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.
Conditional Federal Spending after Lopez
This Article argues that the U.S. Supreme Court should reinterpret the Spending Clause to work in tandem, rather than at odds, with its post-Lopez reading of the Commerce Clause. Any substitute for the standard of review set out in South Dakota v. Dole, however, must reconcile two potentially conflicting goals. It must strive to safeguard both state autonomy and the related principle of a federal government of enumerated powers by restricting Congress from using conditional offers of federal funds in order to regulate the states in ways that it could not directly mandate. At the same time it must preserve for Congress a power to spend that is greater and broader than its power to regulate the states directly. Thus, this Article proposes that the Court presume invalid that subset of offers of federal funds to the states which, if accepted, would regulate the states in ways that Congress could not directly mandate under its other Article I powers. This presumption could be rebutted by a judicial finding that the offer of funds constitutes "reimbursement spending" rather than "regulatory spending" legislation. The Article begins by discussing both the problem posed by conditional offers of federal funds to the states and the insights into that problem afforded by traditional formulations of the unconstitutional conditions doctrine. A brief examination of the development of the Supreme Court's jurisprudence in this area and a review of the academic commentary follow. Part II offers three normative arguments which, taken together, demonstrate that the courts should presume invalid those conditional offers of federal funds to the states that seek to regulate them in ways Congress could not achieve directly. Thus, these arguments also explain both why the Dole test needs rethinking and why the proposed test is preferable, if still imperfect. Part III begins with a critique of the major proposals for reforming Spending Clause doctrine that have been offered to date. It then presents the proposed test and explains the operation of, and reasons for, the critical distinction the test makes between "reimbursement spending" and "regulatory spending" legislation. This Part concludes by considering four congressional enactments (two actual and two hypothetical), under both the prevailing Dole test and the proposed test.
The limits of conscientious objection--may pharmacists refuse to fill prescriptions for emergency contraception?
Several reports have detailed cases in which pharmacists have refused to fill prescriptions for emergency contraception. Should pharmacists have the right to refuse access to these medications? This Sounding Board article discusses arguments for and against the right to refuse and proposes a balanced solution to the problem.