Ceding the high moral ground is never a good idea

Jeffrey Toobin explains the long history of abortion (and yes, Scalia, it existed when the Founders were writing the Constitution) and why the Stupak amendment is such a threat to women's rights.

A clear understanding of the structure of the health-care proposals currently under consideration shows why the Stupak amendment is such a threat to abortion rights. At the heart of the proposals is the idea of an exchange, where consumers will be able to select among competing insurance plans. Theoretically, the exchange will increase consumer choice, promote competition, and (somewhat more theoretically) lower costs for everyone. If there is a public option, it will be offered through the exchange. At first, many of the people using the exchange will be those who are unable to pay for health insurance on their own. For them, the government will offer a sliding scale of subsidies. It is largely these subsidies which will increase the availability of insurance; estimates of how many people will gain coverage vary, but it may be close to forty million.

Restrictions on the use of federal funds for abortion go back to the Hyde amendment, which became law more than thirty years ago; for example, there has long been a ban on abortions under Medicaid or in military hospitals. But the implications of the Stupak amendment are broader, because of the structure of the exchange. To start with, Stupak states that anyone who buys insurance with a government subsidy cannot choose a plan that covers abortion, even if that person receives only a small subsidy, and even if only a tiny portion of the full premium goes for abortion care. And the influence of the amendment reaches beyond the recipients of federal subsidies. Stupak would prohibit the public option from offering any plans that cover abortion. Further, it is expected that each year more Americans will use the exchange, including people who don’t need subsidies, but under the Stupak amendment insurance companies would have no incentive to offer those people coverage for abortion services, since doing so might cost them the business of subsidized customers. Today, most policies cover abortion; in a post-Stupak world, they probably won’t. With a health-care plan that is supposed to increase access and lower costs, the opposite would be true with respect to abortion. And that, of course, is what legislators like Stupak want—to make abortions harder, and more expensive, to obtain. Stupak and his allies were willing to kill the whole bill to get their way; the liberals in the House were not.

Toobin quotes Justice Ginsberg, "abortion rights 'center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.'”

As for the politics of the issue, Scott Lemieux observes, "The idea that anti-choicers don't actually want to legally restrict abortion for poor people but just want Democratic politicians to give them a pat on the head makes no sense in theory and is pretty clearly wrong in practice."

Reproductive rights

Justice Ginsburg has long championed the notion that government should not make reproductive choices for women. That said, I did not know this until I read Emily Bazelon's interview with yesterday.

Q: Let me ask you about the fight you waged for the courts to understand that pregnancy discrimination is a form of sex discrimination.

JUSTICE GINSBURG: I wrote about it a number of times. I litigated Captain Struck’s case about reproductive choice. [In 1972, Ginsburg represented Capt. Susan Struck, who became pregnant during her service in the Air Force. At the time, the Air Force automatically discharged any woman who became pregnant and told Captain Struck that she should have an abortion if she wanted to keep her job. The government changed the regulation before the Supreme Court could decide the case.] If the court could have seen Susan Struck’s case — this was the U.S. government, a U.S. Air Force post, offering abortions, in 1971, two years before Roe.

Q: And suggesting an abortion as the solution to Struck’s problem.

JUSTICE GINSBURG: Yes. Not only that, but it was available to her on the base.

The whole timely interview is well worth your time.

Secretary Clinton

A lot of people, myself included, were amazed when Hillary Clinton gave up the cozy life time club of the U.S. Senate for a cabinet position. After watching highlights of her testimony on Capitol Hill this week, I'm beginning to understand her decision.