Monday, June 24, 2024

Max’s House of Incorrect Con Law

Max has followed SB113 pretty closely, especially the fallout from Rep. Jeff Wardlaw’s (D-8) amendment to the bill, which resulted in the bill being tabled as possibly unconstitutional.

Reading Max’s coverage, however, this jumped out at me:

Abortion opponents contend allowing the private coverage runs afoul of the state constitutional limit on public funding of abortions except to save a mother’s life. But opponents of the bill said there are ample protections in federal and state law to insure that no public money supports private abortion coverage in insurance exchanges established under the new federal health care reform law. Insurance companies would be required to pay for abortions only with dollars contributed in private premiums. If this is correct — and no testimony was offered to disprove it — the amendment clearly was constitutional.

(Emphasis added.)

As the kids say on the Twitter, “smdh.”

This is just wrong because it’s conflating two separate issues.  It is entirely possible that federal regulations in the healthcare reform bill would make it so that certain public money would (or would not) be used for abortions, even if Rep. Wardlaw’s amendment was added.  This has zero bearing on whether the amendment to the bill is constitutional under the state constitution.

Quick overview:

Amend. 68 reads:

§ 1. Public funding. No public funds will be used to pay for any abortion, except to save the mother’s life.

§ 2. Public policy. The policy of Arkansas is to protect the life of every unborn child from conception until birth, to the extent permitted by the Federal Constitution.

§ 3. Effect of amendment. This amendment will not affect contraceptives or require an appropriation of public funds.

Rep. Wardlaw’s amendment to SB113 would allow private insurance companies to continue to cover abortion procedures in cases of rape and incest to the extent they currently do, even once those insurance companies are part of insurance exchanges under the healthcare reform law.  This language would be in keeping with the Hyde Amendment, which was extended to the healthcare reform law by Executive Order on March 24, 2010.

All that said, regardless of whether Amendment 68 is trumped by the Hyde Amendment vis-a-vis federal funds, Rep. Wardlaw’s amendment is still unconstitutional because it directly conflicts with the language of Amendment 68 to the extent that both deal with state funds.  Which is to say, the Hyde Amendment may prevent states from prohibiting federal funds for abortions in cases of rape and incest, but it does not purport to ban state funds, which Amendment 68 clearly does.

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