04/04/2010 05:12 am ET | Updated May 25, 2011

Is the Ban on Federally Funded Abortions Constitutional?

Since the Supreme Court appears receptive to rejecting precedent in letting corporations overwhelm our elective system, possibly they should re-examine the constitutionality of the ban on federal funding of abortions in its current form or as proposed in the new health care legislation. One need not disrespect the pro-life movement by recognizing that it has a strong religious basis. But perceived sin does not the law make. Abortion is legal in this country. It should not be exempted from coverage or funding because of religious beliefs.

Many persons perceive homosexuality as a sin and AIDS a result of that sinful activity. Could Congress, in good conscience and legally, deny coverage for AIDS treatment, because gays and lesbians and their lifestyle offend a segment of the nation? The underpinning of Roe v. Wade was that a woman had the right to be free of state interference with her choice to have an abortion. The denial of public funds coerces women into giving birth in instances in which they would have elected not to do so.

The effect of the Hyde Amendment and similar language proposed in the pending health care bill imposes a political moral judgment on a decision that has been entrusted by law to the woman involved in consultation with her doctor, and her family if she so chooses. Furthermore, in addition to singling out women with these dire consequences, in reality the prohibition singles out the poor, those that cannot undergo the procedure without financial assistance.

It is the government that is limiting a woman's freedom to choose abortion over childbirth. By doing so the government violates the due process rights guaranteed under the ruling in Roe v. Wade. To suggest that the poor women who is unable to pay for an abortion is not impeded by the government policy is to ignore reality. The government has chosen to provide funding to continue the pregnancy to term, but not to abort. Concededly the government could have withheld all federal funding, but having granted it in full, it is the singular exclusion of abortion coverage which may render it unconstitutional. The denial of benefits cannot be used to affect the exercise of a choice which has been accorded constitutional protection.

The legislation is so clearly discriminatory. Women who are not pregnant are reimbursed for all medically necessary treatments. Pregnant women will receive the same benefits and treatments with the exception only of abortions. Although I recognize that the Supreme Court has decided otherwise, I believe that there is a strong argument that the ban violates the equal protection of the law, the class being indigent pregnant women. Over time, exceptions to the prohibition have been adopted and are now being considered. But the need to come within those exceptions, the time it takes to prove them and the confusion as to what qualifies or does not, in and of itself, impinges upon the rights of women. Even with exceptions, the ban ultimately infringes upon the woman's constitutional right to decide whether or not she will terminate her pregnancy. Without in anyway denigrating those who passionately believe in protecting the fetus and its right to life, the place for these decisions to be made is in the heart and mind of the woman, not in the halls of Congress if we are to honor the Constitution and the holding in Roe v. Wade.