Romney, the Courts, and the Constitutions: The Dam May Be Breaking

Finally, one of the other GOP presidential campaigns has caught on to what happened in Massachusetts while Objectively Unfit Mitt Romney was in charge — and on two fronts, no less.

Subsidized Abortion Services

Wednesday, the Fred Thompson campaign called attention to the subsidized abortion services included in Commonwealth Care, aka RomneyCare (bold is mine):

Thompson slams Romney on $50 abortions in Mass.
By David Lightman, McClatchy Newspapers

Fred Thompson escalated the Republican presidential candidates’ war over abortion Wednesday by tying former Massachusetts Gov. Mitt Romney to “$50 abortions in Massachusetts.”

Romney, the governor from 2003 until January, helped create Commonwealth Care, a state-run and subsidized program for low- and moderate-income people. The state helps determine what services are to be covered, and its list includes a provision in which women can get abortions for $50 co-payments.

The legislation also created a MassHealth payment policy advisory board that gave Planned Parenthood a seat, but not an anti-abortion group.

“Romney claims to be pro-life,” the Thompson campaign said in a statement. “But under his health care plan, Massachusetts residents now have access to taxpayer-funded abortions for $50.”

The Thompson statement also said that Romney had used his line-item veto authority to strike eight sections of the bill, but not the terms guaranteeing Planned Parenthood board representation, “and he did nothing to prohibit taxpayer-financed abortions as part of his plan.”

The Romney campaign objected. Spokesman Kevin Madden branded Thompson’s claims a “distortion,” saying that under state law, if Massachusetts is funding health care benefits, it can’t refuse abortion coverage.

I know it’s too much to expect of an Old Media reporter, but the “war” isn’t over abortion. It’s over whether constitutions mean anything any more.

Here’s a simple question for Kevin Madden: WHICH LAW?

This is important, because I believe that before RomneyCare there was NO law (i.e., a statute passed by the Legislature and signed by the governor) mandating government-subsidized abortion services. The reason I believe this is the case is that, as I understand it, the Massachusetts Supreme Judicial Court (SJC) “ruled” that subsidized abortion services “should” be provided under Medicaid two separate times, once in 1981 and another time in 1997, as a result of specific individual cases brought before it.

Note that I said “ruled” and “should.” That’s because the SJC cannot, repeat cannot, order the Legislature or the governor around under Massachusetts’ Constitution. They can only, repeat only, render their opinions on Constitutional matters when deciding specific individual cases before them. Two such individual cases are what they apparently decided in 1981 and 1997. Those decisions applied to those two cases, and those two cases only. To make the decisions applicable to the entire state requires an actual law.

(8 PM update for crystal clarity, via John Haskins – “Court rulings (or opinions) are not ‘obeyed’ by the legislature or the governor (or, I would argue, the entire executive branch), because judges cannot order the two elected branches around. They are ‘orders’ when issued to private individuals or corporations — IF the court has jurisdiction.” Thanks, John.)

It was, and perhaps still is, up to the Legislature to enshrine the provision of subsidized abortion services into law.

IF (repeat IF), as I suspect, the Legislature never enshrined the provision of subsidized abortion services into law (bureaucrat-issued regulations not supported by specific statutes DON’T count), one of the following three things has to be true:

1. Any subsidized abortion services provided by Massachusetts during the past 26 years have been illegal (literally not supported by a real law).
2. If the provision of subsidized abortion services was included for the first time in the state’s history in the law that created RomneyCare, Mitt Romney, by not exercising his veto powers, enshrined the provision of subsidized abortion services into law for the first time, and at the same time significantly increased the number of state citizens to whom subsidized abortion services would be made available.
3. If the provision of subsidized abortion services was NOT included in the law that created RomneyCare, Mitt Romney and his administration (and his successor) have continued a 26-year tradition of to provide subsidized abortion services illegally (again, literally not supported by a real law), and significantly increased the number of state citizens to whom subsidized abortion services would be made available.

Unfit Mitt has a lot of explaining to do. He’s called Unfit Mitt around here because I believe he can’t.

Memo to Kevin Madden: Unless you can cite a specific Massachusetts law that was in place before RomneyCare (not a court ruling, Kevin, a real honest-to-goodness piece of statutory law), your only choices are Door Number 1, Door Number 2, or Door Number 3. You might want to ask your boss which one he prefers.

Unilateral Implementation of Same-Sex Marriage

This one’s the hum-ding-danger, though I hope Team Thompson is just warming up (bold is mine):

Rival: Gay-wed certificates prove ex-gov’s a flip-flopper

GOP presidential contender Fred Thompson is charging that Mitt Romney flip-flopped on gay marriage because he approved hundreds of special certificates that allowed regular citizens to officiate scores of same-sex weddings during his tenure as governor.

Romney, who has cast himself as the staunchest Republican defender of traditional marriage, reportedly signed off on almost 200 one-day certificates allowing gay and lesbian couples to use unlicensed friends to preside over their weddings. Under an obscure state law, the certificates can be granted only to couples that get approval from the governor’s office.

“This is why Mitt Romney is having such a hard time in Iowa right now,” said Thompson spokeswoman Karen Hanretty, who called the license approvals another reason to doubt Romney “on matters of principle and conviction.”

….. A spokesman for the former governor dismissed the latest attack, saying it would have been illegal for Romney to deny the certificates to gay couples. “No one fought harder to overturn the court’s gay marriage ruling than Mitt Romney,” (no first name identified) Fehrnstrom said in an e-mailed statement. “Until that day arrives, we are all required to follow the law, even though we may disagree with it.”

Two words for M. Fehrnstrom: Horse, Manure.

Let me refresh readers on this very succinctly, with some reordering and paraphrasing, from this previous BizzyBlog post.

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You see, under Massachusetts’s Constitution, court rulings aren’t “obeyed,” because they aren’t orders.

(Clarification, consistent with the 8PM update above — “Court rulings (or opinions) are not ‘obeyed’ by the legislature or the governor (or, I would argue, the entire executive branch), because judges cannot order the two elected branches around. They are ‘orders’ when issued to private individuals or corporations — IF the court has jurisdiction.”)

This is not arguable.

In fact, under the Massachusetts Constitution, the Supreme Judicial Court (SJC) didn’t even have the jurisdiction to take the case, and violated THEIR oaths of office by doing so.

Again, this is not arguable.

Even the SJC, in its Goodridge ruling, acknowledged that it could only advise the state legislature to pass an enabling law within 180 days of its ruling.

The legislature didn’t pass a law, and has not done so to this day.

Enter Mitt “he promised to obey the court’s ruling” Romney.

Even though there was no “ruling” to obey, only a court opinion that the legislature had not enabled into law, Mitt Romney extra-constitutionally, and in direct violation of his oath of office, imposed same-sex marriage in the Bay State.

This is not arguable.

Yet this is a man who has now been endorsed for president by some of the alleged leading lights of conservatism, even of social conservatism.

This is madness. It must be stopped.

I understand that Romney gave a speech recently about his (insert name of his religion) faith.

Understand this. I don’t care that Mitt Romney is a (insert name of religion).

I don’t care about what Romney has said, in isolation. I do care about what Romney has done, in comparison to what he has said. What he has consciously, proactively, and cynically done to break the oath he swore to the people of Massachusetts, and before God, while pretending now to be a warrior against the very thing he put into place, makes him objectively unfit to serve as president.

Our country’s Founders would agree.

And that, folks, is also not arguable.

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There’s more.

The New York Times report by Michael Luo cited at the beginning of that same BizzyBlog post shows that Romney consciously kept a 2002 campaign promise to the Log Cabin Republicans to (in typical Times mischaracterization) “obey the courts’ ultimate ruling,” and considered that promise more important than the oath he swore in January 2003, when he was inaugurated as governor, to uphold and follow the Massachusetts Constitution.

So on the matter of same-sex marriage in Massachusetts, we’re left with two choices:

1. Mitt Romney believes what he is now saying about same-sex marriage, but is too weak and/or craven to fight the fights that will need to be fought on these and other issues. He’ll fold on anything if the courts say “boo,” or to keep a campaign promise.
2. Mitt Romney does not believe what he is now saying about same-sex marraige, and will therefore fight the fights that will need to be fought for the other side, even if it means, as was the case in Massachusetts, directly breaking the law, violating his oath of office, and ignoring the constitution he has sworn before God to uphold.

Again, Unfit Mitt has a lot of explaining to do. He’s called Unfit Mitt around here because, again, I believe he can’t.

Memo to M. Fehrnstrom: Ask your boss whether, in this instance, he prefers Door Number 1, or Door Number 2. Those two choices appear to be the only ones available. Either answer makes Mitt Romney objectively unfit to serve as President of the United States.

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Now that it’s joined the fray, Team Thompson needs to extend its arguments to constitutional law.

Kevin Madden and M. Fehrnstrom have thrown you two hanging curves, folks. Knock ‘em out of the park already.

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Previous directly related posts:
- Nov. 26 — Index to “Romney, the Courts, and the Constitutions” series and “Cliff’s Notes” Explanation
- Nov. 21 — Part 1: Abortion Coverage in RomneyCare
- Nov. 21 — Part 2: Mitt Romney and Same-Sex Marriage
- Nov. 23 — Part 3: Various Excerpts, Statements, and Comments
- Nov. 24 — Part 4: What’s Beck Got to Do with It?
- Nov. 25 — Part 5: The Next President and the Courts