November 21, 2007

Romney, the Courts, and the Constitutions: Part 1 — Abortion Coverage in RomneyCare

Yesterday was a relatively light posting day, at least in terms of verbosity, because I’ve been watching a fascinating and important e-mail debate unfold primarily between Gregg Jackson and Kevin Whelan, the co-hosts of Pundit Review Radio and the Pundit Review blog. Along the way, there has been some input from myself and at least a couple of other more knowledgeable folks.

The subjects started out being Mitt Romney’s inclusion of abortion coverage in Commonwealth Care, aka RomneyCare, and Romney’s ability or inability to act on the Massachusetts court’s Goodridge ruling “legalizing” same-sex marriage. In the process of vetting these two matters, broader issues about the relationships between the branches of government have come to the fore.

The broader issues strike me as awfully important, and I’ll try to develop them.

Here are the related posts:

  • Nov. 20 — Pundit Review (PR; Gregg); Kevin, The Constitution Trumps Opinions of Lawrence Tribe and the Boston Globe
  • Nov. 20 — PR (Kevin); Defending Mitt Romney, part 2
  • Nov. 20 — PR (Gregg); Mitt Romney, Not the Mass Supreme Judicial Court, Imposed Gay Marriage on The Citizens of Massachusetts
  • Nov. 17 — PR (Gregg) No Kevin, I Have Portrayed Romney Fairly and Correctly. He is a Liberal Trying to Portray Himself as a Conservative
  • Nov. 16 — PR (Kevin) — Here’s a response to your Romney posts
  • Nov. 15 — Townhall (Gregg); Romniacs Ignore Evidence Against Their Messiah
  • Nov. 9 — Townhall (Gregg); Romney Secrets The Media Are Hiding From You
  • Jan. 13, 2007 — Robert Paine; Same-sex marriage licenses are null & void
  • June 17, 2006 — Robert Paine; The Governor’s New Clothes; How Mitt Romney Brought Same-Sex Marriage To America (index to a 9-part comprehensive treatment of the subject)

Along the way, there has also been input from John Haskins, who wrote a six-part series on what he sees as the unconstitutionality of the Bay State’s same-sex marriage ruling. If I left anyone else out, I apologize.

Although I can encourage readers enough to dig into the detail, I know that in the real world many, if not most, won’t. Also, readers obviously haven’t seen the e-mails that have flown back and forth during all of this.

I’ll try to summarize where I believe things stand on these matters, with the obvious disclaimer that I don’t know Massachusetts law inside and out.

The bedrock issue is how much power the courts have.

Haskins believes that, at least in Massachusetts, the courts can only advise. I’m not kidding. He cites as precedent how slavery actually became illegal in the state.

When the Supreme Judicial Court (SJC) of Massachusetts declared the practice of slavery to be a violation of the state’s constitution, it only had the power to set free one slave, the slave on whose behalf legal action was brought. The only way to make slavery illegal, as opposed to “merely” unconstitutional, was for the legislature to pass, and the governor to sign, a law proscribing slavery. Until that happened, the only way for an individual slave to be freed was for him or her to bring a new legal action. If the legislature had dithered for 100 years (I don’t know how long it actually took; my guess is not long), the case-by-case approach would have been the only one available.

Haskins is clearly historically correct.

There is no reason to believe that constitutional conditions in Massachusetts have changed since.

Here is what that means to the issues at hand.

The first is the presence of abortion in RomneyCare.

In 1981 and 1997, the SJC “ruled” (i.e., based on the above, “stated its belief”) that a state-subsidized plan must offer “Medically Necessary Abortions.”

But wait a minute. Why was the 1997 “ruling” necessary? Is it because, as I suspect, the legislature never passed an actual law requiring such coverage in the intervening 16 years, and the Executive Branch and bureaucracy “just did it”? If so, and if no actual law has gone on the books in the 10 years since the second “ruling,” there is no legal requirement to offer these services, and there will not be until the Legislature passes a real law, signed by the Governor, containing such a mandate. Without such an actual law (regulations written by bureaucrats don’t count), the only recourse for Medicaid patients requesting abortions should have been individual court actions. If the legislature is and has been too lazy, or too afraid, to get off its collective butt to pass a law the SJC has “ruled” is needed, too bad, so sad. Those who are impatient with all of this and want legislators who will actually do something to pass such laws have always had recourse. They’re known as elections.

Conversely (and I’ll admit to having difficulty with this), if the legislature after legislature continually refuses to pass a law the SJC has “ruled” (stated its belief) is needed — too bad, so sad. What is clearly NOT permissible is carrying out an SJC ruling in the absence of enabling legislation.

If a specific law authorizing government-subsidized abortions has never been passed, it seems inescapable that had Mitt Romney wished, especially given his alleged prolife “epiphany” BEFORE he signed the law, he could have based on a proper application of law, he should have claimed that the state had been unnecessarily paying for or subsidizing Medicaid-related abortions for at least a quarter-century, and that the state had no obligation to expand the service to those newly-covered in RomneyCare, without language in the law specifically authorizing it.

That appears to leave three choices:

  1. If that authorizing language was placed into RomneyCare and the history is as I believe it is, Mitt Romney, by signing the RomneyCare law, in effect legalized government-subsidized abortion in Massachusetts for the first time. (UPDATE: This is indeed the correct conclusion.)
  2. If there was no authorizing language in RomneyCare for government-subsidized abortion, then the state has been voluntarily and illegally (it remains illegal without an authorizing law) engaging in the practice for over a quarter-century, and Mitt Romney, without legislative permission, allowed that practice to expand.
  3. This is the most “benign,” but I also believe most unlikely, possibility — If I am wrong, and government-subsidized abortion was already the law in Massachusetts (not the accepted practice, but authorized in an actual law), Mitt Romney, post-”epiphany,” considered the expansion of government-subsidized abortion as a necessary price to pay for covering more uninsured individuals and families in the state.

Commenters or e-mailers can tell me whether it’s Door Number 1, 2, or 3.

Part 2 covers the same-sex marriage issue. Part 3 will be about potential US Constitutional issues, and will appear on Friday.



  1. Tom;

    There is a lot to digest here; I am looking forward to the rest.

    Comment by Brian — November 21, 2007 @ 4:33 pm

  2. [...] Our friend and past guest on our radio show Tom Blumer, proprietor of the award winning, Bizzy Blog, has been intimately involved in our ongoing discussion on the radio and on this blog with regard to Mitt Romney’s candidacy and specifically as it pertains to: [...]

    Pingback by Pundit Review » Blog Archive » Bizzy Blog Weighs in on the Great Romney Debate — November 21, 2007 @ 4:37 pm

  3. Tom:

    Neither door puts the “epiphanied-Mitt” in a good light.

    Very interesting post. I look forward to part 2. Then again, I personally have never considered Mitt a viable candidate worthy of doing battle with the Clinton Campaign Machine

    Comment by Gary — November 21, 2007 @ 5:02 pm

  4. Tom,

    Nice work here, really good post.


    Comment by Kevin — November 21, 2007 @ 7:06 pm

  5. #1 and #4, thankszzzzzz.

    Comment by TBlumer — November 21, 2007 @ 9:12 pm

  6. article dated December 14, 2006.

    it stated the following: My position has changed and I have acknowledged that. How that came about is that several years ago, in the course of the stem-cell-research debate I met with a pair of experts from Harvard…

    Then he stated: …And from that point forward, I said to the people of Massachusetts, “I will continue to honor what I pledged to you, but I prefer to call myself pro-life.” The state of Massachusetts is a pro-choice state and when I campaigned for governor I said that I would not change the law on abortion.

    So he was a self professed Pro-lifer years before in 2002 when he signed RomneyCare into Law in 2006!

    Comment by dscott — November 26, 2007 @ 4:25 pm

  7. I believe someone needs to confirm my conclusions about RomneyCare… The purpose of RomneyCare was three-fold:

    1. Provide abortion on demand services affordable ($50) to the poor, subsidized by the taxpayer (in this case the insurance premium) as mandated by their coverage benefits. – confirmed

    2. Balance the Taxachuettes fiscal budget by shoving off the Medicaid cost directly onto the taxpayer in the form of insurance premiums. All residents of Taxachuettes are required to buy health insurance, those who meet the means test are subsidized by the premiums of those who don’t qualify. Hence no State tax money goes to pay for medical care for the poor, the premium payers are paying it. So what happened to the money the State of Taxachuettes no longer has to spend on indigent care/Medicaid?????????????????? Ding, ding, ding, ding, you got it, chaching! It stays with the State treasury and covers any short fall in budget funding. Now you see why politicians are looking at RomneyCare, it screws the taxpayer twice and they didn’t even realize it.

    3. All illegal aliens are covered under RomneyCare, they must buy health insurance as well. Guess who gets to subsidize their policies, ding, ding, ding, ding. If you said the suckers of Taxachuettes, you would be right. Oh, the gift that keeps on giving….

    Comment by dscott — November 26, 2007 @ 4:29 pm

  8. #7, we may need to develop these thoughts a bit.

    Comment by TBlumer — November 26, 2007 @ 10:26 pm

  9. Who are some point people on RomneyCare who can speak with authority on the subject of what the State did with the money they used to spend on Medicaid????

    Since Medicaid is a Federal program requiring a certain percentage of Federal to State dollars to provide health care to the poor, either 1. Taxachuettes got a waiver to use federal money to subsidize health insurance policies for the poor, which means they were also obligated to put in money themselves thus negating the need of those who have health insurance to subsidize those who can’t pay or 2. Taxachuettes essentially cancelled Medicaid, no longer requiring Federal and State dollars since those with health insurance were required by the law to subsidize those who can not pay via their premiums.

    If it is #2, then Taxachuettes pockets all the money they would have spent on Medicaid which would have 1. given them a surplus, 2. given the reduction in State taxes to it’s citizens or 3. they kept the money and turned around to expand other government spending to balance the budget.

    Comment by dscott — November 27, 2007 @ 8:28 am

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