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Abortion Report Final

Abortion Report Final

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Published by Rich Myslinski

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Published by: Rich Myslinski on Aug 10, 2011
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The New Jersey Supreme Court & Judicial Activism: Taxpayer-Funded Abortions
In 1982, the New Jersey Supreme Court, in
 Right to Choose
v.
 Byrne
, struck down a democratically enacted law that prohibited public funding of abortions throughMedicaid, except for when the procedure was medically necessary to preserve the life of the mother. The Court ruled that the State not funding abortions that were medicallynecessary for the health of the mother violated the equal protection of the laws that areimplicit in Article 1, paragraph 1 of the State Constitution. In doing so, theunaccountable New Jersey Supreme Court violated its own precedent and went beyond judicial review and embraced judicial activism.The U.S. Supreme Court previously ruled in
 Harris
v.
McRae
(1980) that theHyde Amendment, which generally banned federal funding of abortions through theMedicaid program except for when it was medically necessary for the life of the mother,did NOT violate the Equal Protection Clause of the U.S. Constitution. That same year, in
McKenney
v.
 Byrne
(1980), the New Jersey Supreme Court showed deference to federalconstitutional interpretation in stating that the "burden of mounting a successful challengeon equal protection grounds under the state Constitution [under stated circumstances] . . .is no different from that which prevails under the federal Constitution.” However, in the1982
 Right to Choose v. Byrne
decision, the New Jersey Supreme Court ruled contrary tothe U.S. Supreme Court’s
 Harris v. McRae
decision. It reasoned that the State wasunconstitutionally violating a woman’s free choice by not funding all medicallynecessary abortions, whether for the woman’s life or health. In other words, the NewJersey Supreme Court, engaging in judicial activism, changed the way it legally analyzedthe claim of an equal protection violation in an effort to get the result that it wanted.In the
 Right to Choose v. Byrne
decision, the Court ruled that because the Stateentered the playing field of providing medically necessary care to a pregnant woman, it“may be an umpire, but not a contestant” (Justice Pollock, majority opinion). The Courtindicated that the State must be neutral in the woman’s decision-making process. For instance, it could not offer to cover the cost of delivering the child, but deny coverage of an abortion that a physician deems medically necessary for the woman’s health. In sodoing, the Court expanded what had been a voluntary entitlement program of thegovernment to a guaranteed right.The New Jersey Supreme Court ruled that by providing funding for abortion inone situation but not another that a woman’s right to have an abortion has been violated.However, the law that was struck down had nothing to do with whether a woman had avalid right to an abortion for health reasons; rather it, just like the Hyde Amendment,stated that taxpayer monies would not be used to fund the abortion. It is our electedrepresentatives in the legislature to determine how to structure its Medicaid program andwhat services and under what conditions those services will be provided.The concept of equal protection of the law is a restraint on governmental power. Itwas intended to prevent the government from arbitrarily discriminating against a group or individual. What the Court did here was mere judicial activism, using equal protection toexpand a voluntary entitlement program to a guaranteed right. The democratically elected New Jersey Legislature made a rational distinction between funding abortions to save thelife of the mother or to preserve the health of the mother. Since a woman does not have afundamental right to a taxpayer-funded abortion, the Court should have deferred to the

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