Could Left Kill Health Care In Court?

Not a Constitutional Lawyer, but some rumination on where we are now as a result of the Stupak Amendment. The goal of the health care bill is to provide universal coverage and the premise of the argument, at least at times, has been that it's a Constitutional Right. The Hyde Amendment is steeped in real, or alleged religious overtones. Hyde addresses Federal Funding but not issues of a specific Constitutional Right to be secured for all citizens.

Now that Stupak is in, could a church versus state argument be used to deem the bill as currently configured unconstitutional? Someone is going to be deprived of an alleged Constitutional Right based upon what premise? That legislators simply don't like abortion? Just wondering if there is an Equal Protections argument to be made.

The Left would want Hyde overturned, the Right would want it upheld. Whatever the case, I have to believe some groups are already thinking in terms of any possible injunctive relief and court challenge if there's any basis for it at all. This bill is a game changer and every one is on the field. 

Comments

[oldtimer]

Our so very smart TOTUS was a Consitutional lawyer, shouldn't he know all this? Of course, I have never heard if it was the US COnsitution that he taught.

[Wellescent Health Blog]

Those who are more at the far left of the spectrum will not likely attempt to kill the bill because of the number of benefits it does provide, but will instead fight to get provisions from it stripped out such as those by Stupak that prevent abortion funding. Given that the bill is so overarching, killing the bill over an amendment is less likely than seeking reversal of the amendment itself.

[TFMo]

Is it possible they are pushing for the Stupad Amendment just so they can get more Dem moderates and Republican squishes, only to overturn it later...and use that as an excuse to kill the Hyde Amendment as well?

[X11B1P]

Lindsey G was on this morning stating that the House bill is dead on arrival in the Senate and he would fillibuster with Lieberman? Lindsey stated that a gov. option will kill the private insurance industry, and it wont pass in the Senate. I don't know what to make of his remarks because he supports cap and trade and voted for sotomeyor (however you spell her name)? I guess now its time for actions to speak louder than words! Anyway, how do you reconcile one bill worth 3 trillion with a bill wort 1.4 trillion without one chamber saying NO, its not like a trillion dollars does not equal about 500 pages. In the army we had a term for this situtaion - A Goat F*&^k. It seems that this HCR bill is now at that stage, I am curious to know who in the senate is actualy doing the f(*^%ing and who is just holding on to the hind shanks?

[Lala]

Why are the Catholic bishops running the country? (abortionist question)

http://insightscoop.typepad.com/2004/2009/11/apoplectic-abortion-pusher-why-are-the-catholic-bishops-running-the-country.html

[Tom Lamb]

The Stupak amendment is just a political ploy. If you fund prenatal care you have to fund abortions. It's that simple.

Stupak is trying to play to his base in Northen Michigan.

From a point of law, if the bill passed, the newly enacted law would be challenged on the one point. The federal courts usually will not throw out the entire law. Just bits and pieces of it.

And the courts will study the congressional record to understand the intent.

Where the law get's really dicey is on making people pay for health insurance and holding people accountable.

That is a privacy issue with comsumer protection laws meshed in with it. And it is an issue that if challenged, could have broad implications.

The pro-life/consumer advocate attorney, playing devil's advocate could have a hell-of-a-time stopping damn near the whole law instead of just bits and pieces of it.

The idea that the federal government is going to force insurance companies to offer everything in the world at bargain prices will be seen by the courts as unattainable. The courts will also look at the goverment's role and sincerity in offering the "public option" as an alternative if you can't afford"private insurance.

The "public option" is a ruse to expand public health care. The Pelosi team keeps citing 2-5 percent will go on the public option. The Pelosi team have also stated that the public option will force insurers to be competitive.

http://www.foxnews.com/politics/2009/11/01/percent-reportedly-public-option/

If that is the case, how is the public option going to force the insurance companies to be competitive when only 2-5% of the people will use the public option?

The public option has to be in the bill for it to pass. And if Libermann is true to his word on the fillibuster, this goes into next year.

[Tom Lamb]

The Stupak amendment is just a political ploy. If you fund prenatal care you have to fund abortions. It's that simple.

Stupak is trying to play to his base in Northen Michigan.

From a point of law, if the bill passed, the newly enacted law would be challenged on the one point. The federal courts usually will not throw out the entire law. Just bits and pieces of it.

And the courts will study the congressional record to understand the intent.

Where the law get's really dicey is on making people pay for health insurance and holding people accountable.

That is a privacy issue with comsumer protection laws meshed in with it. And it is an issue that if challenged, could have broad implications.

The pro-life/consumer advocate attorney, playing devil's advocate could have a hell-of-a-time stopping damn near the whole law instead of just bits and pieces of it.

The idea that the federal government is going to force insurance companies to offer everything in the world at bargain prices will be seen by the courts as unattainable. The courts will also look at the goverment's role and sincerity in offering the "public option" as an alternative if you can't afford"private insurance.

The "public option" is a ruse to expand public health care. The Pelosi team keeps citing 2-5 percent will go on the public option. The Pelosi team have also stated that the public option will force insurers to be competitive.

http://www.foxnews.com/politics/2009/11/01/percent-reportedly-public-option/

If that is the case, how is the public option going to force the insurance companies to be competitive when only 2-5% of the people will use the public option?

The public option has to be in the bill for it to pass. And if Libermann is true to his word on the fillibuster, this goes into next year.

[alwaysfiredup]

It's my understanding that in Rust v. Sullivan, SCOTUS said that the government is free to favor one viewpoint over another in its subsidized activities. This was specifically in the context of abortion. As long as Congress only restricts the activities the government pays for, then this is constitutional (and, just as important, there is no liberal majority on the court that would rule differently).

A question arises with regard to those who buy insurance on this "exchange" who do not receive federal subsidies. If people have the ability to buy insurance in other places than the "exchange", then it would likely be constitutional. If everyone is forced to buy insurance from the exchange, it would be unconstitutional. But then, I think the whole idea of requiring citizens to buy insurance on a government-run "exchange" is unconstitutional. So it's just a huge question mark, unless it never really passes and then it was just an exercise in constitutional reasoning. Best thing for it, really.

[Tom Lamb]

Alwaysfiredup,

valid point.. Banning funding of abortions overseas would be one instance.

An interesting take since Obama had changed Bush's policy on the matter.

A few other case law point to the USSC turning down abortion bans when it did not make exemptions (i.e. the health of the mother, rape and incest).

So when there is a ban, it is really meaningless.

Moreover, since medicaid/medicare funding trickles down to the states, and states have to subsidize the care, then you get into case law in the states like Conn and others like Alaksa who go further than the federal level.

Since the Dems try to play the Tort Reform is a state issue, why not the health care law...