Debate over the constitutionality of enforcing a woman’s right to choose arose again as news of the lawsuit filed against the Bush administration last month by Attorney General Bill Lockyer and state school Superintendent Jack O’Connell hit the press.
The plaintiffs sued because they believe that the anti-abortion amendment tied to the new federal spending bill violates women’s rights by creating a conscience clause to protect the doctors and hospitals that choose not to provide abortions, even in emergencies in which the woman’s life or health is at stake.
The Weldon amendment, which was signed into law by President Bush on Dec. 8, threatens fines of $49 billion in federal funds if California continues to require doctors and hospitals to provide abortions in emergency situations.
Supporters of the amendment cite the unconstitutionality of the 1973 decision of Roe v. Wade.
“Abortion is not constitutionally protected. Justices in the 1973 case were simply creating law and writing a new part of the constitution,” said Joe Scheidler, National Director for the Pro-Life Action League. “Justices are not supposed to create law. They are supposed to interpret it.”
Opponents say that the law exceeds limits placed on Congressional spending power and violates the 10th Amendment, which provides for state sovereignty.
“This will enforce a gag rule on doctors and nurses. This is their way of denying women their full access to the health care they deserve,” said Amy Everitt, State Director for NARAL Pro-Choice California.
“If California exercised its sovereignty and tried to enforce the law that requires health care providers to perform emergency services when needed, we would face the loss of what could potentially be almost 50 billion dollars,” said Tom Dresslar, spokesperson for the office of Attorney General Bill Lockyer.
The suit claims that the amendment is too widespread because it denies funding to numerous programs unrelated to abortion and health care, such as education and labor funds, and programs that help to provide unemployment insurance and promote school safety.
Before the suit can go any further, the defendants, Elaine Chao, Secretary of Labor, Tommy Thompson, Secretary of Health and Human Services, and Margaret Spellings, Secretary of Education, must respond to the complaint filed by Lockyer and O’Connell. There is no expected date for their course of action.
By random draw, the suit was assigned to U.S. District Judge Jeffrey White, Bush’s only appointee to the San Francisco court.
“We wouldn’t expect that to have an effect one way or another. We would hope that Judge White would come to a decision based on law and on facts. And we think the law and facts are on our side,” said Dresslar. Scheidler disagrees, stating that White’s assignment “should help” to defeat the plaintiffs.