Thursday, August 27, 2009
IT COULD HAPPEN HERE PART TWO
We are pleased out first post on the ominous subject of the State's so called "interest" in the health and demographics of population growth drew so much interest and comments. So we continue with the second part of our view on this subject.
(Those of you tuning in hourly awaiting the big PD expose, fear not. We are vetting sources and checking the documents and dealing with certain legal issues, including semi-anonymous email threats from those at certain buildings on 14th street who believe they may be mentioned in the post. Have patience. UPDATE: Our putative PD post is causing concern on 14th street. Without us even mentioning his name, one very top advisor/supervisor (hanger-on'er) is running around telling people he hopes the "asshole who runs the blog names him" so he can take some sort of legal action. "Get in line pal", is all we have to say about that.
Care to comment on the woman who left the office and is now in California? Why did she leave? Any comment? Care to comment on the "attorney" who can't pass the Bar's background check but was offered a job anyway? He doesn't happen to have any "family" working at your office does he? Still making PDs wear suits to the jail? How's that working? Anyway, keep ranting about us. At least we know you're reading the blog. And that's a good thing.
In Buck v. Bell we analyzed the 1927 decision upholding the State of Virginia's "right" and ability to forcibly sterilize some of its citizens. Some of you, ignoring that the famous Oliver Wendell Holmes wrote the opinion, brushed Buck v. Bell aside as a decades old irrelevant case with little meaning. Ignoring for the moment that forced sterilization's continued through the Nixon administration, how relevant is the decision in Maher v. Roe, 432 US 464 (1977)?
In the wake of Roe v. Wade, Connecticut issued regulations limiting Medicaid payments to women seeking first trimester abortions to those that were "medically necessary." Two indigent women challenged the regulations.
Since State Medicaid payments payed for "normal" child-births, the issue was framed by the court as whether a State could distinguish between funding abortions and child-births differently under the US Constitution.
Powell wrote for the majority 6-3. The first thing Powell addressed is what Roe did NOT cover: “Roe did not declare an unqualified ‘constitutional right to an abortion. It implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion, and to implement that judgment by the allocation of public funds’.”
Since Roe implies no limitation on the State to make value judgments, the door can certainly swing the other way: The State can make a value judgment favoring abortions as a policy. Impossible you say? Read on McDuff...
“The State unquestionably has a strong and legitimate interest in encouraging normal childbirth . . . an interest honored over the centuries.” Fn 11. (Emphasis supplied.)
And now it gets really really scary because here's what Powell wrote for the majority in footnote 11:
“In addition to the direct interest in protecting the fetus, a State may have legitimate demographic concerns about its rate of population growth. Such concerns are basic to the future of the State and in some circumstances could constitute a substantial reason for departure from a position of neutrality between abortion and childbirth.”
Put another way: Two so called conservatives (Rhenquist and White) three moderates (Burger, Powell and Stewart) and one liberal (Stevens) had absolutely no problem signing an opinion asserting the State's right to regulate the fetus in compliance with State mandated population and demographic growth concerns.
The State may want population growth and won't pay for abortions. Or more likely, the State may decide we have enough people for now and can "depart from a position of neutrality between birth and abortion" and....and ? And dare we say it? Justice Rhenquist signed on to an opinion that clearly says the State may ENCOURAGE (or more) abortion to control the population.
You see, as we have been saying forever, there is no difference between this popular distinction between liberals and conservatives. They both fervently believe the State owns you, they just differ on what the State should do with that ownership.
In Buck v. Bell the Court allowed the State to sterilize imbeciles and epileptics, and people wrote we were over-reacting.
In Roe v. Maher, the court called the spade a spade- the State owns the fetus and may in the future fund or refuse to fund certain procedures based on "legitimate state goals" like population growth.
And all you women thought the Roe cases were protecting your body.
Please note: We ARE NOT talking about abortion here.
We are talking about the philosophical underpinnings of these cases, which have little to do with abortion and everything to do with individual rights or the lack thereof.
We are NOT saying President Obama wants death squads.
We are saying as we approach this debate on health care to watch what is said and written and the philosophy behind it very carefully. Because as we read Maher, the philosophy and constitutional underpinnings for justifying the ability of the State to tell elderly people that the state can't afford to pay for their medical care anymore, or of forcing abortions for population control, are well in place.
Do you still think Buck v. Bell was an aberration and insignificant?
FN1: In Maher, the court clearly states the Constitution imposes "no obligation on States to pay for ...any medical expenses of the indigent."
How does that square with the current debate?
NB: Due to our long standing blog policy, we don't write about personal issues of Judges, including where they live, or how much money they have unless it directly affects some aspect of their work. Apparently, cheaper and more "National Enquire-esque" type blogs don't have that same policy. C'est la vie.