Tuesday, October 13, 2009

Michael Sean Winters' Whopper

The Hyde Amendment is nearly as settled law as is Roe,” Winters writes today over at NCR. You can go there to see the full context of the remark. I’m not interested in entering the specific argument over a public option. Rather, I’d like to point out that in the service of his political policy preferences Winters is capable of the most enormous whopper.

Here is what I’m certain Mr. Winters knows about the relative weight of Hyde versus Roe.

Roe v Wade is a Supreme Court decision. It supersedes and invalidates all existing or future democratically or legislatively enacted laws which the Court itself deems in conflict with it.

Overturning or even modifying Roe would require an amendment to the Constitution. To pass a Constitutional Amendment requires the approval of two-thirds of a quorum of both the House and Senate followed by ratification of three-fourths of the States.

The Supreme Court itself is the only other agent which can overturn or change Roe. That would require an alteration of the membership of the Court in a way one party is resolutely opposed to and the other has only unreliably attempted. At any rate, it would require a different President and a different Senate committed to appointing anti-Roe Justices. Then they would have to wait around for a sufficient number of pro-Roe Justices to retire. Then you’d have to wait around to see if the Justices you nominated are really as anti-Roe as you hoped.

Roe is about as settled as settled law gets. It is as settled as the Constitution, because the Court has said it is the Constitution.

The Hyde Amendment on the other hand is about as ethereal a law as can be. It is a limitation amendment to an annual appropriations bill for the Department of Health and Human Services. It expires every single year and must be renewed, debated and passed each year to remain a law. The language of the amendment itself has also changed over the years. The only thing necessary for the Hyde Amendment to disappear is for it not to be renewed.

Also contrary to Mr. Winters’ claim, the purpose of the Hyde Amendment has been thwarted by courts. Since the Federal government has been barred by the Hyde Amendment from providing funds for most abortions through Medicaid, several courts have forced States to do the dirty work. Currently, thirteen states are required by courts to provide abortion funding for low-income women. Another five do so voluntarily.

For a good run down on the Hyde Amendment, as well as its complete irrelevancy to the public option debate, see this memo from Douglas Johnson at the NRLC.

UPDATE: Deal Hudson has background and update on this post over at InsideCatholic.