At a panel during last week’s Republican National Convention, Rep. Michael Burgess (R-TX) strongly suggested that he believes Medicare is unconstitutional — before going on to say that its constitutionality doesn’t matter so long as it is used to achieve conservative ends. Burgess’ comment arose during a discussion of whether the Constitution permits the federal government to enact broad tort reform legislation:

The other problem that we have is the — I don’t want to say it is a problem — but the Tenth Amendment. If we do something at the federal level that changes law at the courthouse, at the state level, that is problematic. . . .

I do like the concept, and, uh, this is something I’ve talked about for a long time. Medicare is a federal system. They’ve already violated the Tenth Amendment so many times that everybody’s immune to it. So if you have, in the Medicare system, a separate liability system where doctors are covered under the Federal Tort Claims Act like they are in federally qualified health centers, you could remove that balance item off the doctor’s balance sheets.

Watch it:

To decode this a bit, tort reform has long been a major goal of conservative policy makers who claim, despite significant evidence to the contrary, that it would decrease health costs for ordinary Americans. Unfortunately for tort reformers, many of their conservative allies also believe (falsely) that federal tort reform violates the Tenth Amendment of the Constitution.

Burgess suggests squaring this circle by somehow laundering tort reform through Medicare — such as by having one set of medical malpractice laws for care paid for by Medicare and another, entirely separate system for other care. In Burgess’ words, this would avoid the Tenth Amendment problem conservatives imagine because Medicare “already violated the Tenth Amendment so many times that everybody’s immune to it.”

So there you have it. Burgess seems to think Medicare, or at least much of Medicare, is unconstitutional. But that’s okay, because Medicare can still be used to achieve unconstitutional ends, so long as those ends are conservative. The Constitution is the Supreme Law Of The Land — except when conservatives want it to say something else.

Rep. Rick Berg (R-ND), the candidate for Senate from North Dakota, once voted for a bill that would have made any woman who obtained an abortion guilty of a homicide crime — even if it were in the case of rape or incest. Indeed, the bill Berg supported does not even contain an explicit exception if an abortion is necessary to save the woman’s life.

In 2007, Berg was among the small number of state representatives in the North Dakota House who supported the measure. It also would have imposed penalties on doctors and anyone else who “aids, abets, facilitates, solicits, or incites” a person into an abortion:

A new section to chapter 12.1-16 of the North Dakota Century Code is created and enacted as follows:

Intentional termination of human life – Preborn children. A person is guilty of a class AA felony if the person intentionally destroys or terminates the life of a preborn child. A person that knowingly administers to, prescribes for, procures for, or sells to any pregnant individual any medicine, drug, device, or other substance with the specific intent of causing or abetting the termination of a preborn child is guilty of a class AA felony. A person that intentionally or knowingly aids, abets, facilitates, solicits, or incites a person to intentionally destroy or terminate the life of a preborn child is guilt of a class C felony. For purposes of this section, “preborn child” includes a human being from the moment of fertilization until the moment of birth.

A class AA felony carries a maximum sentence of life without the possibility of parole in North Dakota. Chapter 12.1-16 of the North Dakota Century Code is the section of that state’s law that covers homicide crimes such as murder or manslaughter.

Although one news outlet claims that Berg’s bill contains an exception “when the life of the mother is endangered” such an exception does not appear in the bill’s text. The language of the bill quoted above creates a new homicide crime without any exceptions whatsoever. It is possible that a woman who obtained an abortion to save her life could invoke a provision of North Dakota law permitting self-defense to prevent “imminent unlawful bodily injury, sexual assault, or detention,” although even this is not certain because a life-threatening pregnancy is not “unlawful.”

Berg was quick to denounce the comments of a fellow Senate Candidate, Rep. Todd Akin (R-MO), when he claimed that a woman couldn’t get pregnant from “legitimate rape.” Berg called the statement “insulting and reprehensible,” and “condemn[ed] them in the strongest terms possible.” But the assertion that a rape victim should be put in jail for not wanting to carry the child of her rapist is equally abhorrent. It is also largely unpopular — though the country is often split on abortion rights, 75 percent of Americans believe that abortion should be legal in the case of rape or incest.