Private: Ask Cora McRae About Coercive Federal Spending

 

Erin Ryan’s analysis of potential constitutional challenges to environmental laws in the wake of the NFIB v. Sebelius decision makes a strong case that even under the Supreme Court’s new Spending Clause jurisprudence, these laws are constitutionally sound.  (I came to a similar conclusion last year when I asked whether Sebelius casts constitutional doubt on Title IX.)  Ryan’s analysis also makes clear, however, that the fundamental incoherence of the Supreme Court’s coercion analysis in Sebelius means that it is difficult to predict how it will be applied going forward.  While the Court claimed to reason from contract law in finding the terms of the Medicaid expansion so coercive as to render a state’s implementation of the expansion involuntary, it is difficult to imagine the Court finding such a bargain coercive in other contexts.  Consider, for example, another Medicaid case, Harris v. McRae.

 

In 1976, Cora McRae needed to terminate her pregnancy for medical reasons, but she had very little money. She had health insurance through Medicaid, but under a provision of federal law known as the Hyde Amendment initially passed in 1976, federal Medicaid funds cannot pay for abortions, including medically necessary abortions, though Medicaid covers other medically necessary expenses, including the costs of childbirth. McRae joined with other plaintiffs to challenge this law, arguing that by paying for childbirth expenses, but not for medically necessary abortion expenses, the government was unconstitutionally coercing her reproductive decisions and denying her constitutionally-protected right to end her pregnancy. In 1980, the Supreme Court rejected McRae’s challenge to Medicaid’s failure to fund medically necessary abortions. “Although Congress has opted to subsidize medically necessary services generally, but not certain medically necessary abortions,” the Court wrote, “the fact remains that the Hyde Amendment leaves an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all.”

 

In other words, refusing to provide Medicaid coverage for abortions did not represent unconstitutional coercion of a poor woman’s reproductive choices, according to the Court, because in the end it was her poverty that constrained her choices, rather than any barriers the federal government had placed in her way. That she was poor and might be forced to make certain choices because of her poverty—like going through with a potentially dangerous pregnancy because she could not afford an abortion--wasn’t the government’s fault, the Court held.

 

I can’t help thinking of Cora McRae when I read Sebelius. As Ryan explains, the Court’s holding that conditioning a state’s Medicaid funding on implementation of the Medicaid expansion was unconstitutionally coercive depended on the conclusions that states were unfairly surprised by the expansion and had over the years become very dependent on Medicaid funding.    The Court held that states couldn’t afford to say no to the deal being offered by the federal government and so the federal offer to provide Medicaid assistance only if the state undertook various new actions amounted to the federal government compelling state policy choices in a way that violates the Constitution—a “gun to the head.”

 

Of course, Cora McRae was dependent on Medicaid too. That dependence left her with very few real choices in the face of a new rule (no doubt surprising to her) providing that Medicaid would cover her medical costs if she continued her pregnancy but would withdraw financial support if she did not.  Reading Sebelius and McRae together suggests that state budgeters are more dependent on Medicaid than the poor and sick – while the federal government cannot be held responsible for the lack of options available to an indigent pregnant woman who cannot afford to make a choice that comes without Medicaid funding, it can be held responsible when a state complains that it cannot afford to turn down federal Medicaid funding and face the political consequences. Such a result creates a very strange rule indeed.

 

Of course, as Ryan points out, the third key aspect of the Medicaid expansion that Justice Roberts’ opinion relied on in finding the expansion unconstitutional is the “crossover condition”—that funds for an existing program on which the state relies and has become economically dependent cannot be conditioned on compliance with a new set of requirements under a different program.  Justice Roberts’ conclusion that an expansion of Medicaid to cover all adults below 133 percent of the poverty level cannot be understood as a modification of a “program to care for the neediest among us,” but instead must be understood as a new program different in nature and kind from Medicaid as it existed previously is hardly self-evident.  But putting that aside, even with the “crossover condition,” it is difficult to imagine the Court applying this coercion principle to federal interactions with individuals, rather than states.  Imagine a long-running federal program that provides aid to the needy, which low-income families depend on in order to meet their most basic needs.  Then imagine Congress imposing new requirements on recipients of that aid: from now on, they will have to work in a community service job program and meet that program’s requirements to receive assistance.  Would this Court ever hold that to condition aid on recipients’ participation in this separate program amounts to unfair surprise, exploitation of recipients’ dependence, or coercive involuntary servitude? 

 

“Perhaps the saving grace of the unworkable opinion is that its own vagueness could ultimately confine it to its facts,” Ryan writes.  I hope so, as it is difficult to imagine courts applying the Sebelius rule in a principled manner.