Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, January 31, 2011

The NYT on the importance of funding constitutional rights

The New York Times, not surprisingly, opposes  those "House Republicans [who] are preparing to push through restrictions on federal financing of abortions far more extreme than previously proposed at the federal level."  According to the Times, there is something . . . off about the fact that "[l]awmakers who otherwise rail against big government have made it one of their highest priorities to take the decision about a legal medical procedure out of the hands of individuals and turn it over to the government."  How restricting funding for X amounts to taking away from individuals, and turning over to government, the decision about whether or not to do X is not made clear.

Does anyone recall the Times expressing concern that the persistent refusal of most legislatures in America to make it possible for low-income Americans to exercise their constitutional right to choose religious (and, as it happens, usually better) schools for their children amounts to a denial of that right?  To a "taking away" from parents of the decision about education?  Anyone?  . . . Anyone? . . .  (Bueller?)


Garnett, Rick | Permalink

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The NYT is charging inconsistency or hypocrisy, it seems, by those who generally favor less gov't intrusion in private affairs. Saying the gov't is not going to subsidize abortion is entirely *consistent* with the view of those who believe the gov't shouldn't be involved in private affairs, not inconsistent. The NYT wants funding (that is, wants gov't involvement in the manner of money) in the private decision. Those who generally don't favor gov't involvement would rightly -- and consistently -- oppose such funding. A charge of inconsistency would fly if some limited gov't type proposed massive new spending for whatever cause (helping babies be born, for example). At any rate, even those who generally favor less gov't involvement in matters, on principle, still (usually?) welcome gov't involvement to stop killings, don't they?

Posted by: DFoley | Jan 31, 2011 12:05:25 PM

I realize this presents a nice opportunity to present a hypocrisy charge against the NYTimes, but since you support government funding for religious schools, doesn't your opposition to funding abortion amount to opposition to the abortion right, hidden behind a veneer of money? After all, funding abortion presents no more free exercise problems than funding religious schools. Less, actually.

Posted by: Andrew MacKie-Mason | Jan 31, 2011 12:44:52 PM

Andrew, I am not sure what you are "counting" as a free-exercise problem. I do not believe that taxpayers have a constitutional, "conscience" right to object *either* to public funding of abortion *or* to public funding of education in religious schools.

Posted by: Rick Garnett | Jan 31, 2011 12:51:21 PM

This bill, as I understand it, would mean the cost of an abortion was no longer a tax-deductible medical expense, as it now is. It would still qualify in cases of rape (but only forcible rape), incest, and threat to the life of the mother. In specifying "forcible rape" instead of simply rape, it also seems to mean statutory rape, as well as drugging a woman to the point where force is not necessary to commit a rape, would also also not qualify. What the point is of excluding some forms of rape while including others is beyond my comprehension. A 13-year-old who is seduced by an adult does not qualify for a government-funded abortion, but a woman who is beaten and raped does. I have seen in a number of articles that "forcible rape" is not defined by federal law and also not defined by some states. So what exactly is forcible rape? In any case, I do not understand why some babies conceived through rape should have a greater right to life than others. Why not just eliminate rape (and incest) altogether as an exception?

It does seem to me that there is a kind of inconsistency here for those on the right who believe taxation is basically illegitimate but are telling people they can't use pre-tax income for what they consider to be legitimate medical expenses. I don't agree with those people, but I think they are inconsistent to the extent that they would interfere with people using their own money as they see fit.

Posted by: David Nickol | Jan 31, 2011 2:08:35 PM

The abortion "right" is asserted to mean that professionals must participate and the government must fund it. Anything short of that is declared to be a threat to the constitution by abortion extremists. On the one hand are people who believe the government's fundamental duty is to safeguard life. On the other hand are people who believe the government's fundamental duty is to guarantee and deliver abortion.

There's plainly no inconsistency between calling for less taxes and saying that child-killing, among other things, shouldn't be tax deductable under a given scheme. Unless, of course, one assumes the absolutist view of abortion rights that I just described, which requires nothing less than government guaranteed abortions in every aspect, jot and tittle. But if one assumes that, one is improperly attributing a poisoned premise to the person one is trying to prove inconsistent.

Posted by: Matt Bowman | Feb 1, 2011 2:40:52 PM

By the way, Mr. Nickol is legally incorrect when he asserts that "drugging a woman to the point where force is not necessary to commit a rape, would also also not qualify" as forcible rape. States have had little difficulty in considering the administration of intoxicants by the perpetrator as forcible. Many states even consider rape forcible when the victim is unconscious due to no fault of the perpetrator. This seems to me to be an irresponsible charge by abortion funding advocates who are trying to give the impression that somehow the No Taxpayer Funding for Abortion Act is changing the definition of rape, which is light years beyond the effect of the language (but which is going to be clarified in committee notwithstanding unfounded allegations about rape drugs).

Posted by: Matt Bowman | Feb 1, 2011 3:43:58 PM


Are you saying the language makes no difference? And what about statutory rape? Does specifying "forcible rape" instead of just "rape" include or exclude statutory rape? And I presume you don't dispute that now to be included in the incest exception, a woman (girl) must be a minor.

The attempt to change an exception for rape to "forcible rape" has happened before (November 2009):

A day before the bill passed out of committee, Stupak co-sponsored, and voted for an amendment written by Rep. Joe Pitts (R-PA)--distinct from the now notorious "Stupak amendment"--that would have limited the government's ability to include abortions in benefits plans to cases of incest, life of the mother, and forcible rape.

The Pitts amendment actually passed, 31-27, with the support of several Democrats and all Republicans. But the "forcible" language--legally significant--was a bridge too far.

In a parliamentary maneuver, chairman Henry Waxman actually voted "aye", according to a House aide, in order to retain the prerogative of bringing it up for a second, unsuccessful vote. Between votes, Waxman conferred with some of the bill's Democratic supporters to convince them to help shoot it down.

One of them, Rep. Bart Gordon (D-TN), agreed to flip his vote. Another--Rep. Zack Space (D-IN)--didn't vote at all the first time around, but voted against it on its second pass. And that was enough to kill it.

See also http://voices.washingtonpost.com/postpartisan/2011/02/what_is_forcible_rape_exactly.html

Posted by: David Nickol | Feb 1, 2011 5:34:42 PM

I'm saying you are offering verifiably wrong and overblown legal interpretations, which themselves have been put forth to drum up breathless opposition to anything pro-life. There's no basis for saying that forcible rape doesn't include rape by drug.

Posted by: Matt Bowman | Feb 2, 2011 12:10:16 AM


You say: "I'm saying you are offering verifiably wrong and overblown legal interpretations . . . "

However, you didn't answer the question as to whether "forcible rape" would include statutory rape, and you didn't answer the question as to whether the incest exception has been narrowed to incest with a minor. Your position on Vox Nova seems to be that the language is fine, but it will be clarified in committee. If it needs to be clarified, isn't it only natural that people a concerned about what it is supposed to mean?

Posted by: David Nickol | Feb 2, 2011 10:36:56 AM

And you still, twice now, have refused to revoke your blatantly false assertions. If someone came here asserting 9/11 truther claims, and they were refuted, and the person persistently refused to concede the points, it would not be reasonable to expect that someone could have a fruitful discussion with that person about the finer points of security policy. You refuse to retract your assertions, so too I will not respond to your interrogations from the same perspective.

Posted by: Matt Bowman | Feb 2, 2011 10:48:41 AM