Son of Liberty and the American Revolution

Overturning ObamaCare Wouldn’t Constitute “Judicial Activism”

2012-03-31T23:07:00.002-07:00

From CFIF:

Overturning ObamaCare Wouldn’t Constitute “Judicial Activism”

BY TIMOTHY H. LEE
THURSDAY, MARCH 29 2012

To refrain from overturning ObamaCare based upon timid political calculations would constitute judicial activism.

This week, it suddenly dawned on bewildered liberals that ObamaCare’s legality was dubious after all.

Behold New York Times bubble-dweller Linda Greenhouse, prior to this week’s oral arguments before the Supreme Court: “The notion that Congress somehow lacks the power to regulate, restructure or basically do whatever it wants in the health care sector, which accounts for 17 percent of the gross domestic product, is far-fetched on its face.” [Emphasis added.]

Perhaps Ms. Greenhouse never devoted serious thought to the Constitution’s actual structure and text, or pondered the absurdity of the notion that the Founding Fathers inserted the interstate commerce clause into the Constitution for no reason whatsoever. After all, that would be the effective result if the Article I provision allowing Congress “To regulate commerce … among the several States” somehow allowed Congress to “basically do whatever it wants.” The framers were intelligent men, and could have simply stated, “Congress can basically do whatever it wants” if that was their intent.

That notion met a rude reception from the initial question, when Justice Anthony Kennedy asked, “Can you create commerce in order to regulate it?” By the end of the day, CNN’s Jeffrey Toobin proclaimed, “This was a train wreck for the Obama Administration, this law looks like it’s going to be struck down.”

Toobin’s pronouncement may ultimately prove as unfounded as his earlier prediction that this would all be smooth sailing for the Obama Administration. At the very least, however, liberal observers now understand that eye-rolling and Nancy Pelosi’s “Are you serious?” mentality are no substitute for sober constitutional analysis.

Stunned liberals immediately began cannibalizing Obama Administration Solicitor General Donald Verrilli, as if the problem was his competence rather than the untenable statute he was forced to defend. Then, ObamaCare’s defenders commenced a partisan campaign to slur any decision overturning the law in whole or in part as “judicial activism.”

According to Neera Tanden of the liberal Center for American Progress, “If they overturn the individual mandate and undermine the central element of this bill a few months before the election, it will anger Democrats and rile up the base. People will see it for what it is: an activist court rendering a partisan decision.”

But reality is precisely the opposite. To refrain from overturning ObamaCare based upon timid political calculations would constitute judicial activism. In contrast, ruling that the statute contravenes constitutional text would constitute judicial fidelity, which Webster’s defines as “faithfulness to obligations, duties, or observances.”

That’s because a judge’s responsibility in our constitutional democracy is to impartially apply laws. Otherwise, we become a nation of men, not of laws, as judges alternatively act as unrestrained oligarchs or subservient deputies of the legislative and executive branches. In either scenario, our system of separation of powers and checks and balances deteriorates, and rule of law recedes to the will of those in power.

As memorialized by Alexander Hamilton in The Federalist Number 78, Constitutional liberties “can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void”:

“No legislative act, therefore, contrary to the Constitution, can be valid… The courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It must therefore belong to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body… Where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.”

Accordingly, a recognition that ObamaCare stands in opposition to the Constitution’s limitation of powers would not amount to “judicial activism.” Rather, elevating political calculations or Congressional courtesy over legal text would.

Our Constitution established its system of checks and balances and separation of powers in order to protect individual freedom against encroachment by the other branches. It is now the Supreme Court’s responsibility to fulfill that duty by overturning ObamaCare. To do otherwise based upon peripheral considerations would constitute the true manifestation of “judicial activism.”

“A Court of Radicals: If the justices strike down Obamacare, it may have grave political implications for the court itself.”

2012-03-31T22:02:00.001-07:00

“A Court of Radicals: If the justices strike down Obamacare, it may have grave political implications for the court itself.”

SCOTUS Momentus

2012-03-31T21:58:00.002-07:00

From Town Hall:

SCOTUS Momentus

Rich Galen

Health care and Energy were the big stories this week in Washington, DC. The three-days of arguments at the Supreme Court of the United States (which we, in the Twitter-verse, refer to as SCOTUS) appeared to have reversed the conventional wisdom of how the Court would rule.

Prior to the oral arguments the media cognoscenti were pretty sure the Court would uphold the Constitutionality of the individual mandate and thus the entirety of the Affordable Care Act.

Just as a reminder, an appellate court - which the Supreme Court generally is - is not like a trial court where the judge sits and mostly listens except to rule on motions and admonish the audience to be quiet. During sessions like Tuesday and Wednesday the Justices ask questions, interrupt the attorneys (and each other), and pose, as Tevya sang in If I Were a Rich Man, "questions that would cross a Rabbi's eyes" all of which the attorneys for each side are supposed to dodge, answer, and/or parry.

After hearing the two days of arguments on Obamacare itself (remember the first day was discussing whether the Court had the authority to take the case up before April 15, 2015) the mood of the Court-watchers changed 180 degrees.

According to them the Justices seemed genuinely troubled by the whole question of the individual mandate and, having expressed their concern about that some wondered aloud whether, if the mandate is struck down as Unconstitutional, doesn't that invalidate the rest of the law as well?

The third issue the Court took up was whether the expansion of Medicaid in Obamacare represented Unconstitutional coercion on the part of the Federal government in that it ties the Federal part of Medicaid funding to the States' adoption of new rules which greatly expand eligibility.

In this one, according to Amy Howe, writing in her ScotusBlog.com column, the Liberal Justices appeared to raise the better issues and ask the more more eye-crossing hypothetical questions, so it is quite possible the court will rule one way on the mandate question and another on the Medicaid issue.

I have never been in the Court when they were in session. But I have been inside the building. Years ago I made the point that if you walk through the Capitol building right across the street, you will often see signs outside hearing rooms that say, "Quiet, Please."

In the Supreme Court (at least back in the day) there was a sign just outside the Chamber which read, "Silence."

That, I mentioned at the time, is all you need to know about how people who have to stand for re-election act toward the public and how people who are appointed for life act.

According to Richard Wolf's excellent backgrounder in USA Today, the nine members of the Supreme Court will probably hold a preliminary vote as early as today, but

"That initial decision may be altered as drafts of majority and dissenting opinions are written, circulated and rewritten, often many times. It might even be reversed during the lengthy writing process if one or more justices switch sides."

The ruling isn't expected to be released until late June and, until then, you can be certain of one thing: It won't leak.

On the Secret Decoder Ring page today: Two excellent links. One to the Rich Wolf USA Today look at what happens now, and to Amy Howe's piece on the Medicaid issue.

Rich Galen

Rich Galen has been a press secretary to Dan Quayle and Newt Gingrich. Rich Galen currently works as a journalist and writes at Mullings.com.

Elena Kagan: How Can Giving a Boatload of Money to Poor People be Unconstitutional? | Vision to America

2012-03-31T21:19:00.001-07:00

Elena Kagan: How Can Giving a Boatload of Money to Poor People be Unconstitutional? | Vision to America

Will Obama Defy Supreme Court If ObamaCare Is Ruled Unconstitutional? – Patriot Update

2012-03-31T16:37:00.001-07:00

Will Obama Defy Supreme Court If ObamaCare Is Ruled Unconstitutional? – Patriot Update

Atheism Being Established as State Religion – Patriot Update

2012-03-31T16:15:00.001-07:00

Atheism Being Established as State Religion – Patriot Update

The Imaginative Conservative: Classical Greek Philosophy and American Democratic...

2012-03-31T16:09:00.001-07:00

The Imaginative Conservative: Classical Greek Philosophy and American Democratic...: Dr. E. Christian Kopff on "Classical Greek Philosophy and American Democratic Thought."

The Imaginative Conservative: The Meaning of Liberty During the American Revolut...

2012-03-31T16:06:00.001-07:00

The Imaginative Conservative: The Meaning of Liberty During the American Revolut...: by Bradley J. Birzer The Meaning of Liberty During the American Revolution (Part I).

Even If It Survives the Court, the Health Care Law Is Doomed - Rasmussen Reports™

2012-03-30T23:39:00.001-07:00

Even If It Survives the Court, the Health Care Law Is Doomed - Rasmussen Reports™

In Plain English: Conditions or unconstitutional coercion? : SCOTUSblog

2012-03-30T23:37:00.001-07:00

In Plain English: Conditions or unconstitutional coercion? : SCOTUSblog

Reid: No recess appointments this time - The Hill's Floor Action

2012-03-30T23:36:00.001-07:00

Reid: No recess appointments this time - The Hill's Floor Action

EDITORIAL: Justice Roberts' cellphone - Washington Times

2012-03-30T23:35:00.003-07:00

EDITORIAL: Justice Roberts' cellphone - Washington Times

2012-03-30T23:35:00.001-07:00

EDITORIAL: Justice Roberts' cellphone - Washington Times

Jeffrey Rosen: One Simple Argument Could Have Saved Obamacare. Too Bad Verrilli Didn’t Make It. | The New Republic

2012-03-30T23:34:00.001-07:00

Jeffrey Rosen: One Simple Argument Could Have Saved Obamacare. Too Bad Verrilli Didn’t Make It. | The New Republic

The Court’s Legitimacy

2012-03-30T23:33:00.001-07:00

From The Volokh Conspiracy:

The Court’s Legitimacy

David Bernstein • March 30, 2012 9:50 am

Following up on Jonathan’s post below, I’m not terribly worried about warnings from the left that a ruling against the ACA will undermine the Court’s legitimacy.
Who, after all, is going to lead the charge against the Court? Liberal journalists like Linda Greenhouse and Dahlia Lithwick, whose human capital is invested in covering the Court? The fraternity of elite liberal lawyers who served as Supreme Court clerks, for whom undermining the Court’s legitimacy means undermining the value of their own prized credential? Liberal constitutional law professors, who are as invested as anyone in the Court’s significance? (It’s hard enough to get people to read one’s latest article on “A Kantian/Weberian Approach to the Fourth Amendment” when the Court is as important as it is now!) Liberal activist groups and think-tankers, who still treasure the Court’s rulings on abortion, due process rights for terrorism suspects, term limits, and more, and who hope that a future Court will recognize a right to gay marriage? Liberal Congressmen, when Congress’ popularity rating is well below the Court’s, and who have hardly shown themselves to be constitutional scholars? (Not to mention that journalists like Lithwick are on record suggesting that it’s “weird” for members of Congress to be considering the constitutionality of legislation. “Isn’t it a court’s job to determine whether or not something is, in fact, constitutional?” wrote Lithwick.)
At most, a ruling against the ACA will have the same effect as Bush v. Gore or Citizens United, or Roe v. Wade and Boumediene for that matter; a fair amount of caterwauling, with the Court as an institution remaining unscathed.
UPDATE: I probably should add that I’m not at all sure the Court should have the level of legitimacy it currently has. I think the other branches of government were meant to, and probably should, play a significantly larger role in constitutional decisionmaking than they currently do. But as a positive matter, I don’t see the ACA litigation as a threat to that legitimacy.
FURTHER UPDATE: Oh, and of course, why undermine the Court’s legitimacy when your side is one appointment away from taking it over?

Liberty Counsel Files Brief in Alabama Supreme Court in Defense of Pre-Born Life

2012-03-30T23:31:00.002-07:00

From Liberty Counsel:

Press Release

March 30, 2012

Liberty Counsel Files Brief in Alabama Supreme Court in Defense of Pre-Born Life

www.LC.org

Montgomery, AL – Liberty Counsel filed an Amicus Curiae Brief in the Alabama Supreme Court in the case of Ankrom v. State of Alabama. The case involves the consolidation of two cases, which address the question of whether Alabama’s law against chemical endangerment of children can be applied to unborn children who are exposed to illegal drugs in utero. Courts of appeal in Alabama upheld convictions of mothers who were charged under the chemical endangerment law, when their children tested positive for illegal drugs at birth.

Liberty Counsel’s brief provides the Alabama Supreme Court with a thorough historical review of legal protection for unborn children, dating from ancient Greece to the present day. Common law in England and the United States, with support from the medical and legal professions, recognized that “[l]ife is the immediate gift of God, a right inherent in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother’s womb.” This understanding remained the prevailing view in the United States through the middle of the 20th Century, when a societal shift prompted a “liberalization” of criminal laws, including restrictions against abortion, culminating in the abortion cases, Roe v. Wade, 410 U.S. 113, (1973) andDoe v. Bolton, 410 U.S. 179 (1973), in which the Supreme Court held that unborn children are not “persons” protected by the right to life set forth in the Constitution.

Advances in medical science have established the truth of the historic view of the unborn child as a human being, not merely a “potential” human being. Liberty Counsel’s brief encourages the Alabama Supreme Court to return to that valuation of unborn children.

Mathew Staver, Founder and Chairman of Liberty Counsel, said, “Our brief convincingly shows that the U.S. Supreme Court’s abortion cases are out of step with history, law, and science regarding the humanity of unborn children. In personal injury, criminal, and wills and estate law, the trend has been to recognize the unborn child as a human with legal protections. The U.S. Supreme Court’s abortion cases are an aberration to law and stand on an island by themselves, and that island will one day disappear.”

Religion Clause: Former Prof Charges Religious Discrimination After Discipline For Refusing To Attend Show On Gay Rights

2012-03-30T23:25:00.001-07:00

Religion Clause: Former Prof Charges Religious Discrimination After Discipline For Refusing To Attend Show On Gay Rights

House gives preliminary OK to bill that supporters say preserves religious freedom, but opponents say allows discrimination

2012-03-30T23:24:00.002-07:00

From LJWorld.com:

House gives preliminary OK to bill that supporters say preserves religious freedom, but opponents say allows discrimination

By Scott Rothschild

March 28, 2012, 5:09 p.m. Updated March 29, 2012, 7:04 a.m.

TOPEKA — The Kansas House on Wednesday advanced legislation that would allow a religious defense to discriminate against gays.

Two Lawrence representatives attacked the bill, called the Kansas Preservation of Religious Freedom Act, as an attempt to destroy a city of Lawrence anti-discrimination ordinance that includes sexual orientation.

In an impassioned speech, state Rep. Barbara Ballard, D-Lawrence, said, “I am very proud of my Lawrence community, and I’m very proud of the ordinance that we passed.” Ballard added, “Discrimination is an injustice. It is an injustice to everyone.”

House Minority Leader Paul Davis, D-Lawrence, said, “I don’t believe it is ever right to discriminate against someone because of their sexual orientation.”

But State Rep. Lance Kinzer, R-Olathe, defended his bill, saying it was meant to make sure government could not infringe on an individual’s religious beliefs.

“Free exercise of religion is at the core of who we are as a people,” Kinzer said.

Davis asked Kinzer if under Kinzer’s bill an apartment owner could cite his religious beliefs to fight a complaint if he refused to rent to a same-sex couple.

“That is generally correct,” Kinzer said.

Davis said that was unfair to the city of Lawrence, which is the only city in Kansas that has an anti-discrimination ordinance designed to protect people based on sexual orientation.

State Rep. Charlie Roth, R-Salina, said that Kinzer’s legislation was “homophobic” and that it will hurt Kansas’ image. “It sends the message that Kansas is not welcoming. Kansas will become known as the land of the pure as defined by the few,” Roth said.

But Kinzer said local units of government should not be allowed to engage in religious discrimination against its citizens.

The bill was approved 89-27. Ballard, Davis and state Rep. Tom Sloan, R-Lawrence, voted against it. State Reps. Anthony Brown, R-Eudora, and TerriLois Gregory, R-Baldwin City, voted for it.

The bill would prohibit state and local governments from substantially burdening a person’s religious beliefs unless the government can prove that the burden is advancing a compelling government interest and is the least restrictive way of advancing that interest.

The measure is supported by Gov. Sam Brownback’s administration, the Kansas Catholic Conference and Concerned Women for America of Kansas. It was opposed by Lawrence officials, the Kansas Equality Coalition and the state chapter of the National Organization for Women.

Right before advancing the Kansas Preservation of Freedom Act, the House gave preliminary approval to putting a chapel for prayer and meditation in the Statehouse.

Both proposals will require a final vote before going to the Senate. Those votes will probably be taken Thursday.

In Search of Tolerance in Lexington? Don't Look to the Government

2012-03-30T23:23:00.003-07:00

From Town Hall:

In Search of Tolerance in Lexington? Don't Look to the Government

Bryan Beauman

Something big is brewing in Lexington, Ky., and as difficult as it might be for some sports fans to believe, the implications are far greater than the University of Kentucky-Louisville Final Four match-up on March 31. At stake are fairness, tolerance, diversity, constitutionally protected rights, taxpayer dollars, and local jobs.

Homosexual activists, the self-proclaimed purveyors of (a distorted notion of) fairness and tolerance, have unjustly pointed the finger at an apparel and promotional-printing business—Hands On Originals, Inc. But the real offenders here are local government officials in Lexington.

Hands On Originals is a well-respected Lexington business that prints and designs apparel and other promotional materials for its customers, which, until today, included Lexington. The company is a beacon of true tolerance and diversity in the community: it employs and serves people from all walks of life. But due to the promotional nature of its products, Hands On Originals (like many similar companies) refuses orders endorsing positions that conflict with its owners’ convictions.

This business policy is consistent with American ideals. Indeed, no one expects an African-American printer to create and produce promotional materials for a skinhead rally, or a feminist business owner to provide her services for a convention advocating male dominance. But homosexual activists have brazenly demanded that Hands On Originals create promotional materials for the Lexington Pride Festival—an event that advocates homosexual behavior—even though such a message conflicts with the owners’ convictions. Worse yet, Lexington government officials, who are supposed to respect and protect the interests of all citizens, have ceased doing business with the company simply because its owners have chosen to operate consistently with their conscience.

This government retaliation is deeply troubling for a number of reasons. First, it illustrates that the government, despite lip service about diversity and fairness, maintains a lopsided view of inclusiveness that fences out people of faith. In other words, the government’s “tolerance” will not tolerate citizens seeking to live in a way that—God forbid—complies with the dictates of their conscience.

Second, in their reckless attempt to appease local homosexual activists, these government officials have acted unconstitutionally. The government cannot retaliate against a business for that business’s exercise of its right—protected by the First Amendment—not to promote an unwanted message. Yet by doing precisely that, these government officials subject themselves to a costly lawsuit and an immense waste of taxpayer dollars.

Third, it’s no secret that times are tough in this economy, and the public rightly expects its government officials to create jobs. But by callously stripping large amounts of business from this local company, the government has directly jeopardized the livelihood of the more than 30 Hands On Originals’ employees.

Simply put, Lexington should seriously consider reversing course. Its actions have not only propagated a cramped view of tolerance; it has violated the Constitution and sacrificed local jobs in the process. Many people are already speaking up to support Hands On Originals, and once the larger masses catch wind of this injustice, the uproar rising out of Lexington won’t be the cheers of Kentucky basketball fans. Rather, it will be the indignation of citizens demanding true tolerance for all, especially the owners and employees of Hands On Originals.

Tags: Government , Homosexual Agenda , Business , Tolerance , Kentucky

Bryan Beauman

Bryan Beauman serves as senior counsel with the Alliance Defense Fund.

Obamacare Arguments Conclude – What Will Be The Impact on Religious Liberty & The Sanctity of Life?

2012-03-30T23:21:00.002-07:00

From ADF:

Obamacare Arguments Conclude – What Will Be The Impact on Religious Liberty & The Sanctity of Life?

BY CASEY MATTOX
POSTED MAR 30, 2012
0 COMMENTS AND 0 REACTIONS

The Supreme Court has concluded its three days of arguments on the constitutionality of Obamacare, and I had the privilege of being present for some of the arguments. To my knowledge the words “religious freedom” or “abortion” were not mentioned. Yet, the Court’s decision will have enormous implications for these fundamental questions.

The Court’s attention was trained on the “individual mandate,” the requirement that every citizen purchase a health insurance plan containing everything Washington’s bureaucrats think should be included. But from that mandate springs a variety of other mandates that threaten religious freedom and the sanctity of human life. These include taxpayer subsidies for elective abortion in health insurance exchanges, the abortion coverage mandate (requiring that government subsidized health plans that cover elective abortion will charge an additional abortion fee for those services) and the secrecy clause which ensures that public advertising about these plans will not indicate that they carry an additional abortion fee until you are already in the enrollment process. It also includes the HHS anti-conscience mandate which requires religious employers to provide their employees with coverage of abortion pills, contraceptives and sterilizations in violation of the religious employer’s conscience and First Amendment rights.

If Obamacare falls, these provisions also fall. Hence, the intense interest from advocates for religious liberty and the sanctity of life, like ADF. In fact, ADF is presently involved in a number of cases trying to stop thesemandates and abortion subsidies from being implemented.

As the week began, the simplified path to invalidation of the numerous violations of religious freedom and taxpayer subsidized abortion in Obamacare was as follows:

Monday: The Supreme Court decides that Obamacare’s individual mandate is not a tax making it not subject to the Anti-Injunction Act and giving the Court jurisdiction to rule on its constitutionality now.
Tuesday: The Supreme Court decides that the individual mandate exceeded Congress’s authority to regulate interstate commerce under Article 1, Section 8 of the Constitution (and isn’t authorized by any other Congressional power).
Wednesday: The Supreme Court decides that the unconstitutional individual mandate cannot be “severed” from the remainder of the law and thus not only the mandate but the entire law must be declared unconstitutional.

Were a majority of the Supreme Court to reach all three holdings then the taxpayer subsidies of abortion and frontal assaults on religious freedom would be eliminated. Prior to this week the conventional wisdom was that it was unlikely that the Court would invalidate the entire law. The conventional wisdom seems to have changed.

It now seems very possible that a majority of the Court will declare the entire law unconstitutional. With the caveat that a Justice’s questions do not necessarily reveal how they will vote, observers are in apparent unanimity that the Court will hold that the mandate is not a tax and it therefore has jurisdiction to determine its constitutionality now. As to the second and third steps the outcome is somewhat less clear. However, it was apparent from Tuesday’s argument that the majority of the Court was deeply troubled by the individual mandate and the Administration’s difficulty to provide any meaningful way to limit its expansion of government power. Few who witnessed the arguments would be surprised if the individual mandate is declared unconstitutional. Finally, it appeared on Wednesday that a majority of the Court might also be willing to take the third step and invalidate the entirety of the law – including its tax subsidies for abortions and unprecedented violations of religious freedom. However, at least as to the constitutionality of the individual mandate and its severability the Court seems likely to split 5-4 either way. Actually predicting the Court’s votes based on the questions from the Justices is perilous. But after witnessing the arguments the possibility of the Court striking down not only the individual mandate but the entire law seems much more real.

The Court will likely take a preliminary vote on the constitutionality of Obamacare behind closed doors at its Friday conference and then begin the process of opinion drafting that will probably culminate in a decision on or near the last day of the Court’s term in late June. For advocates of religious liberty and the sanctity of life, this week’s arguments provided an indication that this law which has been the source of so many threats to these paramount interests may be in serious jeopardy.

AUTHOR: CASEY MATTOX

ADF Alliance Alert » news from the frontlines of the culture war: Thomas Messner: Justice Kennedy Shows How to Avoid Conflicts on Religious Freedom and Litigation Tidal Wave

2012-03-30T23:20:00.001-07:00

ADF Alliance Alert » news from the frontlines of the culture war

The American Civil Liberties Union has won a legal round in its effort to overturn a Kansas law that restricts insurance coverage for abortions.

2012-03-30T23:19:00.003-07:00

Judge sides with ACLU in Kan. abortion ruling

Mar 30, 2012 11:50am

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From NECN.com:

WICHITA, Kan. (AP) — The American Civil Liberties Union has won a legal round in its effort to overturn a Kansas law that restricts insurance coverage for abortions.

U.S. District Judge Julie Robinson sided with the organization by rejecting the state's request to dismiss a key challenge of the law based on equal protection. The ruling, handed down Thursday, allows the ACLU to continue pursuing its argument that the law illegally singles out women.
The Kansas law prohibits insurance companies from offering abortion coverage as part of general health plans, except when a woman's life is at risk. Patients who want abortion coverage must buy supplemental policies, known as riders, that cover only abortion.
The ACLU contends that the law discriminates against women, since men can buy full comprehensive coverage for all their health needs but women need to buy a separate policy to add abortion coverage. The organization contends the purpose of the law is to inhibit women from getting abortions.
That "argument gets closer to the heart of the issue — namely, whether the means used by the State of Kansas to further its interests, including its interest in protecting potential life, can be considered legitimate in view of the individual liberty" outlined in a previous U.S. Supreme Court decision, Robinson wrote. The judge was referring to a ruling that tried to strike a balance between the right of the state to protect a fetus and the right of a woman to terminate her pregnancy.
Robinson said the ACLU might be able to show at trial that Kansas imposed an undue burden by creating a substantial obstacle to a woman seeking an abortion.
The ruling provides a glimpse into the legal reasoning of Robinson, the federal judge in Topeka who is overseeing the case following the death of U.S. District Judge Wesley Brown in Wichita earlier this year.
Brown refused last year to block the law's enforcement, saying opponents failed to prove their claim that legislators' real intent was to create obstacles for women seeking abortions. But he also told the ACLU that it could try again, noting his decision wasn't a final ruling on the merits of the group's claims.
Women seeking an abortion in Kansas need to buy the insurance rider or pay for the procedure out-of-pocket if their insurance policies are new or were renewed after the law took effect last year on July 1.
The law was among several major anti-abortion initiatives approved by Kansas legislators and signed into law last year by Republican Gov. Sam Brownback, who called on lawmakers to create "a culture of life" after he took office in January 2011. Supporters of the insurance restrictions contended that people who oppose abortion shouldn't be forced to pay for such coverage in a general health plan.
In her ruling, Robinson said the U.S. Supreme Court had already made clear that the undue burden standard is the appropriate means of reconciling the state's interest in potential human life with the woman's "constitutionally protected liberty" to have an abortion. However, she noted that the high court has not yet fully clarified how to consider an abortion-related challenge under an equal protection theory, one of the key claims in the ACLU's lawsuit.
Robinson rejected the state's request for a partial judgment on its behalf, concluding that it must be determined at trial whether the "purpose or effect" of the Kansas law is to create an undue burden on the right to abortion.

ADF Alliance Alert » news from the frontlines of the culture war: Federal judge throws out Louisiana’s abortion provider liability law

2012-03-30T23:18:00.001-07:00

ADF Alliance Alert » news from the frontlines of the culture war

ADF Alliance Alert » news from the frontlines of the culture war: Obamacare Puts Roberts in Crucible; Chief Justices Maneuver to Shape History and Court’s Reputation

2012-03-30T23:17:00.003-07:00

ADF Alliance Alert » news from the frontlines of the culture war

ADF Alliance Alert » news from the frontlines of the culture war: Campaign to intimidate SCOTUS into upholding Obamacare underway?

2012-03-30T23:17:00.001-07:00

ADF Alliance Alert » news from the frontlines of the culture war