For some reason, this Memorial Day Weekend, it occurred to me to compare and contrast soldiers and ACLU attorneys. They both fight for our freedom. The ACLU lawyers don’t die for the cause, so this weekend is justifiably not for them, but they frequently (to paraphrase J.D. Salinger) live humbly for the cause. And, while they do their thing without the physical risk that our soldiers so courageously face, they also do it without much in the way of gratitude. Time after time, they challenge infringements to our rights under the Bill of Rights. I suspect they get so much grief about what they do because they frequently make those challenges on behalf of the less desirable elements of our society; folks every bit as entitled to Constitutional protections, but still we’d rather not hear the bellyaching from these particular people. I respect what the ACLU does, even though they sue my clients from time to time which, I’ll have to admit, is a bit of an annoyance.
Anyway, they are at it again; challenging an Allen County ordinance (h/t Indiana Law Blog) that requires doctors who don’t live in Allen County or surrounding counties or who don’t have admitting privileges to area hospitals to provide contact information to area emergency rooms and the local health department. It looks like at least part of the challenge is going to come from an angle that I suggested when these ordinances hit the news. The trouble Allen County will face is that the practice of medicine in Indiana is already heavily regulated by the State.
As a general proposition, the default setting is that municipalities have a power unless it is specifically withheld. However, once the State undertakes to regulate an area, the presumption shifts to an assumption that municipalities do not also have the power to regulate that area unless the legislature specifically gives them that power. It was this dynamic that resulted in county “Certificate of Need” ordinances being struck down – the counties wanted to protect their county hospitals but the federal courts held that the counties didn’t have the power to enact those ordinances because the State had already taken over the hospital regulation business. I would expect a similar result for Allen County’s abortion regulation statute.
“I suspect they get so much grief about what they do because they frequently make those challenges on behalf of the less desirable elements of our society”
While the above is certainly true, the ACLU also receives “grief” from conservatives because of the ACLU’s selective (partisan?) choice of causes. It is hard for me to fathom, but apparently the official position of the ACLU is that they disagree with the decision in Heller (the Supreme Court case upholding the right to bear arms)? How can an organization which fights for our rights now want to restrict them???
Another example is the recently-passed health care law. Where does the ACLU stand on the requirement that all Americans are now required to enter into interstate commerce and purchase health insurance?