The 2002 Congressional election is here, and once again abortion is on the minds of many voters. Politicians who support increased abortions are again campaigning under the guise of “a woman’s right to choose.”
The slogan “pro-choice” frames the debate in terms of individual decisionmaking. It deceptively seeks support for abortion by those who instinctively oppose government regulation of citizens’ lives.
The infamous case establishing abortion-on-demand in the United States, Roe v. Wade, 410 U.S. 113 (1973), spoke in terms of a so-called right of privacy. It relied on a recent shift in position by the American Medical Association, which had historically opposed abortion – as does the 2400-year-old Oath of Hippocrates.
Yet nothing in the privacy or choice arguments justifies government funding of abortion. Nevertheless, there is constant pressure for more of it.
Abortion funding relies on changing the argument from “choice” to “equality”. Abortionists insist that if a state program for the poor pays for any abortions, then it must fund all indigent abortions performed in the name of health.
Arizona Supreme Court Decision.
On October 22nd, the Arizona Supreme Court required taxpayer-funded abortions, by a 3-2 margin. Simat Corp. v. Arizona Health Care Cost Containment System, 2002 Ariz. LEXIS 180 (Oct. 22, 2002). It invoked “equal” fourteen times in ordering broad taxpayer funding of abortions.
Abortionists themselves brought this challenge to limitations on government funding. The issue was not whether poor women may obtain abortions – Roe v. Wade says they can – but whether taxpayers must foot the bill.
Some pro-life politicians embrace exceptions to their stand against abortion, typically for rape, incest, or endangerment of the life of the mother. Their argument is often that these cases are a tiny percentage of overall abortions, and not worth fighting over.
But the Arizona Supreme Court seized upon these exceptions to Arizona’s general prohibition against abortion funding. Enacted in 1980, it limits abortion funding to cases of endangerment to the life of the mother, and federal law has since extended funding to cases of rape or incest. A.R.S. § 35-196.02.
If any indigent Arizonan meets one of those criteria, then she has a statutory right to a taxpayer-funded abortion, regardless of her color or creed. There is nothing discriminatory about Arizona’s funding policy, and “equality” has no application.
Yet the Arizona Supreme Court held otherwise, demonstrating how exceptions to the pro-life position undermine it. The Court decided that equality and non-discrimination require the state to broaden its funding beyond those categories, simply because it chose to fund some abortions.
Decades ago, the Supreme Court held in Harris v. McRae that there is no constitutional requirement for taxpayer-funded abortions. 448 U.S. 297 (1980). That decision was rendered during Reagan’s campaign for the White House, who expressed the public outrage over Roe v. Wade. (President Carter, for his part, was the only full-term president who lacked a Supreme Court vacancy to fill.)
The Harris district court had invalidated limitations on government funding known as the Hyde Amendment, on the grounds they violated the constitutional equal protection clause (Amendment V) and the free exercise of religion clause (Amendment I).
Specifically, the district court held that “the decision of Congress to fund medically necessary services generally but only certain medically necessary abortions serves no legitimate governmental interest,” and thus violates equal protection guarantees of the Constitution. Id. at 306.
As to the Free Exercise Clause of the First Amendment, the court held that insofar as a woman’s decision to seek a medically necessary abortion may be a product of her religious beliefs under certain Protestant and Jewish tenets, the funding restrictions of the Hyde Amendment violate that constitutional guarantee as well.” Id. This may have motivated Justice Scalia a decade later to vastly narrow the scope of the free exercise clause in Employment Div. v. Smith, 494 U.S. 872 (1990).
The Supreme Court reversed the district court in Harris, and held that “the Hyde Amendment bears a rational relationship to its legitimate interest in protecting the potential life of the fetus.” 448 U.S. at 324. It thereby upheld government restrictions on funding abortions. But that decision was only by a 5-4 margin, and states remain free to pursue judicial activism with their own constitutions.
Which is what the Arizona Supreme Court just did. Article II, Section 13 of the Arizona Constitution states that laws “equally belong to all citizens,” which the Court construed to mean that state funding of some indigent abortions requires funding all indigent abortions for health reasons.
The Court found this “so clear” that it did not even resort to Arizona’s constitutional right to privacy. The Court insisted that fifteen other state courts have held in a similar manner, requiring abortion funding based on expansive interpretations of state constitutions.
Its conclusion thereby expanded Arizona funding of abortions to “women who experience the unfortunate coinciding circumstances of being both indigent and ill while pregnant.”
Justice Rebecca White Berch wrote a powerful dissent, which Chief Justice Charles Jones joined. She observed that Arizona courts had always followed the U.S. Supreme Court in construing equal protection, yet rejected that approach here in order to fund more abortions.
Moreover, Justice Berch noted, the majority rewrote the statute to replace the funding limitation for “life of the woman having the abortion” with “health of the woman having the abortion.” A.R.S. § 35-196.02. The Court improperly acted as a super-legislature, modifying the statute at whim.
Finally, Justice Berch criticized how the majority decided the case without a factual record or even a claim by a woman seeking an abortion, typical prerequisites to informed adjudication. She commented that several of the hypothetical illnesses would have probably been covered under the existing statute anyway.
The Arizona law was on the books for nineteen years before the abortionists challenged it and the activist judges rewrote it. This decision illustrates the folly of trying to be pro-life with exceptions.
The term “equality” can become a wolf in sheep’s clothing, when misused. The American people are right to oppose, for example, equality for illegal immigrants, gay marriage, and drafting women.
Abortion was invented as a constitutional right in the name of privacy and choice, not equality. But illogic is no obstacle to those who support abortion. Equality is now being misused to increase and broaden government funding for abortion.
Query: Would abortion be so widespread in America if the massive government funding for it were terminated?