Days ago, President Obama warned the U.S. Supreme Court against judicial activism on their part in examining the federal health care act known as Obamacare. He said the justices should not forget the millions who have already gained, and will attain, health benefits.
Not only did the President insult the High Court by inferring they will not be issuing a determination based on the constitutionality of Obamacare, he redefined judicial activism. As a former constitutional law professor, Obama knows better.
Judicial activism is deciding cases OUTSIDE of the framework of Constitutional validity, by vacating or contorting duly passed legislation in order to accomplish some social engineering or otherwise ‘beneficiary’ goals. Thus, it would be judicial activism if the Court were to uphold Obamacare because of some ‘misery’ index or perceived health inequity.
Of course it was the judicial activism in the Roe v Wade ruling that declared a ‘penumbra’ of privacy that trumps the primary right to life. However, the Roe ruling did allow a few counterbalancing state interests that have prevailed in subsequent litigation, including, but not limited to, the state’s right to promote childbirth and regulate the integrity of the medical arts.
During the past decades, the women’s movement, led by Ruth Bader Ginsburg as an ACLU attorney, fought to make the Court constrain laws that are gender-biased, patterned after the policy on race-bias. But the Court has not allowed that principle to trump abortion, and Ginsburg and like-minded abortion supporters claim this is unacceptable.
And that fight has extended to the lawsuit against a Kansas insurance bill enacted last spring that bans private health insurance plans from covering elective abortion except with individually-purchased ‘riders’. Seven other states have passed such a law, Kentucky (1978), North Dakota (1979), Idaho (1983), Missouri (1983), Wisconsin (1999), Oklahoma (2007), Nebraska (2011).
Missouri’s law actually affected eastern Kansas for decades, because Blue Cross & Blue Shield insurance of Kansas City covered clients on both sides of the state line and used the more restrictive Missouri law requiring abortion riders for policy-holders in Kansas.
The Missouri law survived a court challenge with the 1992 Eighth Circuit ruling, Coe v Melahn. Missouri asserted that the statute was constitutional because it had a rational relationship to two legitimate interests: reducing the cost of health insurance and protecting the interests of citizens who object to subsidizing abortions through payment of their insurance premiums. The Circuit Court ruled it was not an undue burden under the Equal protections afforded under the 14th amendment for the state’s legitimate interest to prevail.
Losing Coe and other cases has not deterred the ‘gender-bias’ argument of abortion supporters, claiming that invidious sex-discrimination is hidden in these state interests. Though their argument has been repeatedly tried and failed, abortion supporters will not give up, and it is the basis of their current lawsuit in Kansas.
There are several reasons Kansas was targeted, but the ultimate goal is for abortion supporters to get a federal case up to Justice Ginsburg. The current Court remains divided 4-4 on abortion with a swing vote in Justice Kennedy, who has ‘weakened’ the Roe jurisprudence. Abortion supporters dream of Ginsberg convincing the justices to dethrone Roe’s privacy justification and enthrone abortion as a gender-based right.
Such a scenario –affirming the ability to destroy a tiny human as a ‘due process’ right of being a female –
would also eradicate all the pro-life protective laws, of the past 30 years, including pain capability and post- viability bans, informed consent, parental involvement, tax funding limits, etc.
This ideological goal, coupled with forcing citizens to pay for abortion under Obamacare, is why the selection of future U.S. Supreme Court justices is the pivotal concern for pro-lifers in the upcoming presidential election.