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.”

How to Mount An Effective Counter-Demonstration

Our stalwart neighbors at PPNNE are excitedly tweeting about a rally in NH to be held Saturday: a Unite Against The War On Women Rally! (Exclamation point theirs.)

I am not going to call for a counter-demonstration. NH pro-lifers had one yesterday: the state senate passed a ban on partial-birth abortion – a bill that PPNNE fought tooth & nail from the day it was introduced. Yesterday’s vote was the fruit of a lot of hard work by a lot of people.

That’s my kind of demonstration.

Your move, Governor Lynch

Two pro-life bills were passed by the New Hampshire Senate today, and the sky didn’t fall. 

The NH Senate passed HB 1679 today on a straight party-line vote, agreeing with the House that it is not a good idea for New Hampshire to put out the welcome mat for practitioners who want to do late-term abortions by the “partial-birth” method, also known as D&X. Partial-birth abortion is as close to infanticide as can be managed. Banning the method saves no babies, and Roe is unscathed. Nevertheless, this is a momentous day. The New Hampshire legislature, for the first time since NH’s 19th-century abortion laws were repealed a few years ago, has said “no” to one abortion method.

A bill to collect abortion statistics (HB 1680) was amended and attenuated to the point where it now sets up a committee to study how to collect the stats. The House passed it, and the Senate today adopted it on a voice vote.

Three other bills fared less well in the Senate today, but got further this year than could have been hoped in earlier sessions. Women’s Right to Know (HB 1659, with a 24-hour waiting period before abortion) was killed by the Senate, but just hours later the House attached it as a nongermane amendment to another bill. That was fun. Not sure how the Senators will feel having it tossed back at them, but we’ll see. HB 1660, to stop abortions after 20 weeks of pregnancy, went to interim study. HB 228, the funding bill, was tabled.

Of course, WMUR tweeted “Senate blocks House-passed abortion bills.” No tweets about the passage of the partial-birth ban. New Hampshire’s news leader, I’m told …

Governor Lynch should weigh in on the two successful bills shortly. Place your bets.

Funding Vote Tomorrow: Any “Choice” Here?

Live and let live? Promote choice? Sure. Let’s start by saying that while abortion is legal, taxpayers shouldn’t foot the bill for it. We’ll see tomorrow if at least 13 senators can get behind that.

Whatever tomorrow’s outcome, HB 228 has been a triumph.

This bill would let pro-life New Hampshire residents keep their money away from abortion providers. Several sponsors, led by Rep. Warren Groen (R-Rochester), have kept the bill going since February 2011. Dogged persistence and some nimble legislative footwork have brought the bill through multiple hearings, delays, amendments, an attempt to kill it on the House floor, and finally House passage last January. Now it’s the Senate’s turn. The Health and Human Services committee voted to recommend the bill by the slimmest of margins (3-2).

The meat of the bill, as of today: “The department shall not enter into a contract with, or make a grant to, any entity that performs non-federally qualified abortions or maintains or operates a facility where non-federally qualified abortions are performed; provided that this paragraph shall not apply to any hospital.” So hospitals are exempt. The feds’ “qualified abortions” are exempt. No provider is singled out, although PPNNE is bitterly characterizing the bill as an attack on its business. The bill’s backers have time and time again been responsive to constructive suggestions.

State reps have started looking at the business models of abortion providers. They are questioning the statistics being tossed around by those providers (“…only 3 to 5 percent of our business is abortion,” says PPNNE’s lobbyist), which has helped to boost support for collecting statistics via HB 1680. In the House, reps were willing to push back against threats of litigation.

And while Planned Parenthood is not mentioned in the current version of the bill, PPNNE is sure acting like the bill is all about them. They warn darkly of a loss of federal funds and denial of “critical health services” if this bill passes.

Consider the source: PPNNE’s 2010 annual report indicates $3.1 million spent on administration; $822,000 on public policy, including the aforementioned lobbyist; $445,000 on marketing. And they warn of having to turn women away if HB 228 passes?

The senators are under pressure. PPNNE and NARAL Pro-Choice NH have ramped up their networks, and I expect to see lots of “Trust Women” and “I Stand With PP” stickers in the hall outside the Senate chamber tomorrow morning. $822,000 buys a lot of stickers. Do not expect a straight GOP/Dem split on this one (or any of the other pro-life bills on the calendar, with the possible exception of the stats bill).

When the dust has settled, regardless of the outcome, no one running for re-election next fall will be able to dodge fallout from this vote. That’s as it should be.

40 Days of Prayer? Bring It On

Here’s one for the annals of creative protest: Six Rivers Planned Parenthood of Eureka, California is having “40 Days of Prayer” hosted by “Clergy for Choice” (see details) in response to the nationwide success of the “40 Days for Life” campaigns (about which more here).

Pro-lifers on Twitter & Facebook have expressed dismay at this effort. I say bring it on. Prayer in my experience is a powerful and unpredictable phenomenon. The results are not always what the petitioner intends. And if the California event gets some pro-lifers indignant enough to get involved in the next 40 Days for Life campaign, so much the better.