Friday, June 5, 2009
What will health care reform mean for women? If spending clause jurisprudence remains the same, the net result might be (further) infringement on women's constitutional rights.
Currently, underlying doctrines such as the greater includes the lesser theory and the positive/negative rights theory tend to ignore the reality of the modern government, which wields influence through benefits. . . . . for now at least, the Dole test can facilitate drawing such boundaries if all of its elements are actively analyzed by the Court. The current focus on the federal-state relationship does not protect individuals in federal healthcare programs, nor does it particularly protect states. Though individual rights have not appeared to be particularly important to the majority of the Roberts Court, protecting the states through active federalism doctrine may be. . . . . Congress can change this trend, in a microcosm, by eliminating the Hyde Amendment and other pure funding statutes as well as by balancing conscience clause funding statutes. Conscience clause funding statutes in particular would become potentially unconstitutional under a revitalized Dole regime, as the ability to affect private-pay patients through federal spending truly pushes the envelope of the spending power.
Huberfeld's analysis of Dole is especially compelling; it would be helpful to students looking at applications of Dole. Her conclusion that the Roberts Court would be less friendly to constitutional challenges than Congress will be to eliminating limits on funding statutes remains to be seen.