Hiltzik: Anti-Obamacare laws are upending abortion bans
The law of unintended consequences is never as powerful as when those consequences originate from a hasty, ill-considered action.
Conservative forces in Ohio and Wyoming are learning that the hard way.
In those states, judges have blocked antiabortion laws enacted in the wake of the Supreme Court’s egregious Dobbs decision overturning federal abortion rights by citing partisan laws enacted to undermine the Affordable Care Act in 2011 and 2012.
Those anti-Obamacare laws codified their citizens’ right to choose their own health insurance and health care.
Their goal was to counteract the Affordable Care Act’s mandate that individuals carry health insurance. The laws were written expansively, however, to incorporate guarantees of unrestricted access to health care.
“The laws were passed saying people have a health care choice,” says David S. Cohen, an expert on abortion law at Drexel University. “They didn’t specify ‘with respect to health insurance plans,’ but just used general wording. When you use wording that talks about choice in health care, it’s a pretty natural fit with respect to abortion care.”
Ohio’s law — the Health Care Freedom Act, enacted as a constitutional amendment in a 2011 ballot referendum — bars the enactment of any state or local law that prohibits, among other things, “the purchase or sale of health care.”
The Wyoming constitutional amendment was crafted by legislators and passed by voters last year, as Quinn Yeargain, a law professor at Widener University in Harrisburg, Pennsylvania, recently reported at the online magazine Bolts. The amendment says that “the right to make health care decisions is reserved to the citizens of the state of Wyoming,” and that “this state shall act to preserve these rights from undue governmental infringement.”
In both states, judges took the constitutional verbiage for its plain meaning.
In blocking Wyoming’s antiabortion law with a temporary restraining order last week, Teton County District Judge Melissa Owens reinforced a ruling she issued in August, finding that the law violated the constitutional provision that “unambiguously provides all competent Wyoming citizens with the right to make their own health care decisions.”
She found that “a decision to have an abortion is a health care decision.”
The Legislature tried to circumvent her ruling by enacting a second law declaring that “abortion ... is not health care.” Owens rejected that assertion and enjoined the new law, which was to take effect Sunday.
In the Ohio case, Judge Christian A. Jenkins issued a preliminary injunction in October blocking the antiabortion law as a violation of the Healthcare Freedom Act, which he found protects citizens’ “liberty and personal autonomy” and applies to Ohioans’ “right to make decisions about their own bodies — including the fundamental right to make a decision as private and central to a person’s bodily integrity as the decision to have an abortion.”
State officials are appealing Jenkins’ ruling to the Ohio Supreme Court on procedural grounds. But it has been left standing in the meantime.
These cases are part of a movement by abortion rights advocates to use state laws and constitutional protections to fight antiabortion laws.
“The idea is that the U.S. Supreme Court’s interpretation of rights under the U.S. Constitution acts as a floor, not a ceiling,” says Rebecca Kendis, an expert on reproductive rights at Case Western School of Law in Cleveland and a member of the legal team challenging the Ohio antiabortion law.
Many state constitutional protections are more explicit and far-reaching than those in the U.S. Constitution, Kendis told me. Some have no counterpart in the U.S. Constitution, which can immunize them from U.S. Supreme Court decisions.
“There are certain provisions for religious freedom, due process, explicit language mentioning privacy,” Kendis says. Every state constitution is unique, “warranting a push to look to our state constitutions as a source of strong individual protections.”
These issues seldom came up before the Dobbs opinion because a federal right to abortion was guaranteed in the Supreme Court’s 1973 decision in Roe v. Wade.
Indeed, high courts in some of the reddest of red states have blocked antiabortion laws based on statutes that existed long before the court handed down its opinion in Dobbs v. Jackson Women’s Health Organization in June, invalidating Roe v. Wade.
On March 21, the Oklahoma Supreme Court found 5 to 4 that the state Constitution “creates an inherent right of a pregnant woman to terminate a pregnancy when necessary to preserve her life.”
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