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Rights and the Hyde Amendment

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David Nieporent says:

But a right means the government can’t stop you from doing something; it doesn’t mean that you have some claim on anybody else’s wallet to give you that thing.

There are a number of potential misconceptions here. First, not all rights are constitutional rights. Second, there’s nothing inherent about rights that they be merely “negative” rights. Third, as Cass Sunstein and Stephen Holmes correctly point out, even the enforcement of “negative” rights requires substantial state expenditures (and hence claims on “other people’s wallets”), making the distinction between “positive” and “negative” rights itself problematic. And finally, leaving aside the fact that there are other constitutional traditions than the American one, even the primarily “negative rights” American framework recognizes positive rights. Most obviously. the Sixth Amendment’s right to counsel has been construed to require that taxpayers provide legal counsel, even if libertarians would prefer that the law in its majestic equality merely prevent the state from denying rich and poor defendants alike access from the lawyers they have on retainer.

With respect to the issue under discussion, the Hyde Amendment, the issues of constitutional rights are more complex than they may appear at first glance. There are other cases in which the Constitution mandates a positive right in any plausible long-term political context; Brown v. Board, for example, does not require the state to provide public schools but does require that if the state does provide public schools that they be provided equally to whites and African Americans, which (at least if taken seriously) requires the spending of taxpayer money. The Hyde Amendment presents such an issue. There is not a constitutional right to medical treatment; however, if the state provides medical treatment it does have a constitutional obligation to provide such benefits impartially. It’s a difficult case, but denying funding to a medical procedure not for reasons logically related to the purpose of the program but to obstruct the exercise of a fundamental right does in fact raise a difficult constitutional question and at least arguably a violation of constitutional rights.

And lest you think this is some kind of crazy-left wing notion, the court’s conservatives — including Scalia and Thomas — have held that the state is obligated to provide money from taxpayer wallets to religious student newspapers if it provides funding for other publications. And this case goes further, in the sense that providing state funding to religious organizations arguably violates the Establishment clause, while nobody believes that current doctrines make Medicaid unconstitutional. At any rate, most people across the ideological spectrum accept that there are cases in which the state’s arbitrary use of its spending powers raises a constitutional violation, and hence Nieporent’s description of American constitutionalism is inaccurate. And it’s therefore perfectly reasonable for Ann to describe the Hyde Amendment as not only awful public policy but an interference with reproductive rights.

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