Everyone knows that the Executive Order that bought off Bart Stupak and his faux-life friends isn’t worth the paper its written on. But did you know that that paper its written on might even be thrown out by the courts?

Miriel at “seeking Solomon” writes…

Unfortunately for the Congressman, and for unborn babies all over America, the impermanence of executive orders pales in comparison to the other problem with Stupak’s executive order compromise: under current precedent, it is quite possibly unconstitutional.

This is a little more complicated than the first problem, and I have seen almost no discussion of it in news coverage of the trade, but here’s the basic idea: according to the Supreme Court’s current interpretation of Roe v. Wade, abortion (falling under “privacy,” cf. Griswold) is a very highly protected right. In the 1992 case Planned Parenthood v. Casey, the Court downgraded abortion from a fundamental right (which would trigger a test called “strict scrutiny”), to a right upon which the government can place no “undue burden.” To the best of my knowledge, there was no precedent for an “undue burden” test, and its parameters but are unclear; for example, informed consent and parental notification requirements for abortion are not undue burdens, while spousal notification laws are. In any case, the “undue burden” means that the state must provide a pretty strong justification for placing limits on access to abortion, or the courts will strike it down.

In the case of abortion, the Court has also ruled that, while the right to have an abortion is fundamental, there is no corresponding fundamental right to have your abortion funded by the government. So the state is bound not to place an undue burden on women’s access to the procedure, but it is not bound to provide or fund the procedure. Which means we’re talking about a flex zone, right? The federal legislature is prohibited from outlawing abortion, but it is perfectly free to establish funding programs for health care—including obstetric and gynecological care—that specifically exclude abortion.

Great, right? Except that, since the parameters of the undue burden test are unclear, it’s possible that an after-the-fact exclusion of abortion from coverage under the bill would be construed as unacceptable by the Court, and wouldn’t fall under the exemption applied to legislative action in Rust v. Sullivan (1991). In other words, if the bill says, “fund all ob/gyn care except abortion,” the Court says: “No problem. The right to abortion does not imply a corresponding right to a taxpayer funded abortion.” If, on the other hand, the legislature passes a bill that says “fund all ob/gyn care, full stop,” and the President issues an executive order saying “none of that money allotted for ob/gyn care can be used for abortions,” the Court could potentially say—and under current precedent might find itself required to say—“This executive order places an undue burden on access to abortion, there is no compelling state interest for the exclusion of abortion from standard ob/gyn care, strike it down,” and bam. The floodgates are opened.

If she is right, this may very well explain why there was little or no protest from pro-abortion groups. We all know that they understood that the Senate language does not stop federally funded abortions. But perhaps they also knew that the Executive Order would be thrown out in short order. Look to see if they challenge it right after President Obama issues it.

Stupak et al may have sold their souls for 30 pieces of nothing.

Note @ 3:46 PM EDT 3/23/10
At Miriel’s request I have updated the quote as it had some errors in it.

By way of supporting evidence, take a look at this letter written by Robert A. Destro
Professor of Law at Catholic University Law School.

Here is a relevant section:

Without the Hyde Amendment, abortions not only may be covered, abortions must be covered. This has been the law for over thirty years. In Beal v. Doe, 432 U.S. 438, 443 (1977), Pennsylvania women denied coverage for elective abortions under state law sued in federal court, arguing that “Title XIX Medicaid] requires Pennsylvania to fund under its Medicaid program the cost of all abortions that are permissible under state law.” In Beal, the argument was that Congress’ failure to exclude abortion from the definition of “family planning services” in the 1972 amendments to Title XIX required the states to cover abortion. The courts have always assumed that, without the Hyde Amendment, federal law requires that the federal government must pay for abortions.

Neither the argument and nor the precedents have changed.

Read together with the case law and Section 1303 of the Senate Bill (which assumes that abortions are a part of a “comprehensive” health care insurance program), we can be virtually certain that the first lawsuit arguing that the Senate Bill requires funding for abortions under the CHC appropriation will be filed before the ink is dry on President Obama’s signature.