Conditional Spending and Compulsory Maternity
Nicole Huberfeld | 2010 U. Ill. L. Rev. 751
More than forty-six million Americans are uninsured, and many more are seeking government assistance, which makes congressional spending for federal programs a significant issue. Federal funding often comes with prerequisites in the form of statutory conditions. This Article examines the impact that conditions placed on federal healthcare spend-ing have on the individuals who rely on that spending by exploring the ongoing disconnect between Spending Clause jurisprudence and women’s reproductive rights. The first Part reviews the foundational Supreme Court precedents and places them in context from both a statutory and theoretical perspective. The second Part studies what the author denom-inates “pure funding statutes” and “conscience clause funding statutes.” The third Part explores the contours of conditional spending jurispru-dence in an effort to determine where individual protection may fit within the existing conditional spending jurisprudence. The Article concludes that the Supreme Court could protect the interests of individuals if its ex-isting conditional spending test is 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 better solution could be legislative constitutionalism. In other words, Congress should remove these funding limitations from legislation—not only because such limita-tions may be unconstitutional but also because they represent an ongoing disconnect in the law that aggrandizes the spending power.