Standards for Constitutional Review of Privacy-Invading Welfare Reforms: Distinguishing the Abortion-Funding Cases and Redeeming the Undue-Burden Test
49 Vand. L. Rev. 1 (1996)
71 Pages Posted: 6 Aug 2019
Date Written: July 31, 2019
Written during the run-up to the 1996 welfare reforms, this article emphasizes the many provisions that target reproductive and family decisions, expressly seeking to influence intimate lives and personal choices despite Supreme Court precedents according constitutional protection to such matters. The assumption that Congress can regulate such “private” choices by poor persons stems from doctrine like that in the abortion-funding cases, which held that the provision of government subsidies not only belongs to the legislature but also allows the imposition of state value judgments subject only to minimal judicial review. The article goes on to suggest how equality norms and a refined understanding of the Court’s only recently announced undue-burden standard of review for abortion restrictions can offer possible ways to challenge welfare reforms that interfere with reproductive self-determination and family autonomy.
Keywords: welfare, race, gender, abortion, privacy, family autonomy, undue burden
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