Wednesday, March 16, 2011
Abortion Fever, Misogynists, and the War Against Women
The Minnesota GOP and the Minnesota Citizens Concerned for Life (MCCL) don’t trust women. Yet again they are proposing a series of bills that would restrict the right of women to terminate pregnancies. Yesterday and today I submitted written and oral testimony opposing HF 201 and HF 936. The first bill would seek to deny state funding to pay for poor women to terminate pregnancies and the latter bill is a flat ban on abortion after week 20.
I testified that both bills are unconstitutional, I am including my testimony on HF 936 below for all to see.
Just a few thoughts.
First, the MCCL folks like to use emotion, photos (of fetuses), and pejorative statements to demean women and doctors. They refer to them as abortionists. I think pro-choice folks need to adopt a different language to describe their position–misogynists. Essentially they are anti-women and do not trust them to consult with doctors to make appropriate medical and ethical choices. I trust women. Not everyone may reach the decisions I would reach but it is democracy and the value of pluralist democracy. Each of us gets to make our own choices. Moreover, I find it strange that the concern for life for many seems to end when the fetus exists the womb. At that point there is little support for health care and other support to care for the children.
Moreover, I find it interesting that this group talks about ethics. One can only be held morally responsible if one has a choice. Their aim is to take choice away. With no choice there is no moral responsibility. Hmm.
Testimony of Professor David Schultz
in Opposition to HF 936
March 16, 2011
State Office Building 200
I am David Schultz and I am here to testify in opposition to HF 936.
I am a professor at Hamline University in the School of Business where I teach classes in public administration. I have a Ph.D. in political science and a J.D. (Law degree) and currently hold appointments at the Hamline and University of Minnesota Schools of Law. I am the author/editor of among other publications the Constitutional Law in Contemporary America, Encyclopedia of the United States Constitution, Encyclopedia of American Law, Encyclopedia of the Supreme Court, and the Encyclopedia of Civil Liberties.
The views expressed here are my own and not those of the schools where I teach.
Arguments Against HF 936
There are three reasons why I oppose HF 936 and why you should vote against it.
* HF 936 is unconstitutional.
HF 936 clearly violates the United States and Minnesota Constitutions.
The Supreme Court ruled in Roe v. Wade, 410 U.S. 113 (1973) that a constitutional right to privacy was broad enough to protect the right of a woman to terminate a pregnancy. This right was reaffirmed in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505, U.S. 833 (1992). Roe articulated a trimester distinction or structure to determine the competing rights of the woman versus the state in preserving fetal health. Yet even under this trimester schema, the core holding of Roe articulated a fundamental right of a woman to terminate a pregnancy. That core holding remains valid today and HF936 is unconstitutional under it.
HF 936 is also unconstitutional when viewed under alternative tests or case law subsequent to Roe and Casey. In cases such as Casey and City of Akron v. Akron Center for Reproductive Health, 462 US 416 (1983), Justice O’Connor suggested use of the “undue burden”test to determine whether a state law interfered with a woman’s right to terminate a pregnancy. While there is some dispute whether this test is constitutionally mandated, there is no question that the flat ban on abortion proposed in HF 936 unduly burdens a woman’s right to terminate a pregnancy.
Finally, in Gonzales v. Carhart, 550 U.S. 124 (2007), the Supreme Court upheld a federal law banning so called partial birth abortions. That decision represents the singular instance of a specific ban on an abortion procedure being upheld. But even under Gonzales, women, even after 20 weeks, still retain a constitutional right to terminate a pregnancy such that a flat ban on this right, even with the exceptions noted in HF936, are unconstitutional.
In addition to violating the United States Constitution, HF 936 violate the Minnesota Constitution. In Doe v. Gomez, 542 N.W.2d 17 (1995), the Minnesota Supreme Court ruled that Article I, Sections 2, 7 and 10 of the Minnesota Constitution encompassed a right to privacy broader enough to protect a right of a women to terminate a pregnancy. In that decision the Court also ruled that the constitutional right to privacy afforded under the Minnesota Constitution is broader than that offered under the U.S. Constitution. Thus, if HF 936 violates the federal constitution then under the more stringent requirements of the Minnesota Constitution it is also unconstitutional.
* HF 936 Invites Legislating from the Bench and Disrespect for the Law
Courts are bound by precedent. Many criticize the judiciary and judges who legislate from the bench when they disregard precedent and make policy based on their own private views. Legislatures should not be in the business of encouraging disrespect for the law and legislating from the bench. Instead, legislatures should be encouraging judges to respect precedent and legislatures should not be in the business of passing law specifically aimed at encouraging the courts to legislate from the bench. This is exactly what HF936 does.
This bill, if it were to become law, is inviting and encouraging the United States Supreme Court to review and reject precedent. The purpose of this bill is to become a test case and invite Supreme Court review with the purpose of overruling Roe v. Wade.
If this legislature respects the law, respects the judiciary, and it wishes not to encourage judicial activism or legislating from bench, it should reject HF 936.
* HF936 is a Tax-Payer funding for a Private Law Suit
Finally, HF201 is a request to provide taxpayer dollars to fund a challenge to Roe v. Wade. It is an effort by a special interest group to commandeer our tax dollars and government lawyers to challenge established law and precedent. At no time should taxpayers be asked to foot the legal bills for private groups wishing to challenge established law and precedents, but this makes even less sense at a time when the state is facing a $5 billion dollar deficit. Does not the state and the legislature have better things to do with its money, legal resources, and time than to pass a bill that is most certainly unconstitutional, simply to pacify special interests? I think the answer should be obvious.
For the reasons specified above, I oppose HF936 and encourage you to do the same.
Thank you for your consideration.