Spending Clause, Unconstitutional Conditions, and Women's Health

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.  

Nicole Huberfeld, a scholar and conlawprof who teaches and writes in both constitutional law and health care (including health care finance), has authored a new article which argues there is a "disconnect" between individuals (especially women) and the spending programs intended to benefit them.   Conditional Spending and Compulsory Maternity is available on ssrn and forthcoming in Illinois Law Review.

Huberfeld argues:

South Dakota v. Dole 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 using other enumerated powers. At a micro-level, the Court’s decisions have allowed government to burden the privacy right to obtain abortion by withholding funds in public healthcare programs. At the macro level, the power to place conditions on spending has created an end-run that has been quite successful, as exhibited by the multiple pure funding statutes and conscience clause funding statutes that result from the Court’s decisions in McRae and Maher. . . .

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.

RR