Joe Biden, the Hyde Amendment and You

Vice President Joe Biden took the entirely symbolic step of reversing his position in the Hyde Amendment, which prevents Medicaid funding of abortion services. This was politically necessary to defuse the issue in seeking the Democratic Party nomination for President. He is betting it will not cost him many votes in the November 2020 General Election.

He could easily say that Hyde is not a presidential matter, which is true. No President would veto the Human Services appropriation because it either included or omitted Hyde. This battle is fought in the appropriations subcommittee and maybe on the floor of the House in an open rule or the Senate as an amendment (likely as an excuse to get something else done, like entitlement cuts).

Entitlement increases are what is needed to reduce abortion, as most are for economic reasons or to cover-up sexual activity by teens or cheating spouses. Make the child tax credit high enough and no one will care how old the mother is or who's the father.

Even with insurance, most non-therapeutic abortion is paid without insurance, although the very poor in some states do use Medicaid from their own tax collections to bypass Hyde. Still, you are more likely to finance abortion by seeing a movie or getting a fast food than in paying taxes and insurance.

In all cases, even without Hyde, there is no moral reason not to buy a burger, go to a movie, pay taxes or participate in group insurance, including Medicare for All, because you do not want to fund somebody else's abortion. The effect of your payment and the actual procedure us too remote for it to be any of your business. Even the Ethics textbooks at Catholic minor seminary state this. Indeed, that is where I learned this.

This is a teachable moment that Vice President Biden should take advantage of to end this entire debate. It is necessary to do so for November 2020.

Doing this is almost riskier for the pro-choice side, because changing too many hearts and minds ends its usefulness in mobilizing feminists as it also neutralizes the pro-birth movement.

The Alabama abortion law has forced the pro-Birthers to go All-In anyway, so it really is time to put all cards on the table and let the chips fall as they may.

This law, as well as fetal heartbeat and trap law (and in Missouri, trap regulation) cases have come forward because the pro-life movement is under the mistaken notion that adding Justices Gorsuch and Kavanaugh to the Supreme Court may cause Chief Roberts and Justice Alito to change their minds about repealing Roe v. Wade. Note that both new Justices clerked for Justice Kennedy.

Kennedy was seen as the swing vote on many social issues. In the partial birth abortion case, he had voted against state bans of the procedure, which he considered infanticide because the child was being born to accomplish it (even if the child was not yet viable), but voted for a federal ban. He did so, with Roberts and Kennedy joining, based on the Commerce Clause.

A better hook would have been the power of Congress to enforce the 14th Amendment.  Justice Thomas rightly  claimed that the Court could already do so under already delegated power, which is likely correct, but farther than Kennedy, Roberts and Alito wanted to go. The Movement is betting the farm that Roberts and Alito and the new Jusices will now go with Thomas.

Many believe (including me) that the law is an attempt to adopt the Justice Scalia position (Gorsuch filled his seat) that state legislatures should make equal protection and due process decisions without federal interference, essentially bringing back the Plessy v. Ferguson Status quo. Scalia believed that the framers of the 14th Amendment never wanted it to be a catch-all, regardless if the fact that debate showed that they wanted exactly that.

The fact that both if the new Justices admired Scalia adds to the fear that his vision did not die with him. Most doubt that Roberts would join this vision, although it is fairly clear that those who enacted the federal partial birth abortion ban did so as an invitation to overturn Roe in just this way.

The more realistic fear is that the Thomas derived congressional power theory could be seen as a compromise that Catholic Roberts may take. He is more likely to reject it as judicial activism. Even the congressional power view scares femunists because that gives the pro-birth movement an avenue for hope and fundraising (because congressional action would be constitutional and Roberts would support it). This is not likely either, because unconstitutional selective enforcement would be required, forcing broad enforcement that  would require police power to investigate miscarriages too. That complexity is why Roberts will likely not support the Thomas theory of the case.

The teachable moment is to be straight with the voters that overturning Roe could mean revoking Plessy, so it should not be supported, even by Catholic voters, and that only congressional action could make the unborn legal persons, but that the prospect of police power to investigate miscarriage makes that unlikely as well. Trust the voters to see the truth.

The crisis of the moment is the other way the pro-Birthers are looking busy to get a case to the Court to overturn Roe,  the legal thuggery called Trap laws. The Court has already agreed with a circuit court ruling that held these laws unconstitutional, but that was two justices ago. Because another circuit went the other way, this matter may be heard.

The other option is for the Court to not hear the case and simply order that the fifth circuit decision be vacated, giving the ACLU, et al, the ability to go after all efforts to enact them through law or regulation. This would end the narrative that the Court will allow Roe to be overturned by a death by a thousand cuts. That would end fundraising on both sides. We will know by the end of the month. It is doubtful that a court that affirms its prior opinion on trap laws will ever hear another challenge to Roe.

Many in the pro-birth movement care nothing for what they call the legal mumbo jumbo, especially not the recognition that the unborn already have a right to life against the state, which is why a pregnant woman cannot be executed or forced to have an abortion. They truly believe abortion is murder, although not being murdered is not an inherent right. It is a contractual one because having government is not a civil right. If it were, then all of our freedoms would depend in that government.

Instead, the pro-Birthers believe that the law of God and the Church should take precedent. On the contrary, the First Amendment and pluralism demand that Catholic politicians not impose their personal morality on the government, something that some Catholic bishops cannot except, even though Dignitatis Humanae affirms the right of individual conscience in religion. Catholic politicians need not and indeed cannot impose their faith on others.

The stance of Democratic politicians claiming to be personally pro-life but not the requirement to ban abortion is a natural extension of that doctrine.  Sadly, this has prevented most of them from publicly explaining why Roe was rightly decided in the American system. 

Biden rejecting the Hyde Amendment ripped off that bandage. It is time for Catholic politicians to explain all of this to their faith leaders, both publicly and privately. The bishops need to be called out for putting loyalty to the party line, both Vatican and Republican, above the truth.

The Vice President needs to explain this in detail and well enough before 2020 to make abortion and Hyde a non-issue for both sides, except as a justification for increasing the child tax credit to living wage levels of $1000 per month per child, distributed with payroll. Make the Republicans say publicly what they say privately, that they do not want to pay higher taxes to subsidize other people's sexuality. You see, this whole debate really is about controlling female sexuality and punishing the poor.