Human Exceptionalism

An Interesting Question of Federalism and Politics

You will probably have to be a lawyer to enjoy this post: The American political system is fascinating. Our founders established checks and balances and divided sovereignties to prevent any single governmental body or institution from gaining too much power. As a consequence, we experience many political and legal flash points and power struggles, including often, between states and the federal government.

I bring this up because there is a legal case in California that strikes me as raising many of the same issues of federalism involved in the assisted suicide case, Gonzales v. Oregon and the medical marijuana cases. This time the surface issue is abortion. Apparently the Feds enacted a provision in a 2004 spending bill that, according to a story in the San Francisco Chronicle,“denies a wide range of federal funding to states that discriminate against any health provider, health maintenance organization or insurer that does not offer abortions or abortion referrals.” In other words, if doctor refuses to perform abortions and a state punishes the physician, the state can lose federal funding.

California has a law requiring all doctors “to perform abortions in an emergency in which childbirth would threaten the woman’s life or health.” If he or she refuses, presumably there could be state sanction–which would, in turn, risk the receipt of federal funds. So, the state sued, claiming among other arguments, that the federal law interferes with the state’s right to enforce its own statutes.

This was the same argument made by Oregon when it challenged an interpretation by Attorney General John Ashcroft that prescribing narcotics for use in suicide was an improper use of federally controlled substances. The Supreme Court struck the federal policy down as having been attempted in an improper manner. But it also ruled that if Congress passed such a law, it would be constitutional. The medical marijuana cases also ruled that the Feds have the right to enforce Congressionally enacted law, regardless of state statutes to the contrary.

In the abortion case, Congress did pass such a law. So, will the courts rule consistently with Gonzales and its medical marijuana rulings? I doubt it. There is a factual distinction in that women have a constitutional right to abortion, which is not true of assisted suicide or consuming marijuana for medicinal purposes. But it seems to me that the case does not really concern the right to abortion per se, but rather, the Feds’ right to enforce its own policy on a contentious issue when it conflicts with state law. In other words, it is one of our flash point power struggles.

I will be curious to see whether the ruling in this case is consistent with the MM cases and Gonzales. I am betting not. Legal rulings involving power struggles arising from cultural flash points tend, in my view, to generate result oriented decisions based in politics as much as in law. The politics of this case, particularly in the Ninth Circuit, favor California. Unless the court punts, I am betting on a ruling requiring enforcement of the federal law consistent with California’s statute. If so, it could lead to the Supreme Court.

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