thus, an obstacle to my support for the health care bill? As I argued some time ago: “Supporters will make the argument that a government-run program cannot deny its clients coverage being offered by private insurance carriers. If Congress or the White House doesn’t add abortion coverage, you can be sure the courts will.”
I didn’t know at the time that leftwing law professors were already gearing to take any amendment barring federal funding for abortion to court. Take this article, “Why the Stupak Amendment to Healthcare Reform is Unconstitutional,” by Prof. Marci Hamilton who teaches at the Benjamin N. Cardozo School of Law at Yeshiva University.
Hamilton argues the Stupak Amendment violates the Establishment Clause, the Equal Protection Clause, and Substantive Due Process and Privacy Rights. Here is the money paragraph:
The Stupak Amendment is also a harbinger of future constitutional violations, for it erects a slippery slope of top-down control of the spectrum of healthcare options. Abortion is surely just the first foray of the religious lobbyists’ battle to take away Americans’ right to choose among the full panoply of healthcare options. Attempts to control and halt the funding of both emergency and ordinary contraception surely are not far behind, for such attempts are part of the very same politico-religious platform that includes the Stupak Amendment. There is no more obvious violation of Griswold v. Connecticut – which established that laws prohibiting contraception are unconstitutional under the Court’s right-of-privacy doctrine — than for the federal government to reduce the affordability and, therefore, the availability of contraceptives for all Americans.
Articles like this from prominent leftwing law professors make it clear what is in store for any health care bill with a public option without abortion funding. The bill will be taken to court and, because of the public option, will be stripped of any restrictions against abortion funding.
Because I view this as a prudential certainty, I cannot support any health care bill with a public option. Those who support the public option, I hope, will consider this highly probable outcome.