TO: [Undisclosed Parties]
FROM: Americans United for Life Legal Team
DATE: June 22, 2010
RE: Elena Kagan and Health Care Reform
What does the nomination of Elena Kagan to the U.S. Supreme Court have to do with abortion funding in the sweeping health care reform law of March 2010? In addition to provisions of law itself that may be challenged before the Supreme Court, pro-life state responses, such as new “opt-out” laws, may be challenged by abortion advocates. Even the President’s executive order, which claims to apply the Hyde Amendment to the new law, may be challenged by the abortion lobby.
The new health care law allows states to enact “opt-out” laws to prohibit abortion-providing insurance plans from participating in the state’s insurance exchange. Americans United for Life has drafted model legislation, the “Federal Abortion Mandate Opt-Out Act,” to aid states in mitigating the abortion-funding of the new health care law.
In its legislative findings, AUL’s model law cites Rust v. Sullivan, a 1991 case in which the Supreme Court held Congress’s decision not to fund abortion “places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy”. A state may engage in unequal subsidization of abortion and other medical services in order to encourage child-bearing deemed in the public interest.
Arizona, Mississippi and Tennessee have already enacted “opt-out” legislation. The legislatures of Louisiana and Missiouri have also passed “opt-out” bills that are pending the signature of their governors.  Several more states are considering “opt-out” bills.
However, Kagan has extensively criticized the foundation upon which these laws rest, that is, the decision in Rust . Kagan argues that the regulations upheld by the Court amount to unconstitutional viewpoint discrimination. In a 1993 law review article Kagan wrote, “the Court [in Rust], to its discredit, announced that because the selectivity occurred in the context of a governmental funding program, the presumption against viewpoint discrimination was suspended” (emphasis added). In other words, Kagan does not think that the provision of government funding provides enough justification for the government to favor childbirth over abortion.
In addition, Kagan has argued that the search for “legislative motive,” rather than the widely-accepted inquiry into “legislative intent,” is appropriate. However, such an inquiry is unacceptable because it simply permits an agenda-driven judge to throw out laws she does not favor. Looking for governmental “motive” degenerates into looking for bad motives. “Bad motives” in this context simply means condemning the motives of legislators for laws one does not like. Pro-abortion academics and judges have long sought to impose an “anti-abortion motive” analysis to invalidate state pro-life regulations.
The Executive Order
President Obama’s executive order expressly applies “Hyde Amendment principles” to new funds appropriated to Community Health Centers (CHCs), $9.5 billion in new funding which is not subject to any prohibition in the new health care law against directly funding abortion.
Will such a limitation hold up in court? There are least two important considerations. In health care legislation, if there is no statutory prohibition on abortion funding – and there is not in the new health care reform – federal courts have implied Congressional intent to require abortion funding.
Second, the Supreme Court has repeatedly affirmed that statutes cannot be “extended” beyond their express terms by executive orders.
Should Kagan be confirmed as a Supreme Court Justice, would she interpret the health care law to mandate abortion funding for CHCs and disallow the executive order as going beyond the express terms of the health care law?
Many issues stemming from the new health care reform may come before the Court. We have discussed only two. Even so, if Kagan is confirmed to the Supreme Court, will she vote to strike down opt-out state laws per her criticism of Rust that the government may not favor child-bearing over abortion? Will she strike down the restrictions on abortion placed by the executive order on CHC’s as going beyond the words of the health care law? Senators need to ask, and America deserves an answer.
 Section 1303 of the Senate health care bill, now law.
 Mississippi’s new law, for example, uses language from AUL’s model legislation. http://billstatus.ls.state.ms.us/documents/2010/pdf/SB/3200-3299/SB3214SG.pdf
 Rust v. Sullivan, 500 U.S. 173, 201 (1991).
 Id. at 198.
 The legislatures of Oklahoma and Florida also both passed “opt-out” legislation, however the bills were vetoed by each state’s Governor.
 See Elena Kagan, The Changing Faces of First Amendment Neutrality: R.A.V. v. St. Paul, Rust v. Sullivan, and the Problem of Content-Based Underinclusion,1992 Sup. Ct. Rev. 29 (1992).
 Elena Kagan, Regulation of Hate Speech and Pornography after R.A.V., 60 U. Chi. L. Rev. 873 (1993).
 Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. Chi. L.Rev. 413 (1996).
Section 3 of the executive order states, “Under the Act, the Hyde language shall apply to the authorization and appropriations of funds for Community Health Centers under section 10503 and all other relevant provisions.”
 The Senate bill self-appropriated $7 billion in funding for CHCs. The reconciliation bill passed by the House and Senate increased that amount to $9.5 billion. H.R. 4872, Reconciliation Act of 2010, §2303, http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:h4872enr.txt.pdf, amending §10503 of the Senate bill.
See Planned Parenthood Affiliates of Michigan v. Engler,73 F.3d 634, 636 (6th Cir. 1996); Hope Medical Clinic v. Edwards, 63 F.3d 418 (5th Cir 1995); Little Rock Family Planning Services v. Dalton, 60 F.3d 497 (8th Cir. 1995), cert. denied, 116 S.Ct. 777 (1996); Hern v. Beye, 57 F.3d 906, 910 (10th Cir. 1995), cert. denied, 116 S.Ct. 569 (1995).
 In 2006, the Supreme Court struck down an executive order issued by President Bush to invoke military commission jurisdiction over Hamdan because Congress had impliedly prohibited this action. Hamdan v. Rumsfeld, 548 U.S. 557, 579–580 (2006).