This is long, but hang in there, it should yield some good discussion.
In discussing Rudy’s assertion that abortion should be publically financed for poor women with a friend, we started discussing it from a legal perspective. This is interesting to me since I am majoring in Legal Studies, and pursuing a minor in Human Life Studies (basically, I study life issues, such as abortion, euthanasia, contraception, the family, etc). So this topic obviously interests me.
As far as we could think of, the only right the government has to pay for is Sixth Amendment — which asserts: “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” This right being provided and paid for by the government was decided by the Supreme Court case Gideon v. Wainwright in 1963. It was determined in this case that the right to counsel is a fundamental right that must be paid for by the government for those who cannot afford it.
Quick background and notes on the case:
Gideon was refused Counsel after he ” broken and entered a poolroom with intent to commit a misdemeanor.” He responded to the Court: “The United States Supreme Court says I am entitled to be represented by Counsel.” He was refused, and ended up being found guilty and sentanced for 5 years in Florida State prison. He appealed to Florida Supreme Court and was denied. The Court cited Betts v. Brady (1942). Gideon v. Wainwright sought to, according to Justice Black, allieviate “the problem of a defendant’s federal constitutional right to counsel in a state court” which “has been a continuing source of controversy and litigation in both state and federal courts.” Gideon was appointed certiorari (370 U.S. 908). Gideon was appointed counsel to represent him and the Court, according to Black, “requested both sides to discuss in their briefs and oral arguments the following: “Should this Court’s holding in Betts v. Brady, 316 U.S. 455 , be reconsidered?”
It was determined by the Court that Bettes v. Brady was wrong, and that the right to counsel is a fundamental right afforded by the Constitution, and therefore, counsel to the poor must be offered by and paid by the government. Quotes from the majority opinion written by Justice Black:
“We think the Court in Betts was wrong, however, in concluding that the Sixth Amendment’s guarantee of counsel is not one of these fundamental rights”
In returning to these old precedents, sounder we believe than the new, we but restore constitutional principles established to achieve a fair system of justice. Not only these precedents but also reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.
What am I getting at?
The right to counsel is the only right in the Constitution that has been deemed a fundamental right that the government has to pay for. In fact, the phrase “fundamental right” was used eight times in the opinion.
The only other thing the government pays for is property — but that is because it is the government’s right to take property away — as long as a just price is given — not because we have a Constitutional right to property.
So, FINALLY, I ask this — Does Rudy, a former lawyer, believe in the constitutional right in abortion so firmly that he believes that it is a fundamental right that the government should pay for this right — and that it should be a right that is even held above a citizen’s right to property?
Discuss… Perhaps I’ll turn this into my professors for extra credit…
April 4th, 2007 at 11:28 pm
Rights do not come from the state. Rights are things we’re born with that the state can take away from us. The Constitution ensures that certain rights can never be taken away from us by our fellow citizens or our elected representatives. As such, the Constitution doesn’t GIVE us rights. The Constitution tells the state that it cannot TAKE certain rights away from us.
This is why it’s absurd to suggest that the state should have to subsidize or pay for the rights that the Constitution protects from the tyranny of the majority. If that were the case, the state would have to subsidize my right to speech, my right to practice my religion, my right to keep and bear arms, etc. This country was founded on Lockean principles, an aspect of which was the belief in negative rights, such as the framework that I’ve described. Notions of positive rights, i.e., that the state must furnish you with your rights, doesn’t play well in right of center
America.
Knowing what I know about Rudy, I can’t imagine that he is somehow a closet continental European. I think it’s more likely that Rudy was using this reasoning to justify his past support for abortion funding, which he, like most NYers, thought was good public policy. That’s why I just wish he’d stop making excuses for these past positions, as the excuses end up doing more harm than just agreeing to disagree. Rudy should just say that abortion funding, like gun laws, were supported by the majority in New York but may not be in Montana, and so he’s going to keep the feds out of it. If he had said that, we’d all be talking about the new Die Hard movie that’s coming out this summer right now.
April 4th, 2007 at 11:33 pm
DaveG, I like your assertion on the Constitution, but what Rudy is saying is that he STILL supports taxpayer funding for abortion. He is not making excuses for why he PREVIOUSLY supported it, but he was explaining why he STILL supports it. With Rudy in power with a pro-abortion majority, I can’t imagine how much what the pro-life movement has accomplished would be destroyed.
April 4th, 2007 at 11:55 pm
Someone else on another site said that the Supreme Court rejected the idea that the government has to pay for abortions back in 1977. Rudy seems to be arguing that from a policy standpoint, abortions should be accorded some special status relative to other rights and subsidized by the federal government. I guess.
April 5th, 2007 at 12:01 am
Yep, and that was a very liberal court. I think I saw that over at the American Spectator blog. Rudy is advocating something even the pro-Roe court did not agree with.
April 5th, 2007 at 12:29 am
Billy, the bottom line is that Mayor Giuliani is basically right as a matter of current law, though the public policy and future judicial adjudication of this issue he may be advocating will be anathema to most conservatives. But to show why requires a bunch of constitutional law that readers may or may not be bored with, though it is required to properly address the issue.
You need to be careful using the term “fundamental right” in a legal sense absent having been to law school yet and studying it in that context. The term has fairly strict meaning constitutionally under the law, applying principles of equal protection and substantive due process, and, of course, constitutional law requires studying U.S. Supreme Court cases in addition to the words of the Constitution because the latter document speaks through those cases, as you properly imply.
Your use of the term “fundamental right” with respect to the Sixth Amendment right to counsel and Fifth Amendment takings clause is risky because, again, “fundamental right” is usually (despite its existence in the Gideon opinion) reserved for cases involving rights implied but not stated in the Constitution under substantive due process (which abortion falls under) or equal protection, where a specific legal test or level of legal scrutiny is applied to determine if the statute in question is constitutional. Sure, you can argue that the right to bear arms under the Second Amendment is a “fundamental right,” but that is not normally the term judges and lawyers would use in describing that right because such a right is explicitly expressed in the Constitution and does not come under the rubric of implied rights under substantive due process or equal protection.
In addition, as you will see, “fundamental rights,” as used typically under substantive due process and equal protection jurisprudence, do not require the government to pay for them in order to exist.
Here is some of the technical legal mumbo jumbo, for those who are still with us.
While “fundamental rights” are usually those implied constitutionally that are tested under strict scrutiny (the government has the burden and the law is upheld if it is necessary to achieve a compelling government interest and is the least restrictive alternative available) as opposed to tested under rational basis (where the party challenging the law has the burden and the law is upheld if it is rationally related to a legitimate government interest) or tested under intermediate scrutiny (where the government has the burden and the law is upheld if it is substantially related to an important government purpose and is narrowly tailored) – abortion (Planned Parenthood v. Casey) under the undue burden test created in the case (which is neither rational basis, intermediate scrutiny, or strict scrutiny but something new and different and unique in applying to no other rights) and the right to private consensual homosexual activity (Lawrence v. Texas, where no legal test is provided) and the right to refuse medical treatment (Cruzan v. Director, Missouri Department of Health, where no legal test is given) have arguably been made “fundamental rights” by the United States Supreme Court (SCOTUS) in its substantive due process jurisprudence.
Those rights that have been deemed fundamental by the SCOTUS under strict scrutiny include: the right to marry (as a matter of substantive due process), the right to procreate (as a matter of substantive due process), the right to custody of children (as a matter of substantive due process), the right to keep family together (as a matter of substantive due process), the right to control the raising of your children (as a matter of substantive due process), the right to purchase and use contraceptives (as a matter of substantive due process), the right to travel (as a matter of equal protection), the right to vote (as a matter of equal protection), freedom of speech (under the First Amendment), freedom of association (under the First Amendment), and free exercise of religion (under the First Amendment) – though the last five are not absolute and do have limits.
By the way, the right to practice a trade or profession, the right to physician-assisted suicide, and the right to education are rights that litigants have sued to make fundamental, but the SCOTUS has deemed them not to be fundamental and subject to the rational basis test (in which the statute is almost always found constitutional because it is so easy to determine that it is a legitimate function of government).
So, yes, Mayor Giuliani is objectively correct that for now abortion is a “fundamental right” protected by the Constitution (though under Casey it may be regulated to some degree and thus the right is not absolute). And, as a legal matter, the question is whether the progeny of cases from Roe to Casey should be overturned because they were wrongly decided? Some may say they were not wrongly decided and should remain the law; some may say they were wrongly decided and should be overturned; and some may say they were wrongly decided but as a matter of stare decisis should not be overturned because they have been the law of the land so long.
But the SCOTUS has never implied that even though abortion is a “fundamental right” that the government need pay for it. In fact, the SCOTUS has upheld the constitutionality of the Hyde Amendment, which prevents the federal government from funding abortions.
So, whether or not abortions should be paid for by the government is a policy decision of the Congress and not a constitutional decision. The SCOTUS has ruled that the Congress may prevent the federal government from funding abortion, even though the right to one is now “fundamental” and prtoected by the Consitution. Obviously Congress could decide to federally fund abortions and that would be constitutional, as well.
You are misapplying the term “fundamental right” as commonly used in constitutional jurisprudence, failing to understand that legally abortion is a “fundamental right” under current law, and implying incorrectly that the government must pay for “fundamental rights” as a matter of law.
Once you take Constitutional Law in law school, this will all become much clearer.
The Mayor and all presidential candidates have two questions they must answer in this area that we should be clear on – one as a matter of law and the other as a matter of public policy: Should abortion remain a “fundamental right” under law by having the SCOTUS uphold the Roe and Casey cases (as either correctly decided or as a matter of stare decisis)? Should the federal government pay for abortions (assuming they either remain legal as a “fundamental right” under Roe and Casey or are made legal by individual states if the SCOTUS overturns Roe and Casey) as a matter of public policy and rescind the Hyde Amendment?
April 5th, 2007 at 1:00 am
DaveG,
There is considerable overlap between your view and mine. But we land in different places. Thats interesting.
“Rights do not come from the state.” [and the argument you derive from that]
I agree. Except the last sentence – that I would rephrase:
“The Constitution tells the state that it cannot TAKE certain rights away from us.”
Actually, most of the Constituion tells the state that it CAN TAKE certain right from us – certain limited rights.
The Bill of Rights was an add on the Constitution – one that Madison originally opposed, but he agreed in the end – the argument being that certain really important rights needed extra explicit protection. Madison thought that this extra protection was not necessary, given the way the Constitution itself was laid out (i.e. in the way you describe, with my slight modification).
Madison in fact thought that a BoR would be actually dangerous – since future generations might conclude that the only rights that citizens had were those explicitly laid out in the 8 amendements. Thats why he only eventually agreed to the BoR provided that the ninth and tenth amendments were added.
Which brings me to one other point I disagree with you on.
“Notions of positive rights, i.e., that the state must furnish you with your rights, doesn’t play well in right of center America.”
Perhaps that would be true if conservatives had any sense of logic. But in fact, the whole thrust of the modern conservative war on “librul judges” is based on the argument that those judges are running around recognizing rights that are not in the Constitution. The implication being of course, that we the people dont have a right unless it is made explicit in the Constitution. So sorry, the notion that rights come from the state is fundamental to modern conservative rhetoric.
As for Guiliani – I would have to investigate the contours of his position in greater depth in order to fully understand his point, but it seems to me that what he is not some freestanding right to a paid abortion, but rather that for those women who are already recieving government subsidized health care, it would not be proper for the government to step in and decide not to fund an abortion. To do so would require the government to single out one specific medical procedure for exclusion, but that procedure has already been determined to be one that a woman has a constitutionally protected right to exercise.
April 5th, 2007 at 5:43 am
Hey after this weeks ruling where the supreme court ruled that the EPA must act on so called “Global Warming..” (What a joke of a ruling). To court telling the Executive they HAVE to do something.
They will rule next you HAVE to fund abortions. Health And Human Services will be forced to do so.
April 5th, 2007 at 6:43 am
Republius,
I’m not a lawyer, but I have studied privacy cases somewhat extensively, and I’m not quite sure that abortion was made a fundamental right under Casey (though it surely is under Roe). Indeed, the joint opinion seems to take great care to avoid calling abortion specifically a fundamental right. And for good reason. As Scalia points out in his dissent, the notion that fundamental rights can be directly regulated so long as they don’t impose an undue burden, is positively indefensible.
Tano,
Madison did oppose the Bill of Rights initially because he felt that enumerating rights might lead some to believe that only those rights explicitly mentioned in the constitution are protected. But that is not a position that any current judge on the court, or originalists more generally, has ever taken. Of course there are rights which go beyond those explicitly mentioned in the constitution. Indeed, the 9th amendment was meant to be a disclaimer. That does not, however, establish the quite different principle that liberals have championed; that the 9th amendment ought to be read as a charter for action. There were certain rights that the framers felt were important, and which were generally protected at common law, which the constitution does not enumerate. That’s what the ninth amendment was intended to capture. It had absolutely nothing to do with new rights which might or might not, appear out of the ether, at the whims of an unelected batch of men and women in black robes. I suggest you look up the Madison’s thoughts on an imperial judiciary if you’re so fond of his intentions (though no doubt you will willfully misinterpret that as well).
April 5th, 2007 at 8:13 am
Republius,
You said:
Sorry, bud, you’re pretty much dead wrong on this. If, as Rudy says, abortion is a constitutional right that the government has to pay for if you can’t afford it, then the Hyde Amendment (which has been subjected to numerous court challenges along that very line) would have been declared unconstitutional 30 years ago. As Billy points out in his piece, the only Constitutional right that the SCOTUS has said that the government has to provide the indigent is the right to counsel, and they only have to do that if they’re attempting to take away the life/liberty of the indigent (IOW, if you want to sue McDonald’s for selling you a bogus hamburger, the state doesn’t have to provide you a lawyer no matter how poor you are).
Rudy’s argument is clearly something new, and isn’t even close to being correct as a matter of current law.
April 5th, 2007 at 9:02 am
I think a lot of people here need to re-read Harris v McRae:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=448&invol=297
April 5th, 2007 at 9:07 am
Republius,
One more follow-up: as I read your post, you are a former law student, yes? I’m guessing that your Con Law II professor did not cover Maher v. Roe and Harris v. McRae. From Harris, which declared that the government did not even have to fund medically necessary abortions:
April 5th, 2007 at 9:08 am
Also, Maher v. Roe: http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=volpage&court=us&vol=432&page=473
April 5th, 2007 at 11:10 am
I have torn up my TEAMRUDY card over this. I had planned to be a donor & part of his campaign but am now searching for another candidate.
April 5th, 2007 at 12:10 pm
Leon and Matt, I agree that abortion is not a “fundamental right” that the government has to pay for in order to protect. If Mayor Giuliani is saying this (and it appears he is to Dana Bash of CNN) – that you cannot have a constitutional “fundamental right” unless the government pays for it – then I agree he is as wrong legally as he could be. I know of no precedent in law that makes this claim; and as Leon points out, if such was the law as Giuliani is now implying then the Hyde Amendment would be unconstitutional, which the SCOTUS has specifically ruled the opposite of.
I would also add that as a matter of public policy Mayor Giuliani is way out in left field at Yankee Stadium by supporting federal funding of abortion. He is fatally wounding his presidential campaign by taking this position. Taxpayers will not stand for the government subsidizing a procedure that so many citizens believe is morally indefensible, tantamount to murder, and an abrogation of the rights the fetus should have.
But as a matter of constitutional law, abortion does rise to the level of a “fundamental right” that the government must protect (even if it need not pay for it) in the sense of allowing the procedure to remain legal, at least prior to fetus viability (under Casey), even though the undue burden test applies rather than strict scrutiny.
I have recently opined that the Mayor’s call for “strict constructionist” judges is also a mistake. As Justice Scalia opines, you want textualists who will construe legal texts reasonably (not strictly). The Mayor should have Ted Olson give him a refresher course in constitutional law, it appears.
I guess Mayor Giuliani could only act like a conservative for so long. The bloom is off the rose, and he will now be easy to caricature as a liberal Republican, which will cost him any chance at the nomination.
When I claimed the Mayor was correct as a matter of law, I was interpreting his remarks to mean that Roe and Casey make abortion a “fundamental right” under law. Period. But now that I see the Mayor is taking the next step and claiming that “fundamental rights” must be paid for by the government for those who cannot afford them, I would agree that he is wrong if he claims this is the law and certainly wrong if he is advocating this as policy.
As a campaign process matter, the Giuliani effort is also fatally wounded in the sense that quite clearly the Mayor is not listening to or communicating with the advisers he has brought on board for this campaign. Ted Olson would never support such legal implications as the Mayor is making. The Mayor is calling for public funding of abortion while Bill Simon, Jr., is telling the press that the Mayor supports the Hyde Amendment. And I have a hard time believing Chris Henick would countenance this position on public funding of abortion or recommend the Barbara Walters interview with his wife. Successful candidates have disciplined messages, and the Mayor is flying by the seat of his pants.
This is a great example of why I am standing back to wait before supporting a specific candidate. It is important to see what happens when these folks are vetted and put under media scrutiny and go toe-to-toe with other GOP opponents. Mayor Giuliani looks like a much different candidate today than he did a month ago, and the change is not for the better.
Finally, please Giuliani supporters, don’t cite current polls in order to make the claim that the Mayor is still the strongest Republican presidential candidate. First, there is a lag effect with these issues, and we already see slippage due to the emergence of Fred Thompson and so it is only a matter of time before the Mayor’s emphatic call for public funding of abortion further erodes his support. Second, it is simple intuitively to understand that the Mayor would not put all of these extra states into play in a general election as the GOP nominee if conservatives stay home or take a pass on the presidential line of their ballot (which they will) because of his intractably liberal position on abortion that is now being exposed. The rational thing to do, it seems to me, is admit, like DaveG and David B have, that the Mayor has hurt himself badly this week.
April 5th, 2007 at 12:58 pm
My take on rudy, social issues and the right wing of the GOP. Now, please dont all get in a hissy fit over my lack of encyclopedic writing skills.
Rudy is popular, because of his accomplishments as mayor and 9-11 after that. Now given his socially “moderate” views on abortion and gay rights, one would expect he would get a lot of flack from the right wing of the party. There is actually this “void” as to why in the heck he is still so popular. I will tell you what it is: romance. Rudy has that certain human, feisty, realness about him that NONE – - ABSOLUTELY NONE of the other republican candidates have. THAT is why people are overlooking his not-so-good points.
April 5th, 2007 at 1:07 pm
KT,
Mark down the date, I agree with you.
Rudy is popular with people because of their romantic conception of him as the NYC guy who did mortal combat cage fighting with Osama bin Laden himself! However, that is not why people are overlooking his not-so-good points. The romanticism is why people even know who he is in the first place. His not-so-good points are largely UNKNOWN, and once people get a look at what’s under the covers they are going to think twice. Several polls have already been done to this point, showing Rudy loses significant conservative support when people find out about the personal life and social liberalism.
April 5th, 2007 at 1:43 pm
We’ll see… he seems to have the teflon thing going….like Reagan and Clinton
April 5th, 2007 at 2:08 pm
Matt,
I find your word choice quite strange.
You refer to an “imperial” judiciary, recognizing new rights.
The term “imperial” usually refers to persons or institutions that seek to aggrandize power unto themselves.
What we are dealing with here is an institution, the SC, which is recognizing the power of individuals, at the expense of the state. Nothing could be further from “imperial” than that.
It is the conservative justices, who give great scope to the power of government to interfere with the personal lives of individuals, who are “imperialistic”.