The New Negative Rights: Abortion Funding and Constitutional Law After Whole Woman's Health

• Publication year: 2021
• Citation: Vol. 96

96 Nebraska L. Rev. 577. The New Negative Rights: Abortion Funding and Constitutional Law After Whole Woman's Health

The New Negative Rights: Abortion Funding and Constitutional Law After Whole Woman's Health

Mary Ziegler(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 577

II. The Hyde Amendment and the Redefinition of Conscience ............................................ 580
A. Pro-Lifers Develop an Argument for Public-Funding Bans .............................................. 581
B. More Complex Conscience Arguments Emerge ..... 585
C. Conscience Arguments Multiply ................... 589

III. The Hyde Amendment and the Revival of the Right-Privilege Distinction ............................ 596
A. Pro-Lifers Look for a New Litigation Strategy ...... 598
B. The Court Considers the Constitutionality of the Hyde Amendment ................................. 604

IV. The Hyde Amendment After Whole Woman's Health ... 608
A. Whole Woman's Health Redefines the Undue Burden Test ............................................... 608
B. Reexamining the Hyde Amendment ................ 615

V. Conclusion ............................................ 622

I. INTRODUCTION

More than forty years after it passed, the Hyde Amendment, a ban on the Medicaid funding of abortion, is once again at the center of the abortion wars.(fn1) Hillary Clinton ran in the 2016 Presidential election

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on a platform calling for the reversal of the Amendment,(fn2) and a proposal to overturn the Amendment has well over one hundred co-sponsors.(fn3) Following the election of Donald Trump and Republican majorities in both houses of Congress, the odds that the Hyde Amendment will be repealed have declined considerably; indeed, Trump has promised to make the Hyde Amendment a permanent law rather than an appropriations bill.(fn4) The amendment remains at the epicenter of abortion conflict.

For the most part, critics of the Hyde Amendment argue that it authorizes discrimination against poor women. Using original archival research, this Article argues that the impact of the Hyde Amendment has been much further reaching. Champions of the Hyde Amendment defined a right of conscience-based objection that increasingly defines conflicts over same-sex marriage, contraceptive access, and abortion.(fn5) During the fight for the amendment, pro-lifers refocused debate about conscience on the symbolic, rather than tangible, burden placed on believers with moral objections-a move that

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laid the foundation for the expansion of conscience-based arguments in later years.(fn6)

Constitutionally, the fight for the Hyde Amendment also revamped the right-privilege distinction (or the distinction between positive and negative rights) in constitutional law. Proponents of the amendment recognized that in a series of cases about welfare benefits, the Supreme Court had viewed the distinction with skepticism. Pro-lifers tried to revive the distinction by urging the Court to focus on whether the obstacles facing a woman seeking abortion were created or controlled by the government rather than by outside forces. This approach has influenced both abortion doctrine and constitutional law more broadly.

Although the Hyde Amendment seems to be a permanent feature of the political landscape, the Court's recent decision in Whole Woman's Health v. Hellerstedt makes a challenge to the Amendment both realistic and compelling.(fn7) The Court explained that Casey's "undue burden" test requires a balancing of the benefits and burdens created by any abortion law, including a fetal-protective regulation.(fn8) As importantly, the Court's decision rejects the formalism that once defined abortion jurisprudence.(fn9) In determining whether a law burdens abortion, the Court looks beyond the formal terms of a law to the way it interacts with forces beyond the government's control.(fn10) Whole Woman's Health undermines the core premises of both the Hyde Amendment and the Supreme Court decisions upholding it.

The Court's approach to the undue burden test casts doubt on the constitutionality of the Hyde Amendment and a new generation of abortion restrictions patterned on it, including bans on malpractice insurance for abortion providers, limits on private-insurance coverage for abortion, and laws defunding organizations that advocate or provide abortions. Whole Woman's Health requires a court to scrutinize the claimed benefit of an abortion regulation. Proponents of the amendment have argued that it benefits taxpayers by ensuring they are not complicit in facilitating a procedure that many find morally objectionable.(fn11) However, even when it comes to standing, taxpayers challenging a law need to show that they have "sustained or [are] immediately in danger of sustaining some direct injury as the result of its enforcement and not merely that he suffers in some indefinite way in common with people generally."(fn12) There is no proof that the Hyde

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Amendment protects individuals with conscience-based objections from a direct burden or injury more than any other spending measure would.

Whole Woman's Health also casts the effect of the Hyde Amendment in a new light. The Court defines impermissible burdens far more broadly, dignifying the impact of delays, significant cost increases, and declines in the quality of care.(fn13) Moreover, Whole Woman's Health also instructs courts to stop looking at the formal terms of a law in isolation. By exploring how a law interacts with market forces, hospital policies, and individuals' economic circumstances,(fn14) the Court rejected the approach long used to justify the Hyde Amendment and a variety of new laws based on it.

The remainder of this Article proceeds in four parts. Parts II and III trace the influence of the Hyde Amendment on key dimensions of contemporary constitutional dialogue. Part II considers how proponents of the Hyde Amendment redefined conscience-based objection, dropping any requirement for direct injury or involvement on the part of taxpayers. Part III traces the deployment of formal distinctions between positive and negative rights in the Hyde Amendment debate. Drawing on this history, Part IV reconsiders the constitutional case against the Hyde Amendment and similar laws under Whole Woman's Health, and Part V offers a brief conclusion.

II. THE HYDE AMENDMENT AND THE REDEFINITION OF CONSCIENCE

Conscience-based objections seem to be everywhere in contemporary constitutional debate. States have introduced exemptions for cake bakers, ministers, government workers, counselors, and many others who object to same-sex marriage.(fn15) Conscience is at the center of attacks on the contraceptive mandate of the Affordable Care Act.(fn16)

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Antiabortion groups use the idea of conscience in justifying new legal restrictions, including bans on private-insurance coverage for abortion.(fn17)

While the omnipresence of conscience arguments is new, the particular claims that now attract so much attention developed decades earlier as part of the campaign for the Hyde Amendment. The effort to ban public funding for abortion began almost before the ink had dried on the Roe v. Wade opinion.(fn18) To be sure, before the Hyde Amendment passed, opponents of abortion focused on a fetal-protective constitutional amendment, not a funding ban.(fn19) Nevertheless, between 1973 and 1976, conscience-based arguments-forged in the battle for a funding ban-became a central dimension of pro-life advocacy. At first, in state battles about funding bans, supporters primarily emphasized that nonmedical abortions fell outside the scope of Medicaid, a law designed to cover only needed health procedures.

By the mid-1970s, as this Part next demonstrates, the issue of conscience had moved to the forefront. Abortion-rights supporters prioritized a challenge to efforts on the part of Catholic hospitals to deny abortions, convincing some pro-lifers that an attack on believers' religious objections to abortion was underway. But as this Part establishes next, the ideas of conscience developed in the context of defending Catholic hospitals spread far more broadly. Pro-lifers' claims about conscience departed from the ones that had defined protest against the Vietnam War. Rather than looking at the degree of involvement a believer had, pro-lifers urged lawmakers to focus on the symbolic result of a spending bill: absent a funding ban, pro-lifers would be compelled to pay for abortion and thereby speak a message about the morality of abortion that they could not stomach. This idea of conscience has cast a lasting shadow. No matter how indirect a believer's involvement, symbolic complicity has served as a powerful tool for those seeking an exemption from otherwise applicable obligations.

A. Pro-Lifers Develop an Argument for Public-Funding Bans

Conscience-based arguments for funding bans were not initially a major part of antiabortion strategy. Indeed, in the early years after the Court's decision in Roe, abortion opponents privileged an amendment to the Constitution that would ban abortion coast to coast.(fn20) In spite of the movement's preoccupation with a constitutional amend-

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ment, pro-lifers also considered a variety of incremental restrictions, including state or federal bans on the public funding of abortions.(fn21) At a 1973 meeting, members of the National Right to Life Committee (NRLC) framed a funding ban primarily as a way to protect poor, minority women from abuse.(fn22) This argument, honed in the lead-up to Roe, tied the movement for abortion rights to past campaigns for population control or eugenic legal reform.(fn23) While this argument glossed over differences in the membership and goals of these movements, pro-lifers took advantage of the fact that some supporters of abortion rights used the...