Our friend and past guest on our radio show Tom Blumer, proprietor of the award winning, Bizzy Blog, has been intimately involved in our ongoing discussion on the radio and on this blog with regard to Mitt Romney’s candidacy and specifically as it pertains to:
1. Whether the former governor Romney was just “just following the decision of the Court” in the Goodridge decision that “legalized gay marriage” or whether he was actually subverting the law by ordering Justices of the Peace and other town clerks and state officials to perform same sex marriage ceremomies even though the original marriage statute (ch 207) had not been changed by the legislature and did not allow for same sex marriages.
2. Whether the former governor was just “following the law” when he signed his healthcare plan legislation (Commonwealth Care) that included tax subsidized abortions on demand with a $50 co-pay or whether he had the opportunity to veto the bill and ask that the abortion provision be removed from it (since at that time he claimed to be “pro-life”).
3. Whether the judiciary has the constitutional authority to “strike” or “suspend” any law in Massachusetts. (Article XX says no)
Tom has done a wonderful job in shedding some much needed clarity around these issues which is the reason that I believe Tom is the prototypical “New Media Journalist.” Here it is:
Romney, the Courts, and the Constitutions: Part 1 — Abortion Coverage in RomneyCare
Yesterday was a relatively light posting day, at least in terms of verbosity, because I’ve been watching a fascinating and important e-mail debate unfold primarily between Gregg Jackson and Kevin Whelan, the co-hosts of Pundit Review radio and the Pundit Review blog. Along the way, there has been some input from myself and at least a couple of other more knowledgeable folks.The subjects started out being Mitt Romney’s inclusion of abortion coverage in Commonwealth Care, aka RomneyCare, and Romney’s ability or inability to act on the Massachusetts court’s Goodridge ruling “legalizing†same-sex marriage. In the process of vetting these two matters, broader issues about the relationships between the branches of government have come to the fore.
The broader issues strike me as awfully important, and I’ll try to develop them…
I’ll try to summarize where I believe things stand on these matters, with the obvious disclaimer that I don’t know Massachusetts law inside and out.
The bedrock issue is how much power the courts have.
Haskins believes that, at least in Massachusetts, the courts can only advise. I’m not kidding. He cites as precedent how slavery actually became illegal in the state.
When the Supreme Judicial Court (SJC) of Massachusetts declared the practice of slavery to be a violation of the state’s constitution, it only had the power to set free one slave, the slave on whose behalf legal action was brought. The only way to make slavery illegal, as opposed to “merely†unconstitutional, was for the legislature to pass, and the governor to sign, a law proscribing slavery. Until that happened, the only way for an individual slave to be freed was for him or her to bring a new legal action. If the legislature had dithered for 100 years (I don’t know how long it actually took; my guess is not long), the case-by-case approach would have been the only one available.
Haskins is clearly historically correct.
There is no reason to believe that constitutional conditions in Massachusetts have changed since.
Here is what that means to the issues at hand.
The first is the presence of abortion in RomneyCare.
In 1981 and 1997, the SJC “ruled†(i.e., based on the above, “stated its beliefâ€) that a state-subsidized plan must offer “Medically Necessary Abortions.†But wait a minute. Why was the 1997 “ruling†necessary? Is it because, as I suspect, the legislature never passed an actual law requiring such coverage in the intervening 16 years, and the Executive Branch and bureaucracy “just did itâ€? If so, and if no actual law has gone on the books in the 10 years since the second “ruling,†there is no legal requirement to offer these services, and there will not be until the Legislature passes a real law, signed by the Governor, containing such a mandate. Without such an actual law (regulations written by bureaucrats don’t count), the only recourse for Medicaid patients requesting abortions should have been individual court actions. If the legislature is and has been too lazy, or too afraid, to get off its collective butt to pass a law the SJC has “ruled†is needed, too bad, so sad. Those who are impatient with all of this and want legislators who will actually do something to pass such laws have always had recourse. They’re known as elections.
This is also interesting background on the issue. “Robert Paine” Esq. is the foremost legal authority in the country on how Mitt Romney illegally imposed “Gay Marriage.” His analysis has been affirmed as legally sound by numerous constitutional lawyers and law professors. Here it is.
And here is the Massachusetts highest law- the Massachusetts Constitution.