Is the Fetus, In Fact, a "Child?" Yes, Says Nebraska!

An editorial in todays New York Times provides a fascinating story concerning "the strange road" taken by the Legislature of the State of Nebraska.  The Legislature has deemed a fetus eligible for the State Children's Health Insurance Program!  And, even more unusual, is the fact that this bill is supported not only by Nebraska Right to Life and the Nebraska Catholic Conference, but by Planned Parenthood!

How did this strange partnership occur?  Turns out the Governor of Nebraska had vetoed a bill intended to provide free pre-natal care to undocumented immigrants.  The Governor considered the bill a violation of extant immigration laws and referred to the law as "misguided, misplaced and inappropriate."  The Legislature subsequently ruled that "unborn children do not have immigration status and therefore are not within the scope" of laws affecting "illegal" immigrants, and consequently have the same rights to medical care (pre-natal) as do "born" children (post-natal).  The program is expected to cost Nebraskans $2.5 million a year

Nebraska has, in effect, now officially declared a fetus eligible for medical insurance coverage, extending all the rights of "born" children to "unborn children."  This brings the status of abortion into question in Nebraska.  Nebraska's abortion laws allow abortions only "before viability or if woman is victim of abuse or neglect or if the M.D. has certification in writing that the continued pregnancy is a threat to woman's life, health."

Will a fetus "before viability" be entitled to medical coverage in Nebraska?  If so, the "non-viable" fetus clearly has a new legal status granting him certain rights,  raising the even larger issue as to whether an abortion on such a fetus could ever be considered.  If, on the other hand, the "before viability" fetus is not eligible for this medical entitlement, then may his "illegal" mother still be provided with free pre-natal care, or must she wait until her fetus attains viability?

The Supreme Court Justices - Are They "Hacks"?

President Obama comments on a case presently before the Supreme Court, feeling confident that the Court will do the right thing and duly confirm an act of Congress, not setting a precedent for unconstitutionality in such a situation.  Columnist Maureen Dowd has written that the Court "has squandered even the semi-illusion that it is the unbiased, honest guardian of the Constitution. It is run by hacks dressed up in black robes."

Of course the President's comments are clearly incorrect.  As a matter of fact, the duty of the Court to establish constitutionality was set as precedent way back in 1803 when it ruled an act of Congress unconstitutional in Marbury v. Madison.

There is some truth in Maureen Dowd's assessment that the Court is "unbiased" and "run by hacks," though I would refrain from using such an obviously negative term.  It is, after all, composed of political appointees.  The President is a politician ("hack?") and has, in recent history, always appointed justices that he predicts will share his view of what is constitutional and what is not.  Occasionally there may be a surprise, e.g.  Eisenhower's appointment of Earl Warren, Kennedy's appointment of Byron White, Ford's appointment of John Paul Stevens, and George H.W. Bush's appointment of David Souter.

Our Constitution is open to interpretation.  Even in cases of unanimity, the justices have offered varying interpretations of the law in explaining their opinions.  Why should it be unusual to expect politically appointed justices to follow the principles that determined their appointment in the first place?  An article so vague as is the one describing the federal government's rights vis-a-vis commerce - the word "commerce" itself being undefined - would especially be open to such critical evaluation.

The Court's decisions are certainly open to criticism, but only after rendered.  It is not fair to inveigh against the Court based on what one expects an outcome to be, and without having read the opinions once submitted.  I have read the majority and minority positions on a number of cases.   Though I may disagree with a verdict of the Court, it is my committed belief that the justices arrive at decisions based on an intelligent, as well as a "reasonable and proper" reading of the Constitution - a reading which may, at times, result in the rejection of an otherwise good and well-meaning act of Congress.