Vanderbilt Law Review


John R. Hand

First Page



In 1990, Wyeth-Ayerst Laboratories introduced Norplant, a five- year contraceptive consisting of six capsules that release contraceptive hormones when inserted in a woman's arm. Soon after the introduction of Norplant, a Philadelphia Inquirer editorial column stirred tremendous controversy when the author suggested that Norplant could solve the welfare problem if states would offer welfare mothers incentives to use the device.' Tremendous outrage and cries of racism, fascism and genocide prompted the Inquirer's Editor, Maxwell King, to apologize publicly and retract the editorial.'

Despite the fury, some states have introduced welfare reform bills that would do exactly what the Inquirer editorial so boldly suggested.' In a nutshell, the typical law would offer female welfare recipients a cash incentive of $500 if they allow the state to insert Norplant at its own expense. If passed, such a law would not only generate a wave of criticism but also would present a most perplexing constitutional antimony. Essentially, a law offering cash for Norplant insertion would bring two unresolved and arguably unsolvable constitutional doctrines-the doctrine of unconstitutional conditions and the doctrine of certain "privacy rights" as fundamental constitutional rights-to bear on the same issue.

The unconstitutional conditions doctrine states that the government cannot bribe people with benefits and privileges to forego rights with which the government could not interfere directly. For example, the government could not pay people $100 a week not to go to church or pay them to worship one religion but not another. The counterargument, based on the premise that the government has no duty to give benefits, suggests that the right not to give a benefit includes the lesser right to offer it conditionally. In addition to this inquiry, the next challenge is to define the right with which the government is interfering and to determine whether that right is fundamental.