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

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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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