Conditional Spending and Compulsory Maternity
More than 45 million Americans are uninsured, and even more are seeking government assistance accessing healthcare, rendering the conditions placed on government spending a timely and significant issue. Federal funding often demands a sacrifice of the recipient, meaning that Congress can condition the receipt of federal funds on certain statutory prerequisites. Given the demand to expand the nation's major public healthcare programs, it is important to reconsider the Supreme Court's Spending Clause jurisprudence. The Court's major decisions regarding conditional spending have facilitated a disconnect that analytically separates the individual from the conditional spending program, a divide that has allowed Congress to impinge on individual rights when it could not otherwise do so. The Court's decisions allowing government to burden the privacy right to obtain abortion by withholding funds in public healthcare programs, particularly Medicaid, provide a striking example of this disconnect. The so-called Hyde Amendment and the jurisprudence upholding its constitutionality spawned many similar federal funding limitations; at least eight federal laws prohibit spending on abortion and related services. This article divides these statutes into two categories and dubs them "pure funding statutes" and "conscience clause funding statutes." The number of pure funding and conscience clause funding statutes highlights the breach created and maintained in the law between the condition on spending and the individual at the macro level and protecting women's reproductive access at the micro level. This article suggests that the Court's existing test for the constitutionality of conditions on federal spending could protect the interests of individuals when applied in full, which has not been the Court's practice. The article also concludes that, given the makeup of the Roberts Court and the balance of Congress, the more likely solution is one of legislative constitutionalism. In other words, Congress should remove these funding limitations from legislation, not only because such limitations may be unconstitutional, but also because they represent an ongoing disconnect in the law that aggrandizes the spending power.
Essay: The Limits of Conscience: Moral Clashes over Deeply Divisive Healthcare Procedures
Refusals by individual pharmacies and pharmacists to fill prescriptions for emergency contraceptives (“EC”) have dominated news headlines, from the Washington Post to the Miami Herald. In the act that sparked a firestorm of controversy, an Eckerd pharmacist refused to fill a rape victim’s prescription for Plan B. A few months later, 11 Alabama nurses resigned positions at state clinics rather than provide EC against their moral convictions. These refusals do not seem to be driven by moral concerns about promiscuity, since pharmacists have refused to dispense Plan B to married couples as well. Instead, the refusals reflect moral and religious concerns about facilitating an act that would cut-off a potential human life.
The Criminal Defense of Duress: A Justification, Not an Excuse - And Why It Matters
The enduring puzzle of duress is to explain why defenses of duress like MPC Section 2.09, which exonerate actors who yield to coercive threats that persons of reasonable firmness in [their] situation would have been unable to resist, should provide broader defenses to victims of manmade, coercive threats than corresponding defenses of necessity provide to victims of natural threats. Commentators respond to the puzzle in various ways. Conservative commentators argue that the law ought to abandon defenses of duress like MPC Section 2.09 and return to traditional, common-law defenses of duress which, they contend, have the virtue of being coextensive with necessity. Liberal commentators argue that rather than contracting defenses of duress like MPC Section 2.09, the law ought to expand them to encompass not just man-made, coercive threats but also natural threats in the form of situational duress. Despite their differences, conservatives and liberals appear to agree on two things: (1) the discrepancies in scope between defenses of duress like MPC Section 2.09 and corresponding defenses of necessity are morally unwarranted; and (2) to the extent that defenses like MPC Section 2.09 are broader in scope than defenses of necessity, the former are wholly or partly excuses, not justifications. We believe that commentators are mistaken in all of the foregoing respects. Common-law defenses of duress are not coextensive with defenses of necessity, but rather are considerably broader in scope than necessity. The discrepancies in scope between defenses of duress like MPC Section 2.09 and corresponding defenses of necessity are not morally unjustified, but rather are firmly grounded in practical reason. To the extent that defenses of duress like MPC Section 2.09 are broader in scope than corresponding defenses of necessity, the former are not excuses, but rather are justifications. And, finally, defenses of duress like MPC Section 2.09 ought not to be expanded to encompass situational duress. If they were thus expanded, they would constitute excuses, and, indeed, excuses of an unprecedented kind, because they would thereby subvert the pervasive principle that a person who knows what society demands of him, and who is capable of complying with its demands, ought to do so, hard as it may be for him to resist the temptation not to comply. We also believe that the foregoing mistakes are all products of a common underlying misconception - a misconception concerning the metric by which evils are weighed for purposes of defenses of justification. Defenses of justification are choice-of-evils defenses and, hence, presuppose a metric for assessing and comparing evils. Contrary to what commentators assume, however, the metric by which evils are assessed is not a procrustean one that produces a single ranking that is applicable in all contexts. The metric for assessing evils for purposes of choice-of-evils defenses is a contextualized or moralized metric that takes account of the nature of parties involved, the normative relationships among them, and the causal manner in which the alternatives evils may come about. Accordingly, an evil that is greater than another evil in a certain context may be equal to or lesser than the same evil in another context. This context-sensitive metric is relevant to duress because the features that distinguish duress from necessity - namely, that the pressures of duress are manmade and coercive - are also features that ultimately affect whether given evils are greater than, lesser than, or equal to one another for choice-of-evil purposes.