Standards for Constitutional Review of Privacy-Invading Welfare Reforms: Distinguishing the Abortion-Funding Cases and Redeeming the Undue-Burden Test

Authors

Susan F. Appleton

First Page

1

Abstract

As the debate on welfare reform proceeds relentlessly toward what many hope will be a drastically altered system, critics of reform proposals have wisely focused their attention on the competing policy choices faced by Congress and the president (and ultimately perhaps the states). As a result, Congress's avowed determination to limit available funds and to abolish certain entitlements to public assistance has prompted arguments about the merits of programs that might compete for dwindling federal dollars. For example, should Congress stop welfare payments to unmarried teenage mothers? Should it cap the amount of support a family receives, regardless of the birth of additional children? Alternatively, should state governments make such decisions because of their greater familiarity with the particular problems faced by their poor citizens, or should uniform federal rules of eligibility continue to control?

Many of the most disputed calls for change explicitly target the reproductive and familial choices made by welfare recipients, private matters that in other contexts have been held presumptively outside the reach of governmental authority. Such "privacy-invading" reforms unquestionably include plans to influence personal decisions about how many children a family should have, whether unmarried teenagers should have children at all, and whether an individual should marry. In addition, the term could arguably cover plans to influence single parents' decisions about working outside the home even while children are young, plans to influence the decisions of families with teenage mothers about living arrangements, and plans to press for more cooperation in paternity establishment. Although critics have not hesitated to point out what is wrong with the proposed changes in welfare, one argument remains noticeably absent from the debate: the contention that the Constitution prohibits reform measures invading protected individual rights or requiring the poor to compromise liberties guaranteed to others.

Recommended Citation

Susan F. Appleton, Standards for Constitutional Review of Privacy-Invading Welfare Reforms: Distinguishing the Abortion-Funding Cases and Redeeming the Undue-Burden Test, 49 Vanderbilt Law Review 1 (1996)
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol49/iss1/1