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My Annual Lecture on the Hyde Amendment and “Positive Rights”

[ 69 ] January 29, 2011 |

It seems as if at least once of year a conservative comes to explain that it’s silly that any liberal would complain about the Hyde Amendment, because it’s absurd to think that there could be any “right” to taxpayer funding.    We’ve just gotten another example. So I guess once again I have to explain that the constitutional problems with the Hyde Amendment reflect banal principles that people across the political spectrum subscribe to.

The argument made by people who don’t understand the issues is that there couldn’t possibly be a constitutional problem with the Hyde Amendment because American constitutionalism only protects “negative” rights — it’s a contradiction in terms for there to be a “right” to taxpayer funding.   The problem with this argument is that it isn’t true.   First of all, there are explicit “positive” rights in American constitutionalism, most prominently the Sixth Amendment’s right to counsel.    In addition to this, there are plenty of other examples of cases where there isn’t a right to government assistance per se, but when a program is created it cannot arbitrarily exclude people.    There isn’t a right to education, but states cannot provide (at least in theory) an unequal education to some groups.   Of even more direct relevance, the Supreme Court has held that if a state university funds secular publications it must also fund religious publications, although there’s obviously no right to taxpayer-funded publications per se.    (And that’s a tougher case, because there’s a plausible argument that such subsidies violate the First Amendment.)   Indeed, the Court’s conservatives have pushed this reasoning even further, recently arguing in dissent that religious groups are entitled to taxpayer money even if they refuse to comply with neutral antidiscrimination criteria.

So the constitutional arguments against the Hyde Amendment are hardly based on some alien, un-American reasoning.    There isn’t a constitutional right to health care, per se, but having established a health care program the government can’t arbitrarily exclude a class of persons from the benefit.   Proponents of the Hyde Amendment don’t even pretend that the exclusion of funding for most abortions is based on a legitimate neutral criterion (such as expense or medical necessity); its core purpose is to obstruct the exercise of a fundamental right.   The constitutional problems with this are obvious, and don’t require arguments different than those that have been advanced by Scalia, Thomas, Rehnquist, Alito et al. in different contexts.

But even if for the sake of argument we say that the Hyde Amendment is constitutional, it doesn’t change the fact that it’s disgraceful public policy.   There’s no good reason to prevent poor women from obtaining a medical procedure that is often necessary to preserve their health.  As for the arguments that it’s wrong to subsidize behavior that some taxpayers consider immoral, please.   I’ll entertain that line of reasoning as soon as I get a refund for the tax proceeds I’ve contributed to the Iraq War or paying John Yoo’s salary.

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Comments (69)

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  1. Joe says:

    John Hart Ely eloquently criticized the Hyde Amendment even given his famous (imho poorly reasoned on various grounds) anti-Roe article. He later, fwiw, supported Roe on precedent grounds, writing a letter to the Casey trio in support.

    Justice Ginsburg also has argued that abortion is as much a class issue as a gender one.

    It also is a religious one. Having a selective few, mainstream Catholics disagreement on the religion’s stance on birth control underlines how the tag wags the dog here, set policy per their radical religious views like this to me is probably a violation of the 1A. The district court suggested as much in the case you cited. It surely is bad policy.

  2. joe from Lowell says:

    Certainly, the equal protection clause means that classes of people can’t be discriminated against in the provision of a benefit that the government chooses to provide.

    My question is, what’s the “class” that’s being discriminated against under the Hyde Amendment?

    Is this a “disparate impact” argument, based on the fact that only women seek abortions? If so, would that make a decision not to fund boner drugs equally discriminatory, because only men seek boner drugs?

    Or is the “class” people-who-seek-abortions? And in that case, wouldn’t a decision not to fund any procedure X or drug Y be open to the same charge of discrimination?

    • Scott Lemieux says:

      wouldn’t a decision not to fund any procedure X or drug Y be open to the same charge of discrimination?

      Only if:

      1)the exclusion of funding was intended to obstruct the exercise of a fundamental right, and

      2)could not be justified on neutral grounds.

      • joe from Lowell says:

        Still not clear on what the class is.

        • Joe says:

          poor women who need abortions; as Stevens notes in the link Scott provides, there is no legitimate state interest because the health of the women trumps the protection of the embryo/fetus per Roe. Not seeing where a similar compelling concern is present for giving poor guys Viagra.

          • R.Johnston says:

            Contrary to popular belief, Casey overruled Roe. Under Casey as actually applied, any abortion restriction short of an outright ban or a spousal consent requirement is allowed because it doesn’t impose an “undue burden.” Maternal health was completely written out of the analysis by the most recent Carhart decision, and protection of the fetus never was part of the analysis.

            This is very bad and irrational law, but it is, in fact, the law under the current state of the Supreme Court’s abortion jurisprudence.

            • Joe says:

              “was completely written out of the analysis”

              no it wasn’t. The opinion noted that Congress found health was not at risk and if it was, it left open as applied challenges. The dissent said it was at risk under expert medical understanding and the as applied challenge wasn’t good enough.

              It quoted Casey to do this. Stenhart v. Carhart also came after Casey. 2/3 of the plurality agreed it was a proper application.

              “any abortion restriction short of an outright ban”

              doesn’t say that. it watered down the test, but spousal consent and complete bans aren’t the only things disallowed. Again, it left as applied challenges open to even things like waiting periods if an “undue burden” could be shown.

              “as actually applied” in lower courts, things other than bans were disallowed

      • R.Johnston says:

        Under Casey Congressional intent plays no role whatsoever in abortion analysis. Sure, that makes abortion analysis different from all other analysis, but that’s just the way things are. If 24 hour waiting periods are Constitutional, so’s the Hyde Amendment.

        That the Hyde Amendment is constitutional under current abortion jurisprudence is outrageous but also true.

        • Scott Lemieux says:

          The Supreme Court upheld the Hyde Amendment even before Casey; what the current doctrine is isn’t the issue.

          • R.Johnston says:

            Before Casey upholding Hyde was indefensible from any point of view that regards the rule of law as having any importance at all. Before Casey the opinion upholding the Hyde Amendment was every bit the extralegal gibberish that Bush v. Gore is.

            After Casey and the various cases elaborating on it, the Hyde Amendment is just another government act that doesn’t impose an undue burden, and an undue burden is unrelated to burden and instead relates only to the power of someone other than a woman or her doctor to actually veto an abortion. Any and all burdens short of bans have been allowed, and state interest simply is not part of the analysis under the under burden standard.

            This isn’t extralegal gibberish like upholding Hyde before Casey; it is very dangerous and authoritarian law that allows the state to act regardless of state interest, but it is law in that there’s a coherent principle that can be and has been applied fairly consistently.

            • Joe says:

              “extralegal gibberish that Bush v. Gore is”

              way to legitimate Bush v. Gore.

              The reasoning, if wrong, was that the state wasn’t directly infringing on the choice by not paying for it. Economic discrimination was (in Scott’s opinion wrongly) upheld in other cases too, such as in school choices. This is more valid than Bush v. Gore.

              Casey in effect made the right to abortion open to medium scrutiny. You make it out (other than for some reason spousal notification) to be rational basis review. This is a Rehnquist-like watering down of precedent and luckily the lower courts don’t agree with you yet.

      • David M. Nieporent says:

        But it doesn’t “obstruct” the exercise of the right. Joe has it exactly right; and I would add to his point that disparate impact is not unconstitutional.

        Additionally, as I point out every time you raise this argument, the Sixth Amendment is not a positive right. You cannot apply to the government and say, “I want a lawyer. Hire one for me.” It’s the negative right not to be prosecuted without a lawyer. If the government refuses to appoint you a lawyer (and you can’t afford one on your own), the only consequence is that you are released from custody.

        • Joe says:

          First, let me note that the discussion is about watering down the ‘rape’ exception.

          Second, I think it does obstruct the right and thought the dissent was right even in Maher (“non-therapeutic abortions” as if many are), but realize there are levels of wrong. This isn’t really the place to go in detail.

          As to the 6A, yes. Once the state prosecutes, it requires you to supply you a lawyer. And, once the state sets up a government spending scheme, it has to be done w/o violating the Constitution. For instance, only funding Catholic hospitals.

          The positive/negative line at times sounds like the hazy line between procedural/substantive due process in certain situations.

  3. anon says:

    your point applies even to rights that are not fundamental. There is no right to appeal a criminal conviction, but if State provides appeal, the DP and EP clauses require appointing counsel for indigent defendants.

  4. There isn’t a right to education

    Not in the US Constitution, but in subsequent international conventions like the Universal Declaration of Human Rights, to which the US is a signatory and ratifier…..

    • (the other) Davis says:

      Ah, but the UDHR is a declaration, not a treaty, and is thus not legally binding (only morally binding). Even if we were to treat it as a treaty, there would almost certainly be some argument over whether the document was self-executing.

      • The Constitution isn’t exactly clear on how rights are supposed to be implemented, either. Doesn’t change the fact that the rights as enumerated are binding.

        • (the other) Davis says:

          It’s not a question of how they’re implemented, but rather a question of whom the signatory has obliged itself to. If the US signs a non-self-executing treaty, then it has a non-enforceable obligation to the other signatories to subsequently implement laws pursuant to the terms of the treaty. But the government has no legal obligations to the citizenry prior to passing legislation implementing the terms of the treaty — no US citizen can obtain legal redress pursuant to the terms of a non-self-executing treaty.

          Of course this is irrelevant to the UDHR, as that document is not actually a treaty, but rather a declaration of principles.

  5. Bart says:

    Did anyone ever investigate whether Hyde’s partner in adultery had an abortion?

    • hv says:

      Hyde was an adulterer grandstanding about Lewinsky/Clinton, all the way to impeachment.

      I doubt a stray abortion would’ve cramped his style.

  6. WrongfulDeath says:

    I’m poor. I qualify in every way to exercise my explicit individual second amendment right but cannot afford a gun. If I was rich, I could buy one, but because I’m poor, the government needs to fund a gun for me so that I won’t be discriminated against.

    • Flowers says:

      I really wish you would use your Fifth Amendment right to remain silent. I would pay you for that.

      • asdfsdf says:

        I’m poor, so obviously it is the government’s duty to pay him to shut up for me.

        • Flowers says:

          Is there a Bad Analogy Parade going on that I somehow stumbled into the middle of? Is that why I keep seeing all these steaming piles terrible analogies?

          • asdfsdf says:

            I felt that explaining the irony would be unnecessary and thus weaken the message. I forgot that this was the internet, bane of irony.

    • Anonymous says:

      As has been explained to you several times: you aren’t being excluded from any existing government program. If Government ceased to provide any health care for anyone at all, there would be no potential constitutional issue.

      If a government program was created to provide free firearms to those below a particular level of income, but excluded some class of those low income people on entirely arbitrary grounds, you’d have a point.

    • joe from Lowell says:

      If the government had a program to help poor people obtain some category of goods, of which guns were a subset (the way the government has programs that help poor people obtain medical care, of which abortion services is a subset)…

      but the government did not allow funds to be spent on guns (the way the Hyde Amendment does not allow government funds to be spend on abortion)…

      and “people who want guns” was a class of people (like pregnant women who need abortions)…

      then you’d have a point.

      But, you see, none of those things are true. So, no.

      • David M. Nieporent says:

        Presumably you mean women who want abortions, since women who need abortions aren’t covered under the Hyde amendment. And “Women who need abortions” isn’t a class anyway.

    • joe from Lowell says:

      Also, the Supreme Court got it wrong when they defined the right to keep and bear arms as a fundamental right.

      Listen to the gun nuts babble about an armed populace keeping the government in line, and about “2nd Amendment remedies.” They never tire of pointing out that the right to bear arms wasn’t created for hunting and targeting shooting, but as a way to prevent the government from intruding on people’s rights, like life, property, freedom of religion, etc. This is not the anti-gun people’s take on the right; it’s the NRA’s take.

      Well, a right that existsfor the purpose of protecting other rights is the very definition of a secondary right, not a fundamental right.

    • DrDick says:

      You are also brain dead and I enthusiastically support the government paying for you to get a brain transplant.

  7. [...] This post was mentioned on Twitter by Amanda Marcotte, Melissa Gira Grant, Ernie Vogel, E.G., Jenny Thurman and others. Jenny Thurman said: RT @AmandaMarcotte: http://bit.ly/hkuX8L Hyde and HR3 are sexist discrimination. HR3 adds discrimination against rape victims to the pil … [...]

  8. WrongfulDeath says:

    </strong>Also,the Supreme Court got it wrong…

    The problem with this poster’s statement is he/she likes to cite the Supreme Court when they like the outcome when it promotes their agenda, but when it doesn’t……not so much.

  9. WrongfulDeath says:

    Amanda Marcotte…what a DUCHEBAG

    This is the same person who implicated the Duke LaCross team without any real evidence.

    Then she scubbed her website. She’s a terrible person to rely on for facts.

    • Joey Maloney says:

      The boldface and stupid spelling errors are persuasive, but not dispositive. But I bet if you posted the same thing, but in ALL CAPS as well, your brilliant argument would carry the day.

    • Tyto says:

      What’s even more compelling is WD’s willingness to argue against an automatic post generated by a link to another blog hosted by the same provider.

  10. WrongfulDeath says:

    “If a government program was created to provide free firearms to those below a particular level of income, but excluded some class of those low income people on entirely arbitrary grounds, you’d have a point.”

    I think I understand what your point is. However, the distinction made by the Hyde Amendment is “forced” or not forced and it’s hardly arbitrary.

    Those who were not forced made a choice and what this amendment is saying is the taxpayers should help those who didn’t have a choice but not support those who engaged in bad behavior.

    However, if you still insist that this is arbitrary, then don’t fund any of ‘em. That’s a solution to your constitutional problem that you have not explored.

    I’d like to, again, point out that this is really all about the money and who foots the bill.

    • DrDick says:

      Those who were not forced made a choice and what this amendment is saying is the taxpayers should help those who didn’t have a choice but not support those who engaged in bad behavior.

      So you admit this is about forcing your version of morality on the rest of the country and not on any actual constitutional principle. Unfortunately for your argument, the available evidence makes it quite clear that what you consider “bad behavior” is considered normal by most Americans. It is also a fact that married women also get abortions for a variety of reasons. Are you suggesting that they should hot have had sex as well? sort of runs counter to conservative arguments against same sex marriage.

    • Scott Lemieux says:

      Those who were not forced made a choice

      No no no no no no no no no no no no. If you were raped you either didn’t make a choice or are legally incapable of making the choice. Jesus.

    • DocAmazing says:

      I’d like to, again, point out that this is really all about the money and who foots the bill.

      Do you really want to make the argument that taxpayers can and should withhold money that pays for things they don’t approve of?

      The Department of Defense would be closed in a week.

  11. WrongfulDeath says:

    “Unfortunately for your argument, the available evidence makes it quite clear that what you consider “bad behavior” is considered normal by most Americans.”

    What’s ‘normal’ about unlawful sex? Isn’t that what all of this discussion is about?

    • SeanH says:

      Wait… do you think that state-funded abortions for rape victims support the rapist? That’s the only way I can make sense of you describing abortions as “support[ing] those who engaged in bad behavior” and now relating that to “unlawful sex”, by which I assume you must mean rape. Is that seriously what you think? Abortions for rape victims benefit the rapist?

    • DrDick says:

      This response is remarkably incoherent even for you. Your statement, which I quoted in my post, specifically said:

      Those who were not forced made a choice and what this amendment is saying is the taxpayers should help those who didn’t have a choice but not support those who engaged in bad behavior.

      You clearly state here that it is consensual sex which you regard as “bad behavior” not rape. Please try to keep your bullshit straight and not shift the terms of the argument when you get caught with your head up your ass.

  12. WrongfulDeath says:

    I understand Scott’s argument and I do find it a compelling legal argument. But I don’t see anything inherently unfair about not funding abortions at the taxpayers’ expense for people who willfully disregarded laws meant to protect them.

    A solution that has not been explored would be not to fund *any* abortions with taxpayer money. This is what we do with the firearm right, the free speech right and a lot of other rights. Most importantly, it solves the discrimination problem for those with their panties in a wad.

    It’s elegant, simple and consistent with other constitutional rights. I doubt if Scott will embrace this solution, however. I believe his goal is not really the constitutionality of the issue, but instead, he seeks his vision of fairness.

    So do I.

    If the courts determine that Hyde is unconstitutional, then I’ll just have to live with it. But until that day….it stands and I’m kinda OK with that.

    • SeanH says:

      You’re making even less sense than usual. Since you haven’t responded to DrDick’s and my questions above, I’ll spell it out for you.

      You said, in reference to poor women being denied abortions:

      But I don’t see anything inherently unfair about not funding abortions at the taxpayers’ expense for people who willfully disregarded laws meant to protect them.

      What law do you think these women have broken?

    • Malaclypse says:

      But I don’t see anything inherently unfair about not funding abortions at the taxpayers’ expense for people who willfully disregarded laws meant to protect them.

      Okay, I did take the pledge. But I do wish to point out that Mr Wrong is now conflating consensual sex with “disregard[ing] laws meant to protect.”

  13. mpowell says:

    So I agree that the general form of many arguments in favor of the constitutionality of the Hyde amendment are not at all compelling. I also strongly disagree with the amendment on policy grounds. But I do not understand in detail the positive argument that the Hyde amendment is unconstitutional and I don’t think you’ve really elaborated one here. Is there another post where you do so? I am thinking that the argument would simply be that the government is providing health care, but that does not include abortions. It may also not include, say, certain forms of end-of-life care. How do you establish a difference between these that makes one constitutional and the other not? I think arguing that the Hyde amendment is a class discrimination problem requires some careful legal explanation of what that means and how it relates to the specific impact of the Hyde amendment (of which I am only generally familiar). I’m actually curious here and just wondering if anybody could point me to a more detailed argument.

    • Bijan Parsia says:

      I’ve been thinking about this, and I think I have a version that should be easy enough to understand. It’s nothing new and plenty of variants appeared on the prior post.

      Assume two principles:

      1) There are grounds for differential treatment in the administration of certain programs which are not permissible. In general, arbitrary or discriminatory or rights violating grounds are forbidden. Grounds which have a patina of non-arbitrariness but are functionally arbitrary, discriminatory or rights violating are likewise forbidden.

      The implication of 1 is that we are constrained in how we can grant positive rights and benefits.

      2) Currently, pre-viability abortion *itself* is a “protected” activity, i.e., one where prohibition is forbidden, and the standard regulatory interests (prenatal life and the woman’s health) are fairly weak. (Woman’s health pulls for well-performed abortions.)

      The implication of 2, I would say, is that you have to be careful that your programs aren’t functionally discriminatory i.e., targeted at abortion per se.

      The case is particularly clear in the disgusting Republican redefinition of rape. Consider a non-pregnancy rape related medical situation, say a contracted STD. What possible non-arbitrary, non-discriminatory grounds could there be for distinguishing between, say, forcible and statutory rape? (And the policy is even more obviously disgusting. I hope.) Treating the STD is a standard medically required course of action. And, for many of them, it’s cheap.

      So, if you *didn’t know* it was abortion per se, but only a rape induced medical condition that entailed considerable medical risks to the health of the mother, but could be fairly cheaply be treated, what possible grounds could you offer for funding the treatment of one category of raped women?

      It’s pretty easy to generalize from there. There are lots of procedures which are standard treatments whose morbidity and mortality profile are similar or more benign than the pregnancy case.

      So, we have a medical situation where there is a well-established, low-risk, low-cost procedure. Not every person in that situation may choose to have that procedure (and note, people turn down all sorts of treatment for all sorts of reasons, including live prolonging/saving cancer treatment so they can use alt “medicine”) and, in point of fact, the same program will offer extensive treatment to them when they do so.

      So what were the non-arbitrary/discriminatory/etc. grounds again?

      (If you follow Scott’s link to the Stevens dissent, you’ll see some detailed argument. I don’t know if it matches with mine above, but:

      If a woman has a constitutional right to place a higher value on avoiding either serious harm to her own health or perhaps an abnormal childbirth [n3] than on protecting potential life, the exercise of that right cannot provide the basis for the denial of a benefit to which she would otherwise be entitled.

      and

      Having decided to alleviate some of the hardships of poverty by providing necessary medical care, the government must use neutral criteria in distributing benefits. It may not deny benefits to a financially and medically needy person simply because he is a Republican, a Catholic, or an Oriental — or because he has spoken against a program the government has a legitimate interest in furthering. In sum, it may not create exceptions for the sole purpose of furthering a governmental interest that is constitutionally subordinate to the individual interest that the entire program was designed to protect. The Hyde Amendments not only exclude financially and medically needy persons from the pool of benefits for a constitutionally insufficient reason; they also require the expenditure of millions and millions of dollars in order to thwart the exercise of a constitutional right, thereby effectively inflicting serious and long-lasting harm on impoverished women who want and need abortions for valid medical reasons. In my judgment, these Amendments constitute an unjustifiable, [p357] and indeed blatant, violation of the sovereign’s duty to govern impartially.

      seem to.)

      • mpowell says:

        Okay, I think I follow your argument. It sounds reasonable, although it definitely falls into a region of supreme court decision-making that some people would call reading rights into the constitution. I don’t have a problem with that personally, though, and it’s interesting to see Stevens essentially make the argument here.

        On a side not, I am also not a big fan of the practice of forming links out of text without really indicating where they go. I’m not going to click on every link and the URL doesn’t always tell you very much.

  14. DrDick says:

    But I don’t see anything inherently unfair about not funding abortions at the taxpayers’ expense for people who willfully disregarded laws meant to protect them.

    WTF are you talking about here? this makes no sense on its own or in relation to you larger argument. There is no law against having consensual sex, which is the area where the Hyde Amendment prohibits abortions. And before you wander off into the weeds, minors cannot have consensual sex by legal definition (that is what “age of consent” laws are all about).

    We have in fact explored the idea of not funding any abortions extensively over the past century or so and the American people, along with the medical community, have categorically rejected that idea. The fact remains that there are significant number of conditions which make abortions medically necessary to save the life of the mother. Likewise, while many Americans are uncomfortable with the idea of “abortion on demand”, they generally support fairly broad access. You really need to face the reality that your opinions are not supported by the medical community or by most Americans.

  15. WrongfulDeath says:

    “We have in fact explored the idea of not funding any abortions extensively over the past century or so and the American people, along with the medical community, have categorically rejected that idea.”

    Do not delude yourself.

    http://www.gallup.com/poll/118399/more-americans-pro-life-than-pro-choice-first-time.aspx

    • DrDick says:

      Once again you display a profound lack of reading comprehension (both of my statement and the polling report you cite). There is nothing in that report that contradicts anything I said. A large majority in that poll (76%) favor keeping abortion legal, while only 22% support your position. Polling on labels (like “pro-life” vs pro-choice)is notoriously unreliable. More Americans self identify as conservatives than liberals, but for the past 30 years have overwhelmingly supported liberal policies (by 65-75%) rather than conservative ones. When you poll on the details of peoples positions on abortion (which is not included in that poll), they really only want relatively modest restrictions.

  16. WrongfulDeath says:

    You are more interested in “gotcha” than really discussing the issue.

    The American people did not reject anything. The American people, through a democratic process, made abortion unlawful. Nine justices overturned the will of the people claiming an implied right based upon another implied right (privacy).

    And NOW today, and again through a democratic process, the Hyde amendment says “no funding” for some abortions.

    So, when you claim the people have rejected lack of funding of abortions, you’re simply full of crap.

    • Malaclypse says:

      The American people, through a democratic process, made abortion unlawful.

      And then, through a democratic process, began changing those laws, a change soon codified through Roe.

      By the end of 1972, 13 states had a law similar to that of Colorado, while Mississippi allowed abortion in cases of rape or incest only and Alabama allowed abortions only in cases where the mother’s physical health was endangered. In order to obtain abortions during this period, mother would often travel from a state where abortion was illegal to states where it was legal.

      Nine Five justices overturned the will of the people claiming an implied right based upon another implied right (privacy) that counting Florida votes would make George Bush sad.

      Leaving aside your inability to count, I trust you are equally upset about Bush v Gore?

    • hv says:

      Your precis has captured the nature of this thread with the exact same fidelity that it has interpreted the history of democracy process.

      Well played.

  17. WrongfulDeath says:

    yeah, it’s all about ‘gotcha’.

    Hyde is the law of the land.

    GOTCHA

  18. [...] you should have a right to equal access to abortion funding as for any other health care funding. Restrictions on abortion care are sexist discrimination.  But by putting rape victims into a hierarchy, where 70 percent of rapes aren’t considered [...]

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