Gov. Huckabee has wasted no time establishing his mastery of political theater; the jury is still out on whether he can govern.
In less than a month, he managed a sensational swearing-in, sped up the date of his first execution, announced a plan to give everyone in Arkansas but the very poor an annual government check of $25 to $50 before the fall elections, dramatically halted a $430 payment for an abortion for a poor retarded girl who allegedly was raped by her stepfather, then saved a quarter-million frightened poor people whose government health benefits were imperiled by his abortion stand.
The abortion-Medicaid imbroglio was a particularly satisfying sideshow in which the governor was able to state his strong belief on one side of the most divisive issue of our time, do quite the opposite and get credit for both.
But it still was only a sideshow. The state Medicaid program was never seriously endangered by anyone but the governor and his administration.
Amendment 68, the right-to-life law ratified in 1988, prohibited the state from spending public money for abortions except when the life of the mother was at stake. Congress changed federal law in 1993 to extend Medicaid to cover abortions in the rare cases of rape or incest.
That put the Arkansas law out of sync with federal law, which brought about the inevitable. A federal district court in Little Rock, the 8th U.S. Circuit Court of Appeals and the U.S. Supreme Court all declared the public funding provision void.
It was the easiest case ever argued in a federal court. The supremacy clause of the U.S. Constitution says federal law is supreme wherever it conflicts with state law. A federal regulation overrides a state constitution wherever they conflict. Everyone but John C. Calhoun and a few latter-day segregationists accepted that doctrine.
In directing the state not to pay for the abortion for the girl raped by her stepfather, Huckabee said he was sworn to uphold the state constitution. But his oath also requires allegiance to the federal constitution. The governor said he had to block the payment to preserve the state Medicaid program. In the end, he announced an agreement with federal officials to pay for the girl's abortion and any other abortions resulting from rape or incest from a special trust fund that the state will set up to be filled with private gifts rather than tax receipts. That will avoid the conflict of federal and state law and preserve Medicaid until either state or federal law can be changed to coincide, he said.
The nut of the governor's argument is the same as that of the pro-life lawyer who is suing in state court to halt the $1.2 billion Medicaid program in Arkansas, which pays for nursing home care for the elderly and medical services for poor children and the disabled: Since the state is not legally required to participate in Medicaid, it must withdraw altogether from the program because Amendment 68 requires it. The theory is that you find a way to reconcile conflicting federal and state law if.
John C. Calhoun would be proud of them, but they are wrong. It makes no difference that states are not categorically required by federal law to participate in Medicaid. The federal courts have voided that section of the state Constitution. They did not do so provisionally. There is no conflict between state and federal law.
If that were not so, the governor's ruse of a privately endowed trust fund for rape victims wouldn't help. Amendment 68 forbids the use of public funds for abortions, not just tax receipts. The authors chose the term "public funds" to block such devices. Funds collected under a government rubric to meet a government obligation are public funds.
Officials of the state Human Services Department supported the governor's view. They thought they had almost no chance of winning the suit to force them to halt Medicaid entirely. To suggest that the state must abandon services that are vital to the life and health of hundreds of thousands of people and that has been considered so almost unanimously by governors and legislators for 25 years is to say that the law is not only scandalously perverse but absurd.
If the state's lawyers cannot win such a case, we need more continuing legal education than anyone imagined.
Print headline: "Huckabee sideshow much ado about nothing" August 16, 1996.