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University of Illinois College of Law




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.

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