A Grand Illusion

David Rivkin and Lee Casey, a couple of Republican Justice Dept. lawyers, wax about the issue in today’s Wall Street Journal. The two lawyers point an implied finger and an accompanying ha-ha at liberals for interpreting in the constitution a right to privacy and abortion rights.

This is how they start their editorial:

Is a government-dominated health-care system unconstitutional? A strong case can be made for that proposition, based on the same “right to privacy” that underlies such landmark Supreme Court decisions as Roe v. Wade.

Haha, you stupid liberals, all these nonsense constitutional rights you’ve been making up for the last 50 years have come back to bite you in the ass. Hahahaha.

Well, they put it a little differently than that, but still:

It is, of course, difficult to imagine choices more “central to personal dignity and autonomy” than measures to be taken for the prevention and treatment of disease — measures that may be essential to preserve or extend life itself. Indeed, when the overwhelming moral issues that surround the abortion question are stripped away, what is left is a medical procedure determined to be “necessary” by an expectant mother and her physician.

If the government cannot proscribe — or even “unduly burden,” to use another of the Supreme Court’s analytical frameworks — access to abortion, how can it proscribe access to other medical procedures, including transplants, corrective or restorative surgeries, chemotherapy treatments, or a myriad of other health services that individuals may need or desire?

There are a couple of problems with their logic. One is that abortion is a right, not an entitlement–and it’s kind of scary that Republicans don’t know the difference between the two. There is a big difference between the state saying you can’t do X, and the state saying the government is not going to allocate money to pay for you to do X. You’d think Republicans would get that distinction, especially since they love passing laws refusing to have taxpayer dollars go to abortions.

There are a couple of remote scenarios in which Rivkin and Casey’s argument might hold a minimal amount of water. These are the boogeyman circumstances the Republicans have been trying to scare people with for the past few months. One is the nearly impossible chance that the healthcare reform bill establishes a national healthcare system and outlaws private options. Regardless of what Republicans say, that’s not on the table right now, and it has no chance of actually happening.

The second is another Republican favorite whereby a public option in the bill–allowing for private citizens or businesses to opt to purchase a public healthcare option over a private one–will eventually price out the private options. Eventually, say the Republicans the public option would eventually become the de facto national healthcare system because no private actor could compete. That scenario is also very unlikely. All you have to do is look at the medicare supplement insurance staple industry. Medicare may have priced some private actors, but it certainly hasn’t completely taken over that market. Remember, Rivkin and Casey’s doomsday scenario only works if the government’s is your only option, and its limitations become a de facto prohibition.

But even if Republicans are right, even if the public option becomes so pervasive that it’s no longer an option, but your only choice, a potential constitutional issue is hardly an argument against it.

We have far more rights vis-a-vis our governments than we do when dealing with private insurance companies. This is where Republicans usually chime in and inform us that when you have private actors providing healthcare, the marketplace usually sorts everything out. But they don’t tell you that when you have five HMO providers refusing to cover the same service, there is nothing you or the marketplace can do about it. And, according to the landmark Supreme Court case, Blue Cross Blue Shield’s Boot v. Your Ass, there is nothing you, the marketplace, the Constitution, or the Supreme Court can do about it.

All of the sudden that mythological constitutional issue is looking pretty good, isn’t it?

Freddy T., who insinuated Cuban migrants were terrorists after he courted their vote, has just added another flipflopping credit to his political resume. According to the LA Times, the presidential tease is a recent convert to the anti-abortion crusade.

Fred D. Thompson, who is campaigning for president as an antiabortion Republican, accepted an assignment from a family-planning group to lobby the first Bush White House to ease a controversial abortion restriction, according to a 1991 document and several people familiar with the matter.

A spokesman for the former Tennessee senator denied that Thompson did the lobbying work. But the minutes of a 1991 board meeting of the National Family Planning and Reproductive Health Assn. say that the group hired Thompson that year.

His task was to urge the administration of President George H. W. Bush to withdraw or relax a rule that barred abortion counseling at clinics that received federal money, according to the records and to people who worked on the matter.

Yes, Thompson’s people deny that it ever happened. But read the denial and it’s obvious that they’re not being totally sincere.

Thompson spokesman Mark Corallo adamantly denied that Thompson worked for the family planning group. “Fred Thompson did not lobby for this group, period,” he said in an e-mail.

In a telephone interview, he added: “There’s no documents to prove it, there’s no billing records, and Thompson says he has no recollection of it, says it didn’t happen.” In a separate interview, John H. Sununu, the White House official whom the family planning group wanted to contact, said he had no memory of the lobbying and doubted it took place.

“Thompson says he has no recollection of it”? That’s political speak for “it happened but we’re going to say it didn’t until you have better evidence.” You would think a republican wannabe candidate who is so vocal about his stance on abortion would be able to come up with a more staunch denial of whether he ever lobbied for against restricting it.

Freddy T., you’re going to make a great republican candidate.

UPDATED TO ADD: SOTP has a great post, also with great comments, about Freddy T’s comparison of Scooter Libby with Bill Clinton.