Beyond the Limits of Reproductive Choice: The Contributions of the Abortion-Funding Cases to Fundamental-Rights Analysis and to the Welfare-Rights Thesis

39 Pages Posted: 6 Aug 2019

See all articles by Susan Frelich Appleton

Susan Frelich Appleton

Washington University in St. Louis - School of Law

Date Written: July 31, 2019

Abstract

This early analysis of the abortion-funding cases shows how the Supreme Court shifted the focus from the fundamental nature of the right at stake to the character of the state action challenged. By insisting that the state action “impinge” on the right recognized by Roe v. Wade in order to merit more than rational-basis review, the Court not only minimized the impact of funding denials on poor women but also foretold the undue-burden standard that would govern all manner of abortion restrictions in the years to come. This article anticipates that later development and also shows how the abortion-funding cases mark the demise of the welfare-rights thesis that some scholars had discerned in the Court’s wealth-discrimination jurisprudence.

Keywords: abortion, funding, indigency, rights, standard of review

Suggested Citation

Appleton, Susan Frelich, Beyond the Limits of Reproductive Choice: The Contributions of the Abortion-Funding Cases to Fundamental-Rights Analysis and to the Welfare-Rights Thesis (July 31, 2019). Washington University in St. Louis Legal Studies Research Paper No. 19-07-05; 81 Colum. L. Rev. 721 (1981). Available at SSRN: https://ssrn.com/abstract=3430751

Susan Frelich Appleton (Contact Author)

Washington University in St. Louis - School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States

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