Mandate Rationale? Try Checking Under the Penumbra

Back in 1965, Justice Douglas of the U.S. Supreme Court wrote for the majority in the Griswold case that the right to privacy, while not explicit in the U.S. Constitution, could be derived as an “emanation” within the “penumbra” of enumerated rights. (That’s his language, not mine.) Emanations and penumbras can of course be toxic, as we learned in ’73 when Roe was handed down, buttressed by Griswold’s reasoning.

Forty-seven years later, HHS Secretary Kathleen Sebelius is apparently all on board with penumbras. She was on Capitol Hill yesterday to face Congressional questioning. One bold soul asked her how she decided the HHS contraceptive-coverage mandate could square with religious liberty. Madam Secretary’s reply:

“Congressman, I’m not a lawyer and I don’t pretend to understand the nuances of the constitutional balancing tests […] I am not going to wade into constitutional law, I’m talking about the fact that we are implementing a law that was passed by the Congress, signed by the President, which directed our department to develop a package of preventive health services for women. We have done just that with the advice of the Institute of Medicine, and promulgated that rule.”

I am indebted to Calvin Freiburger (here) and his unbeatable commentary on that answer, published in Live Action News today:
“Note well that the combination of congressional votes, presidential signatures, and the opinion of the Institute of Medicine amount to somewhere between nada and zilch when it comes to constitutional law.”

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