Casey Mattox

While the Supreme Court prepares for the showdown over the constitutionality of ObamaCare next week, another important battle over the controversial law is playing out in a state court in Rhode Island.

Rhode Island Right to Life and 38 members of the Rhode Island General Assembly are fighting to stop Gov. Lincoln Chafee’s unilateral creation of an ObamaCare health insurance exchange that would subsidize elective abortions without a vote by the peoples’ elected representatives. At issue is whether even the basic constitutional separation of powers will be another casualty of the abortion distortion, the tendency of the law (the First Amendment, parental rights, standing, etc.) to be distorted in order to facilitate abortion.

The Patient Protection and Affordable Care Act, a.k.a., ObamaCare, asks that states create (or have the federal government create for them) health insurance exchanges that will approve qualifying plans for uninsured persons. Premiums for plans in an exchange are then subsidized with federal taxpayer dollars.

And because the Hyde Amendment, a decades-old federal law limiting abortion funding or subsidies does not directly apply to ObamaCare—and is subject to annual expiration—elective abortions for any purpose could be subsidized by taxpayer dollars in a state health insurance exchange. The only thing standing in its way would be President Obama’s executive order (of dubious authority) stating that abortion restrictions in the Hyde Amendment would be applied to the health insurance exchanges. And of course his executive order is subject to his own rescission or amendment at any time. Even those who rely on the executive order to claim, wrongly, that Obamacare doesn’t fund elective abortions must acknowledge that President Obama can rescind that order at any time. Abortion funding rests on his shoulders.

The members of the Rhode Island General Assembly take very seriously their constitutional responsibility to make law. They also are concerned about the prospect that the state’s citizens could be forced to subsidize elective abortions in violation of their consciences.

In fact, the state’s founder, Roger Williams, a conscientious objector himself, once wrote, “Men’s consciences ought in no sort to be violated, urged, or constrained.” That’s why the state Senate overwhelmingly approved a measure to create a health insurance exchange that would have required insurance providers covering elective abortion to separate this coverage and require an additional non-subsidized premium. However, during the last legislative session, the plan could not get the required votes to pass in the House prior to adjournment.

This still left the House time to get the needed votes together. After all, the exchanges need not be operational until Jan. 1, 2014. Most states have not created exchanges yet. So there was plenty of time to let the legislature work through the process of creating an exchange that did not subsidize elective abortions.

But Gov. Chafee refused to let the democratic process run its course. Instead, he unilaterally created an exchange in violation of the Rhode Island Constitution’s separation of powers and without any limitations on abortion subsidies. The Obama administration responded to Gov. Chafee’s unilateral declaration by awarding him $58 million (roughly $58 per person or $58,000 per square mile of Rhode Island) just in start-up funds and consultant fees.

The ultimate constitutional merits of ObamaCare will soon be determined by the Supreme Court. But those worried about the law’s massive shift in regulation of healthcare from the states to federal government should be alarmed about a precedent that takes the lawmaking bodies in the states completely out of the equation.

And those concerned about the potential for abortion subsidies in ObamaCare should rightfully be concerned that this is yet another example of how those friendly to abortion funding in the state and federal governments will ignore legal constraints if it helps them to prevent obstacles to taxpayer funding for elective abortions.

The zealous proponents of the culture of death will not rest in their efforts to force taxpayers to fund their deadly agenda, even at the expense of the separation of powers and rights of conscience.


Casey Mattox

Casey Mattox is senior counsel with Alliance Defending Freedom