¹ The more things change, the more they are the same.

² See, e.g., H.H. HIATT, AMERICA's HEALTH IN THE BALANCE: CHOICE OR CHANCE? (1987); R. MORRIS, RETHINKING SOCIAL WELFARE: WHY CARE FOR THE STRANGER (1986); R. FEIN, MEDICAL CARE, MEDICAL COSTS: THE SEARCH FOR A HEALTH CARE POLICY (1986); N. DANIELS, JUST HEALTH CARE (1985); Mariner, Prospective Payment for Hospital Services: Social Responsibility and the Limits of Legal Standards, 17 CUMB. L. REV. 379 (1987)Google Scholar; Feder, Hadley, & Mullner, Falling Through the Cracks: Poverty, Insurance Coverage, and Hospital Care for the Poor, 1980-1982, 62 MILBANK MEMORIAL FUND Q. 544 (1984)CrossRefGoogle Scholar; PRESIDENT's COMMISSION FOR THE STUDY OF ETHICAL PROBLEMS IN MEDICINE AND BIOMEDICAL AND BEHAVIORAL RESEARCH, SECURING ACCESS TO HEALTH CARE: THE ETHICAL IMPLICATIONS OF DIFFERENCES IN THE AVAILABILITY OF HEALTH SERVICES (1983); Mariner, Market Theory and Moral Theory in Health Policy, 4 THEOR. MED. 143 (1983)CrossRefGoogle Scholar; Caper, Competition and Health Care: A New Trojan Horse, 306 NEW ENG. J. MED. 928 (1982)CrossRefGoogle Scholar; Cohodes, Where You Stand Depends on Where You Sit: Musings on the Regulation! Competition Dialogue, 7 J. HEALTH POL. POL'Y & L. 54 (1982)CrossRefGoogle Scholar; Daniels, Equity of Access to Health Care: Some Conceptual and Ethical Issues, 60 MILBANK MEMORIAL FUND Q. 51 (1982)CrossRefGoogle Scholar; Daniels, Health Care Needs and Distributive Justice, 10 PHIL. & PUB. AFF. 146 (1981)Google ScholarPubMed; Gutmann, For and Against Equal Access to Health Care, 59 MILBANK MEMORIAL FUND Q. 542 (1981)CrossRefGoogle Scholar; Rosenblatt, Health Care Markets and Democratic Values, 34 VAND. L. REV. 1067 (1981)Google Scholar; Wyszewianski, & Donabedian, Equity in the Distribution of Quality of Care, 19 MED. CARE 28 (Supp. Dec. 1981)CrossRefGoogle Scholar; Ginzberg, The Competitive Solution: Competition and Cost Containment, 303 NEW ENG. J. MED. 1112 (1980)CrossRefGoogle Scholar.

³ 42 U.S.C §§ 1395a-1395xx (1982).

⁴ 42 U.S.C. §§ 1396a-1396p (1982).

⁵ See, e.g., Maternal and Child Health Services Block Grant, 42 U.S.C. §§ 701-709 (1982); Alcoholism Prevention, Treatment and Rehabilitation Act, 42 U.S.C. §§ 4551-4553 (1982).

⁶ See, e.g., Feldman, The Impact of the Maternal and Child Health Services Block Grant on Programs for the Poor: 1981-1983, Harvard School of Public Health (1985); Feldman, & Gerteis, Private Insurance for Medicaid Recipients: The Texas Experience, 12 J. HEALTH POL. POL'Y & L. 271 (1987)CrossRefGoogle Scholar; Charles, & Higdon, Medicare; The Prospective Payment System, 17 CUMB. L. REV. 417 (1987).Google Scholar

⁷ The fourteenth amendment states, in relevant part: “No State shall … deny to any person within its jurisdiction the equal protection of the laws.” U.S. CONST, amend. XIV, cl. 1.

⁸ The Justices presiding over the Supreme Court since the appointment of Warren Burger as Chief Justice, however, do not embrace a unified philosophy of constitutional law or even of political theory, federalism, or judicial review. This is evidenced by the proliferation of concurring and dissenting opinions expressing divergent views on powers of federal and state governments as well as the judiciary.

⁹ Without some substantive content, however, the notion of equality is empty; the principle that like be treated alike is meaningless until we know what characteristics are relevant to a determination of likeness. See, e.g., L. TRIBE, AMERICAN CONSTITUTIONAL LAW 991 (1978); Karst, Why Equality Matters, 17 GA. L. REV. 245 (1983)Google Scholar; Westen, The Empty Idea of Equality, 95 HARV. L. REV. 537, 547 (1982)CrossRefGoogle Scholar; Baker, Outcome Equality or Equality of Respect: The Substantive Content of Equal Protection, 131 U. PA. L. REV. 933 (1983).CrossRefGoogle Scholar Others have responded that equality is a normative concept, e.g., Burton, Comment on “Empty Ideas”: Logical Positivist Analyses of Equality and Ruks, 91 YALE L.J. 1136 (1982)CrossRefGoogle Scholar; or that it serves to explain an important relationship, e.g., Chemerinsky, In Defense of Equality: A Reply to Professor Westen, 81 MICH. L. REV. 575 (1983)CrossRefGoogle Scholar; Greenawalt, How Empty is the Idea of Equality?, 83 COLUM. L. REV. 1167 (1983).CrossRefGoogle Scholar

¹⁰ The due process clauses of the fifth and fourteenth amendments (“No person shall … be deprived of life, liberty, or property, without due process of law”) have been invoked to limit the powers of federal and state governments on the theory that the power yielded by the people to government has discernible bounds. The government, therefore, is without the power to intrude upon certain spheres of personal liberty, such as freedom of expression, association, and religion, the right of participation in the political process, and rights of personal privacy. L. TRIBE, AMERICAN CONSTITUTIONAL LAW 564-75 (1978).

¹¹ See, e.g., United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166 (1980).

¹² See, e.g., City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985); Plyler v. Doe, 457 U.S. 202 (1982); Memorial Hosp. v. Maricopa County, 415 U.S. 250 (1974).

¹³ City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985) (the equal protection guarantee “is essentially a direction that all persons similarly situated should be treated alike.”); F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920). Efforts to identify or explain the purpose of the clause or the concept of equal protection have been too few and none have settled the issue. See notes 9 supra and 111 infra. The court has interpreted the due process clause of the fifth amendment to render the guarantee of equal protection applicable to the federal government. Boiling v. Sharpe, 347 U.S. 497 (1954).

¹⁴ The concept of treatment as an equal is constitutionally appealing for it connotes that everyone is entitled to equal respect as a person without prejudice. Therefore, it can apply to all things without guaranteeing equal access to all things. See generally A. GUTMANN, LIBERAL EQUALITY (1985); R. DWORKIN, TAKING RIGHTS SERIOUSLY 227 (1977); J. RAWLS, A THEORY OF JUSTICE 504-12 (1971).

¹⁵ For example, Medicare classifies persons eligible to receive its benefits primarily, although not exclusively, on the basis of age. Social Security Act, tit. XVIII, 42 U.S.C. §§ 1395a-1395xx (1982). Medicaid determines eligibility largely on grounds of income (using a means test) and medical condition or need. Social Security Act, tit. XIV, 42 U.S.C. §§ 1396a-1396p (1982).

¹⁶ Tigner v. Texas, 310 U.S. 141, 147 (1940).

¹⁷ “It is unnecessary to say that the ’equal protection of the laws’ required by the 14th amendment does not prevent the states from resorting to classification for the purposes of legislation. Numerous and familiar decisions of this court establish that they have a wide range of discretion in that regard. But the classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.” F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920).

¹⁸ Even if the purpose is permissible, courts must review the means for achieving the goal, for if the criteria for defining the class of persons affected are arbitrary, persons are not treated equally with respect to relevant characteristics. Tussman, & TenBroek, The Equal Protection of the Laws, 37 CALIF. L. REV. 341, 346-47 (1949).CrossRefGoogle Scholar As it is well-nigh impossible to draw perfect boundaries, especially when defining eligibility for health care benefits, the Court has been sympathetic to good faith efforts to create reasonable boundaries and has not required that lines be drawn with “mathematical nicety.” Dandridge v. Williams, 397 U.S. 471, 485 (1970); see also Schweiker v. Hogan, 457 U.S. 589 (1982).

¹⁹ There is disquieting evidence of this kind of reasoning in some of the Court's decisions. In United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166 (1980), for example, the analysis began and ended with the facial constitutionality of the statute, effectively precluding any independent consideration of the legitimacy of the statute's purpose.

²⁰ 304 U.S. 144 (1938). Reversing its earlier trend, the Court found that judicial review “must be restricted to the issue whether any state of facts either known or which could reasonably be assumed, affords support for” the legislation. Id. at 154.

²¹ See, e.g., Hodel v. Indiana, 452 U.S. 314 (1981); United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166 (1980); City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976). But see Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869 (1985); Zobel v. Williams, 457 U.S. 55 (1982); Memorial Hosp. v. Maricopa County, 415 U.S. 250, 262-69 (1974); United States Dep't of Agric. v. Moreno, 413 U.S. 528, 534-36 (1973).

²² The Court has generally referred to its analysis as a “traditional two-tiered” approach, referring to the two major tests. As the court occasionally uses, either implicitly or explicitly, a third “rationality review” test, the prevailing model includes three standards. In all cases, of course, the threshold requirement is the existence of state or federal action. See Glennon & Nowack, A Functional Analysis of the Fourteenth Amendment “State Action” Requirement, 1976 Sup. CT. REV. 221.

²³ Dandridge v. Williams, 397 U.S. 471 (1970); see also Schweiker v. Wilson, 450 U.S. 221 (1981); United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166 (1980); Vance v. Bradley, 440 U.S. 93 (1979); Matthews v. De Castro, 429 U.S. 181 (1976); San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1 (1973); Jefferson v. Hackney, 406 U.S. 535 (1972); Richardson v. Belcher, 404 U.S. 78 (1971).

²⁴ Indeed, almost any conceivable set of facts or purposes will suffice. See, e.g., Schweiker v. Hogan, 457 U.S. 569 (1982); United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166 (1980); Harris v. McRae, 448 U.S. 297 (1980); Vance v. Bradley, 440 U.S. 93 (1979). Sometimes there is no conceivable rationale whatsoever. See, e.g., Clements v. Fashing, 457 U.S. 957, 969 (plurality opinion), 976 (Stevens, J., concurring) (1982).

²⁵ The putative basis for the strict scrutiny standard is the now famous “footnote 4” of Justice Harlan Fiske Stone's opinion in United States v. Carolene Prods. Co., 304 U.S. 144, 152-53 (1938); see also Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920, 933 (1973)CrossRefGoogle Scholar; Ball, Judicial Protection of Powerless Minorities, 59 IOWA L. REV. 1059, 1060-87 (1974).Google Scholar

²⁶ Although the Court clearly adopted the two-tiered model in San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1 (1973), it has not succeeded in articulating a coherent view of the requirements of equal protection in general. See Karst, The Supreme Court, 1976 Term— Forward: Equal Citizenship Under the Fourteenth Amendment, 91 HARV. L. REV. 1, 1-3 (1977).CrossRefGoogle Scholar The literature on what was called “the new equal protection” is vast. Perhaps the seminal commentary is Gunther, The Supreme Court, 1971 Term—Forward: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 HARV. L. REV. 1 (1972).CrossRefGoogle Scholar

²⁷ E.g., a group defined by race, Nixon v. Hemdon, 273 U.S. 536 (1927); or national origin, Yick Wo v. Hopkins, 118 U.S. 356 (1886).

²⁸ E.g., voting rights, Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966); Reynolds v. Sims, 377 U.S. 533 (1964); access to criminal process, Douglas v. California, 372 U.S. 353 (1963); Gideon v. Wainwright, 372 U.S. 335 (1963); Griffin v. Illinois 351 U.S. 12 (1956); the right to travel, Shapiro v. Thompson, 394 U.S. 618 (1969); the right to procreate, Skinner v. Oklahoma, 316 U.S. 535 (1942); freedom of association, NAACP v. Button, 371 U.S. 415 (1963); termination of pregnancy, Roe v. Wade, 410 U.S. 113 (1973); the right to marry, Zablocki v. Redhail, 434 U.S. 374 (1978).

²⁹ Several Justices have argued that where fundamental rights are at issue, strict scrutiny is not necessary to invalidate the law. See, e.g., Plyler v. Doe, 457 U.S. 202, 232 (1982) (Marshall, J., concurring); San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 61 (1973) (Stewart, J., concurring); Shapiro v. Thompson, 394 U.S. 618, 659 (1969) (Harlan, J., dissenting).

³⁰ “Members of the Court continue to hold divergent views on the clarity with which a legislative purpose must appear, … and about the degree of deference afforded the legislature in suiting means to ends… .” Schweiker v. Wilson, 450 U.S. 221, 243 n.4 (citations omitted) (1981) (Powell, J., dissenting); see also City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 451 (1985) (Stevens, J., concurring); United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 177 n.10 (1981) (Rehnquist, J., majority opinion).

³¹ This heightened form of scrutiny, variously called intermediate or middle scrutiny, has been applied to various classifications. E.g., alienage, Plyler v. Doe, 457 U.S. 202 (1982); gender, Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142 (1980); Califano v. Wescott, 443 U.S. 76 (1979); Craig v. Boren, 429 U.S. 190 (1976); Reed v. Reed, 404 U.S. 71 (1971); and illegitimacy, Mills v. Habluetzel, 456 U.S. 91 (1982); Lalli v. Lalli, 439 U.S. 259 (1978); Gomez v. Perez, 409 U.S. 535 (1973); New Jersey Welfare Rights Org. v. Cahill, 406 U.S. 164 (1972); Levy v. Louisiana, 391 U.S. 68 (1968).

³² Mills v. Habluetzel, 456 U.S. 91, 99 (1982) (emphasis added); Craig v. Boren, 429 U.S. 190, 197 (1976) (“Classifications by gender must serve important governmental objectives and must be substantively related to achievement of those objectives.”).

³³ Mills v. Habluetzel, 456 U.S. 91, 99-100 (1982); Craig v. Boren, 429 U.S. 190, 197 (1976).

³⁴ Minimum scrutiny usually results in the classification being upheld in deference to the perogatives of the legislature, but strict scrutiny ordinarily results in its invalidation on the ground that it is unsupported by a sufficiently compelling governmental interest. Intermediate scrutiny yields mixed results, perhaps because courts have not uniformly accepted it as a standard of review and have applied it with greater flexibility than the other two tests.

³⁵ See, e.g., City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 451 (1985) (Stevens, J., concurring); Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869 (1985) (O'Connor, J., dissenting).

³⁶ Justice Marshall has repeatedly called for the acceptance of several levels of scrutiny depending upon “the constitutional and societal importance of the interest adversely affected and the recognized insidiousness of the basis upon which the classification is drawn.” San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 99 (1973); see also Lying v. Castillo, 477 U.S. 635 (1986) (Marshall, J., concurring in part); Plyler v. Doe, 457 U.S. 202 (1982); Harris v. McRae, 448 U.S. 297, 341-42 (1980); Vance v. Bradley, 440 U.S. 93, 113-15 (1979); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 318-21 (1976). Dandridge v. Williams, 397 U.S. 471, 519-21 (1970).

³⁷ The term “suspect class” refers to the notion that certain traits are irrelevant to membership in a democratic society; classifications based on such traits are necessarily “suspect.” The Court has suggested several indicators of a suspect criterion, but has not adopted a single definition. In his classic footnote, Justice Stone referred to “discrete and insular minorities,” denoting a group easily identified by physical characteristics, especially religious and racial minorities against whom prejudice may exist. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938). The similar concept of an “accident of birth” or a trait over which a person has no control has been used to describe a suspect criterion. See Frontiero v. Richardson, 411 U.S. 677 (1973); Weber v. Aetna Casualty & Sur., 406 U.S. 164 (1972). Professor Ackerman gives the phrase “discrete and insular minorities” a new gloss, arguing for judicial attention to prejudice affecting groups that are diffuse or anonymous, reminiscent of Justice Marshall's dissenting definition of persons “relatively powerless to protect their interests in the political process” in San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 105 (1973). See Ackerman, Beyond Carolene Products, 98 HARV. L. REV. 713 (1985).CrossRefGoogle Scholar

³⁸ 397 U.S. 471 (1970).

³⁹ See,e.g., San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1 (1973); Schweiker v. Hogan, 457 U.S. 569 (1982); Schweiker v. Wilson, 450 U.S. 221 (1981); Harris v. McRae, 448 U.S. 297 (1980). In Rodriguez, the Court explicitly refused to hold wealth classifications suspect. It upheld the Texas system of financing primary and secondary education largely out of local property taxes which effectively created two classes of school children, rich and poor. The Court implied that where the classification includes both rich and poor—even in highly unequal proportions—as any geographic and most other groups will, no suspect classification could be found. It seems odd, if not arbitrary, to require perfection in discrimination for purposes of invalidating a statute when a similar perfection is not considered necessary to uphold one.

⁴⁰ 432 U.S. 464 (1977).

⁴¹ Id. at 470-71.

⁴² 448 U.S. 297 (1980).

⁴³ Act of Nov. 20, 1979, Pub. L. No. 96-123, § 109, 93 Stat. 923, 926. The so-called Hyde Amendment is actually a series of restrictions attached to federal funding resolutions.

Section 109 of Public Law 96-123 provides: “None of the funds provided by this joint resolution shall be used to perform abortions except where the life of the mother would be endangered if the fetus were carried to term; or except for such medical procedures necessary for the victims of rape or incest… .”

⁴⁴ Plaintiffs also claimed, unsuccessfully, denial of a right to therapeutic abortion under the due process clause, and a violation of the establishment of religion clause of the first amendment.

⁴⁵ Harris, 448 U.S. at 308, 326-27.

⁴⁶ 42 U.S.C. § 1396a(10)(A), (B) (Supp. 1987).

⁴⁷ In a forceful dissent, Justice Marshall criticized the “strict scrutiny/rational basis dichotomy” as permitting undeserved deference to “legislation that imposes a crushing burden on indigent women.” Harris, 448 U.S. at 342. Quoting from Justice Blackmun's dissent in Beal v. Doe, 432 U.S. 438, 463 (1977), he said: “ ‘There is another world “out there,” the existence of which the Court… either chooses to ignore or fails to recognize’…. In my view, it is only by blinding itself to that other world that the Court can reach the result it announces today.” Harris, 448 U.S. at 346-47.

⁴⁸ Harris, 448 U.S. at 324. The majority also found that no fundamental right was present to trigger strict scrutiny. See text accompanying notes 55-59 infra.

⁴⁹ Access to the courts is rationed to some degree by fees. See, e.g., Boddie v. Connecticut, 401 U.S. 371 (1971) (court and service of process fees for divorce); Griffin v. Illinois, 351 U.S. 12 (1956) (transcript fee for criminal appeal). In Axe v. Oklahoma, 470 U.S. 68, 77 (1985), “meaningful access to justice” required the state to provide psychiatric assistance to an indigent defendant. Access to health care is similarly rationed by the terms of governmentfinanced health insurance.

⁵⁰ Michelman, The Supreme Court, 1968 Term—Forward: On Protecting the Poor Through the Fourteenth Amendment, 83 HARV. L. REV. 7, 12 (1969).Google Scholar For Michelman's more recent concerns, see Michelman, The Supreme Court, 1985 Term—Forward: Traces of Self-Government, 100 HARV. L. REV. 4 (1986)CrossRefGoogle Scholar.

⁵¹ Indeed, a different result obtains where the case involves a political, rather than economic good. The obvious example is a poll tax, which violates the equal protection clause because voting is too fundamental a right to be distributed on the basis of price. See Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966).

⁵² Michelman, supra note 50; see also Michelman, In Pursuit of Constitutional Welfare Rights: One View of Rawl's Theory of justice, 121 U. PA. L. REV. 964 (1973)CrossRefGoogle Scholar; Michelman, Welfare Rights in a Constitutional Democracy, 1979 WASH. U.L.Q. 659Google Scholar. For critiques of Michelman's analyses, see Appleton, Professor Mkhelman's Questfor a Constitutional Welfare Right, 1979 WASH. U.L.Q. 715Google Scholar; Bork, The Impossibility of Finding Welfare Rights in the Constitution 1979 WASH. U.L.Q. 695Google Scholar.

⁵³ See Michelman, Welfare Rights in a Constitutional Democracy, supra note 52.

⁵⁴ See, e.g., R. BRANDT, A THEORY OF THE GOOD AND THE RIGHT (1979); N. DANIELS, JUST HEALTH CARE (1985); CM. HAAR & D.W. FESSLER, FAIRNESS AND JUSTICE (1986); M. PERRY, THE CONSTITUTION, THE COURTS AND HUMAN RIGHTS: AN INQUIRY INTO THE LEGITIMACY OF CONSTITUTIONAL POLICYMAKING BY THE JUDICIARY (1982); J. RAWLS, A THEORY OF JUSTICE (1971); Green, Health Care and Justice in Contract Theory Perspective, in ETHICS AND HEALTH POLICY (1976); Outka, Social Justice and Equal Access to Health Care, 2 J . RELIC. ETHICS 11 (1974)Google Scholar; Ozar, What Should Count as Basic Health Care, 4 THEOR. MED. 129 (1983)CrossRefGoogle Scholar; Ozar, Justice and a Universal Bask Right to Health Care, 15 F Soc Sci. MED. 135 (1981)Google Scholar. Rather than struggle with difficult theories that depend on empirical research to determine the types of deprivations that ought to be forbidden, the Court has disavowed wealth as a valid suspect criterion.

⁵⁵ See, e.g., Griffin v. Illinois, 351 U.S. 12, 17 (1956) (“In criminal trials a State can no more discriminate on account of poverty than on account of religion, race, or color.”); see also Gideon v. Wainwright, 372 U.S. 335 (1963) (right to counsel in criminal prosecution); Douglas v. California, 372 U.S. 353 (1963) (same for appeals as of right), Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966) (striking down a poll tax of $1.50); Bullock v. Carter, 405 U.S. 134 (1972) (striking down a statutory requirement that candidates pay filing fees for primary elections).

⁵⁶ In Goldberg v. Kelly, 397 U.S. 254, 265 (1970), the Warren Court described welfare benefits as the means by which the poor could take advantage of opportunities available to the wealthy “to participate meaningfully in the life of the community… .”

⁵⁷ For a discussion of different approaches to securing social and economic rights, as compared with civil and political rights, in international declarations and covenants, see Weston, Human Rights, 6 HUMAN RIGHTS Q. 257 (1984).CrossRefGoogle Scholar

⁵⁸ See, e.g., Goldberg v. Kelly, 397 U.S. 254 (1970); see also Shapiro v. Thompson, 394 U.S. 618 (1969).

⁵⁹ Dandridge v. Williams, 397 U.S. 471 (1970); Richardson v. Belcher, 404 U.S. 78 (1971) (upholding a reduction in social security benefits for workers compensation awards but not for private insurance proceeds); Wyman v. James, 400 U.S. 309 (1971) (allowing the termination of AFDC benefits to recipients who refused to allow caseworkers to search their homes); Jefferson v. Hackney, 406 U.S. 535 (1972) (upholding a welfare program providing a lower standard of need for AFDC recipients than for the aged or disabled); Mathews v. Eldridge, 424 U.S. 319 (1976) (permitting the termination of social security disability benefits without a pretermination hearing); Idaho Dep't of Unemployment v. Smith, 434 U.S. 100 (1977) (per curiam) (permitting denial of unemployment benefits to persons who attended school during the day under statute which allowed benefits to those who attended night school).

⁶⁰ 411 U.S. 1 (1973).

⁶¹ 411 U.S. at 33-34 (citation omitted). The right to travel is not mentioned in the text of the Constitution.

⁶² For example, Geduldig v. Aiello, 417 U.S. 484 (1974), upheld California's insurance system for disabled privately employed workers, which provided benefits for sex-specific procedures like prostatectomy and circumcision, but not normal pregnancies. The majority found that the statute did not discriminate on the basis of sex, saying:

See also General Elec. Co. v. Gilbert, 429 U.S. 125 (1976).

⁶³ An exception is Estelle v. Gamble, 429 U.S. 97 (1976), where the Court recognized an eighth amendment “right” to adequate medical care for prisoners’ serious medical needs. See generally Mariner, Medical Care for Prisoners: The Evolution of a Civil Right, 9 MEDICOLEGAL NEWS 4 (1981)CrossRefGoogle Scholar.

⁶⁴ 448 U.S. 297,316-17 (1980). For an argument that the Court did not redefine the right at stake, but added a new requirement that state action constitute an “impingement” upon the right in order to receive strict scrutiny, see Appleton, Beyond the Limits of Reproductive Choice: The Contributions of the Abortion Funding Cases to Fundamental-Rights Analysis and the Welfare- Thesis, 81 COLUM. L. REV. 721 (1981).CrossRefGoogle Scholar

⁶⁵ 410 U.S. 113, 153 (1973) (holding that the right to privacy protected by the “concept of personal liberty” found in either the due process clause of the fourteenth amendment or the Bill of Rights included “a woman's decision whether or not to terminate her pregnancy.”).

⁶⁶ Harris v. McRae, 448 U.S. at 314 (citing Maher v. Roe, 432 U.S. 464, 473-74 (1977)). The Court confirmed its adherence to Roe v. Wade in City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983), and Thornburgh v. American College of Obstetricians, 106 S. Ct. 2169 (1986). But in Akron, Justice O'Connor, in a dissent joined by Justices White and Rehnquist, argued for limiting strict scrutiny to cases in which state regulation substantially infringes or heavily burdens a fundamental right. Rather than seeking a compelling interest to justify the nature of the regulation of a fundamental right, Justice O'Connor would permit interference with such a right upon satisfaction of the rational basis test unless the regulation was unduly burdensome. 462 U.S. at 453 (O'Connor, J., dissenting). This formulation focuses on the regulation and its degree of interference with the right, rather than the fundamental nature of the right itself in determining whether strict scrutiny should apply. As the dissent argues that the regulations overturned by the majority were not unduly burdensome, it is difficult to imagine any cases in which this formulation could operate to invalidate legislation, regardless of the nature of the right at stake.

⁶⁷ Harris, 448 U.S. at 316.

⁶⁸ The treatment of social assistance benefits as entitled to special constitutional protection came to an end in United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166 (1980), where the Court upheld provisions of the Railroad Retirement Act of 1974 which excluded employees with less than 10 years of railroad employment from certain “windfall” benefits payable in the past. Justice Rehnquist's opinion for the majority concluded that there was no deprivation of property in violation of the due process clause—hence no fundamental interest—“since railroad benefits, like social security benefits, are not contractual and may be altered or even eliminated at any time.” Id. at 174. Justice Brennan, dissenting, noted that the Court's use of the prevailing model “virtually immunizes social and economic legislative classifications from judicial review.” Id. at 183.

⁶⁹ Gideon v. Wainwright, 372 U.S. 335 (1963).

⁷⁰ See United States Dep't of Agric. v. Moreno, 413 U.S. 528 (1973) (invalidating Federal Food Stamp Act provision denying food stamps to households not consisting entirely of related persons); United States Dep't of Agric. v. Murry, 413 U.S. 508 (1973) (striking down Food Stamp Act's exclusion from eligibility of any person who had been claimed as a dependent by another food stamp recipient); New Jersey Welfare Rights Org. v. Cahill, 411 U.S. 619 (1973) (per curiam) (invalidating state's denial of welfare benefits to families with illegitimate children).

⁷¹ 415 U.S. 250 (1974).

⁷² Id. at 259. The court held that the state violates the equal protection clause because it created an invidious classification that impinged upon the right of interstate travel. The court saw medical care as analogous to welfare benefits, thereby fitting the case to the facts in Shapiro v. Thompson, 394 U.S. 618 (1969). Justice Rehnquist, dissenting, disputed this analogy. He viewed the claim as one to subsidized medical care: “Appellants did not, and could not, claim that there is a constitutional right to nonemergency medical care at state or county expense or a constitutional right to reimbursement for care extended by a private hospital.” Memorial Hosp., 415 U.S. at 278.

⁷³ Both the concurring and dissenting Justices thought that Justice Brennan's majority opinion in United States Dep't of Agric. v. Moreno, 413 U.S. 528 (1973), employed some middle level of review. Id. at 542-43 (Douglas, J., concurring); id. at 546-47 (Rehnquist, J., dissenting).

⁷⁴ See Tribe, Unravelling National League of Cities: The New Federalism and Affirmative Rights to Essential Government Services, 90 HARV. L. REV. 1065, 1080 (1977).Google Scholar

⁷⁵ 457 U.S. 202 (1982).

⁷⁶ Children of illegal aliens were treated as a quasi-suspect class. Id. at 219 n.19. For a criticism of the majority's approach, see Hutchinson, More Substantive Equal Protection? A Notice on Plyler v. Doe, 1982 Sup. CT. REV. 167.

⁷⁷ Plyler, 457 U.S. at 221 (citation omitted).

⁷⁸ Id. (quoting Wiscosin v. Yoder, 406 U.S. 205, 221 (1972)).

⁷⁹ Plyler, 457 U.S. at 221. Chief Justice Burger, dissenting, complained that the majority opinion provided no meaningful distinction between education and other benefits and asked, “Is the Court suggesting that education is more ‘fundamental’ than food, shelter, or medical care?” Id. at 248. More recently, the Court explicitly refused to recognize education as a fundamental right. Papasan v. Allain, 106 S. Ct. 2943-45 (1986).

⁸⁰ Chief Justice Burger, in his dissent joined by Justices White, Rehnquist, and O'Connor, saw no constitutionally sufficient reason to treat the case as involving anything more than rational social welfare legislation. Although Chief Justice Burger thought it “senseless” to deprive any children of an education, he insisted that the question was one of legislative policy, which the judiciary should abstain from altering. Plyler, 457 U.S. at 242-54.

⁸¹ Id. at 224.

⁸² Id. at 217-18.

⁸³ Id. at 229.

⁸⁴ See, e.g., Williams v. Vermont, 472 U.S. 14 (1985); Hooper v. Bernalillo County Assessor, 472 U.S. 612 (1985); Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869 (1985); City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985).

⁸⁵ 450 U.S. 221 (1981).

⁸⁶ The grants were paid under the Supplemental Security Income program of the Social Security Act. 42 U.S.C. §§ 1381, 1382(e)(1)(A) (1982).

⁸⁷ Medicaid did not fund public mental institutions treating persons age 21 through 64. 42 U.S.C. §§ 1905(a)(4)(A), (14), (15), & (17)(B) (1982). The Court explicitly rejected the claimant's argument that the presence of a suspect class warranted heightened scrutiny. The Court avoided the issue of whether mental illness constitutes a suspect criterion by concluding that the statute did not classify “directly on the basis of mental health.” 450 U.S. at 231.

⁸⁸ 450 U.S. at 238-39.

⁸⁹ “[T]he pertinent inquiry is whether the classification … advances the legitimate legislative goals in a rational fashion … . ‘This inquiry employs a relatively relaxed standard reflecting the Court's awareness that the drawing of lines that create distinctions is peculiarly a legislative task and an avoidable one… .’ As long as the classificatory scheme chosen by Congress rationally advances a reasonable and identifiable governmental objective, we must disregard the existence of other methods of allocation that we, as individuals, perhaps would have preferred.” 450 U.S. at 234-35 (quoting Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 314 (1976)) (citations omitted). “This Court has granted a ‘strong presumption of constitutionality’ to legislation conferring monetary benefits … because it believes that Congress should have discretion on deciding how to expend necessarily limited resources.” Id. at 238 (citations omitted).

⁹⁰ Wilson, 450 U.S. at 231.

⁹¹ The House Report on the initial SSI Bill noted: “For these people most subsistence needs are met by the institution and full benefits are not needed. Some payment to these people, though, would be needed to enable them to purchase small comfort items not supplied by the institution.” H.R. REP. NO. 231, 92nd Cong., 1st Sess. at 150 (1971), quoted in Wilson, 450 U.S. at 235. The Secretary justified the program as “rationally related to the legitimate legislative desire to avoid spending federal resources on behalf of individuals whose care and treatment are being fully provided for by state and local government units.” Id., quoted in Wilson, 450 U.S. at 237.

⁹² Similarly, in Schweiker v. Hogan, 457 U.S. 569 (1982), the Court unanimously upheld a Massachusetts Medicaid scheme that provided the categorically needy slightly more assistance than other beneficiaries. Although the Court noted that, “[p]owerful equities unquestionably support the appellees’ claim of unfair treatment,” id. at 589, it did not find these inequities to be in violation of equal protection. The Court considered it rational—indeed commendable— to prefer the categorically needy over beneficiaries with more income. The opinion suggests that the Court believed that the deprivation of income—about $100 a month in one case—was not of sufficient magnitude to warrant constitutional redress. Id. at 583 n.22.

⁹³ 473 U.S. 432 (1985).

⁹⁴ Id. at 436.

⁹⁵ Id. at 442.

⁹⁶ Professor Gunther uses the term in distinguishing his “newer equal protection” from intermediate scrutiny:

G. GUNTHER, CONSTITUTIONAL LAW 605 n.5 (11th ed. 1985).

⁹⁷ City of Cleburne, 473 U.S. at 435.

⁹⁸ Id. at 445-46. The Court rejected the City's arguments that students at a school across the street from the home might harass the residents, that the home was located on a flood plain, that the number of residents would create unacceptable local population density and congestion, and that some neighbors might be fearful of the residents. Id. at 449. The Court noted that zoning regulations permitted nursing homes, hospitals, boarding and fraternity houses which could pose similar concerns. More important, it found the City's reasons for denying a permit “impermissible bases for treating a home for the mentally retarded differently from apartment houses, multiple dwellings, and the like.” Id. at 448.

⁹⁹ Id. at 443.

¹⁰⁰ Id. at 450.

¹⁰¹ Id. at 451.

¹⁰² Id. at 452.

¹⁰³ Id. at 460. Judge Robert Bork, in the 1987 Senate hearings on his nomination to the Supreme Court, commented favorably on Stevens’ approach, noting his own perference for a single standard of reasonableness or rationality for all equal protection claims. His views on this subject may have contributed to the rejection of his nomination.

¹⁰⁴ Id. at 459 n.4.

¹⁰⁵ Id. at 460 (quoting San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 99 (1973)) (Marshall, J., dissenting).

¹⁰⁶ City of Cleburne, 473 U.S. at 472.

¹⁰⁷ UNITED STATES DEP't OF HEALTH AND HUMAN SERVICES, THE HEALTH CONSEQUENCES OF SMOKING: CANCER: A REPORT OF THE SURGEON GENERAL (1982).

¹⁰⁸ In Harris v. McRae, the Court took the position that indigency was a status acquired without government pressure, one that government was not compelled to remedy. The Court stated, “The Hyde Amendment, like the Connecticut welfare regulation at issue in Maher, places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy, but rather, by means of unequal subsidization of abortion and other medical services, encourages alternative activity deemed in the public interest.” 448 U.S. at 315.

¹⁰⁹ 457 U.S. 569 (1982).

¹¹⁰ United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 175 (1980).

¹¹¹ In response to Westen's thesis that the formal principle of equality itself provides no clue as to how people should be treated with respect to particular things, Westen, supra note 9, Greenwalt argues that substantive norms of equality specify which characteristics count for what purpose, such as the norm of the irrelevance of race. Greenwalt also argues that we reason from the initial premise that treatment should be equal and require serious justifications for departures from equal treatment. Greenwalt, How Empty is the Idea of Equality?, 83 COLUM. L. REV. 1167 (1983).CrossRefGoogle Scholar But see Westen, To Lure the Tarantula from Its Hole: A Response, 83 COLUM. L. REV. 1186 (1983).CrossRefGoogle Scholar Simons argues that equal protection analysis deals with implicit comparative rights, which claim entitlement because others have the “good” at issue, not becaues all people should have it. Simons, Equality as a Comparative Right, 65 B.U.L. REV. 387 (1985).Google Scholar Such rights are implicit where the claimant meets the criteria for entitlement applied to those having the good.

¹¹² “We trespass on the assigned function of the political branches under our structure of limited and separated powers when we assume a policy-making role as the Court does today.” Plyler v. Doe, 457 U.S. 202, 242 (1982) (Burger, C.J., joined by White, J., Rehnquist, J., and O'Connor, J., dissenting); see also Vance v. Bradley, 440 U.S. 93, 97 (1979). See generally Bennet, “Mere” Rationality in Constitutional Law: Judicial Review and Democratic Theory, 67 CALIF. L. REV. 1049, 1051 (1979).Google Scholar

¹¹³ “Moreover, when this Court rushes in to remedy what it perceives to be the failings of the political process, it deprives those processes of an opportunity to function.” Plyler v. Doe, 457 U.S. at 253 (Burger, C.J., dissenting); see also Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724 (1985); Southland Corp. v. Keating, 465 U.S. 1 (1984)(O'Connor, J., and Rehnquist, J., dissenting). For an analysis of this and other perspectives on the proper role of the judiciary, see R. DWORKIN, LAW's EMPIRE (1986).

¹¹⁴ See also United States Dep't of Agric. v. Moreno, 413 U.S. 528, 534 (1973) (the Court carefully evaluated the purpose of the Federal Food Stamp Act and found the eligibility criteria “clearly irrelevant to the stated purpose”); New Jersey Welfare Rights Org. v. Cahill, 411 U.S. 619 (1973); City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985) (the Court rejected the state's claim that a home for the mentally retarded would pose a greater threat to quiet neighborhoods than multifamily housing or nursing homes).

¹¹⁵ Several Justices have expressed dissatisfaction with the prevailing model. Clements v. Fashing, 457 U.S. 957, 973-75 (1982) (opinion of Stevens, J.); Vlandis v. Kline, 412 U.S. 441, 456-59 (1973) (White, J., concurring). See supra notes 35 & 36 and accompanying text. For a discussion of the application of the newer rationality review to tax-related claims, see Comment, Still Newer Equal Protection: Impermissible Purpose Review in the 1984 Term, 53 U. CHI. L. REV. 1454 (1986).CrossRefGoogle Scholar

¹¹⁶ See supra note 96. For a similar criticism of intermediate scrutiny, arguing that it leaves the judiciary free to decide cases based on preferences rather than principles, see Seeburger, The Muddle of the Middle Tier: The Coming Crisis in Equal Protection, 48 Mo. L. REV. 587 (1983).Google Scholar

¹¹⁷ The need for special scrutiny does not imply that the interests at stake must be deemed fundamental rights. The legitimacy of recognizing rights not grounded firmly in the text of the Constution has long been a matter of debate. See, e.g., R. BERGER, GOVERNMENT BY JUDICIARY (1977); C. BLACK, STRUCTURE AND RELATIONSHIP IN CONSTITUTIONAL LAW (1969); J.H. ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1981); L. HAND, THE BILL OF RIGHTS 56-77 (1958); L. HAND, THE SPIRIT OF LIBERTY (3rd ed. 1960); L. LUSKY, BY WHAT RIGHT? (1975); Bork, The Impossibility of Finding Welfare Rights in the Constitution, 1979 WASH. U.L.Q. 695Google Scholar; Rehnquist, The Notion of a Living Constitution, 54 TEX. L. REV. 693 (1976).Google Scholar Although some scholars find the recognition of “new” rights a proper task of judicial review, e.g., A. BICKELL, THE LEAST DANGEROUS BRANCH (1962); M. PERRY, THE CONSTITUTION, THE COURTS AND HUMAN RIGHTS: AN INQUIRY INTO THE LEGITIMACY OF CONSTITUTIONAL POLICYMAKING BY THE JUDICIARY (1982); Brest, The Misconceived Quest for the Original Understanding, 60 B.U.L. REV. 204 (1980)Google Scholar; Dworkin, The Forum of Principle, 56 N.Y.U. L. REV. 469 (1981)Google Scholar; Laycock, Taking Constitutions Seriously: A Theory of Judicial Review, 59 TEX. L. REV. 343 (1981)Google Scholar; Unger, The Critical Legal Studies Movement, 96 HARV. L. REV. 561 (1983)CrossRefGoogle Scholar; such arguments are not necessary to support an explicit form of heightened scrutiny.

¹¹⁸ N. DANIELS, JUST HEALTH CARE (1985).

¹¹⁹ By the same token, only those services which actually meet important human needs qualify as special. These include, in broad summary, preventive, curative, and rehabilitative personal medical services, as well as personal and social support services, adequate nutrition and shelter, sanitary and safe working and living conditions, exercise and rest. Id. at 28-32.

¹²⁰ This is not to suggest that opportunities are not limited by an individual's inherent talents. The argument is that they ought not be circumscribed by remediable illness or injury. Id.

¹²¹ Id. at 27.

¹²² It is questionable whether even illnesses associated with certain behaviors, such as smoking and obesity, are the result of voluntarily assumed risks. See Wikler, Persuasion and Coercion for Health, 56 MILBANK MEMORIAL FUND Q. 303 (1978)CrossRefGoogle Scholar.

¹²³ N. DANIELS, supra note 118, at 39-48.

¹²⁴ J. RAWLS, A THEORY OF JUSTICE (1971). Rawls' justice as fairness provides a social contract theory for the development of principles of justice to govern the basic institutions of society. He argues that rational people in the original position behind a veil of ignorance—not knowing their own physical or mental condition, talents, wealth, or status in society—would agree upon the following two principles:

Id. at 302.

Under these principles, social primary goods (liberty and opportunity, income and wealth, and the bases of self-respect) must be distributed equally, unless an unequal distribution benefits the least well-off. Rawls, of course, is not directly concerned with health care. His theory concerns the basic structure of justice, not the distribution of a particular good or detailed application of his principles of justice. Nevertheless, A Theory of Justice leaves open— and may even invite—the possibility of generating specific distributional goals. Green attempted to extend the theory by arguing that health care should be a social primary good, subject to the “maximin” principle. Green, Health Care and Justice in Contract Theory Perspective, in ETHICS AND HEALTH POLICY 111, 117 (1976). Green's approach, however, does not adequately distinguish health care from other goods such as food and shelter. If all such goods are primary, they should be subjected to the distributional priority accorded in the original position. Such detailed rule development goes far beyond Rawls’ construct. See Daniels, Right to Health Care and Distributive Justice: Programmatic Worries, 4 J. MED. & PHIL. 174, 184-86 (1979)CrossRefGoogle Scholar.

¹²⁵ The Court's concern for process and decisions, expressing its inability to create “new” rights to be protected under the equal protection clause, may simply mask a preference for states’ rights over individual rights, which itself yields a substantive notion of equality. This posture has not disturbed adherence to the position that political rights—such as voting and access to the criminal justice system—are fundamental. The result is an operating principle that there are certain things with respect to which we are to be treated equally, and others with respect to which we may not be treated equally. This is clearly a substantive conception of the equal protection guarantee. It is masked, however, by the ostensibly purely procedural choice of the standard of review for equal protection claims.

¹²⁶ See Tussman & TenBroek, supra note 18.

¹²⁷ See supra Section II.

¹²⁸ Because illness is universal, it is readily understood. Yet, few people have the knowledge or tools to take care of themselves. For this reason, health care is different not only from consumer goods like lawnmowers and VCRs, but also from such basic necessities as food, clothing and shelter. We are reasonably good judges—if not good practitioners—of how much food we need, what housing will serve to shelter us, and what clothing will keep us suitably dressed. The need for adequate nutrition, shelter and clothing also does not vary significantly from one person to the next. Therefore, it is possible to allow people to acquire their own housing, food and clothing through an economic market. As a practical matter, these subsistence goods can be traded in the market place as though they were ordinary consumer goods. It is also relatively easy for government to provide such subsistence by granting funds or vouchers for housing, clothing and food. Even governments can reasonably estimate the costs of an adequate diet, apartment or wardrobe.

The same is not necessarily true for health care. The unpredictability of illness and injury renders financial planning for health care a risky business—the business of insurance. It is difficult, however, for an individual to determine how much health insurance to purchase. Most people exhibit minimal willingness to provide for the future, especially when faced with pressing immediate needs. In any event, adequate health insurance is simply not affordable for a significant proportion of the population. A society that attempts to provide for the subsistence needs of its people cannot rely on the convenient mechanism of granting the indigent a sum of money to pay for health care, as it can for food, clothing and shelter. It must provide that health care in some other way, such as the direct provision of services or direct purchase of insurance for its beneficiaries. Therefore, the matter of exactly what services are provided—and to whom—becomes a matter of importance.

¹²⁹ See, e.g., Sunstein, Public Value, Private Interests, and the Equal Protection Clause, 1982 SUP. CT. REV. 127.Google Scholar Sunstein argues that as a practical matter, “the Court requires differential treatment to be justified by reference to some public value.” Id. at 131. As examples of public values, he suggests furnishing collective goods, such as protection of the environment, traffic safety, progressive taxes, welfare benefits and possibly promoting employment in a declining industry. Id. at 136-37.

¹³⁰ For example, although it would be reasonable to exclude medical benefits for cosmetic surgery, it would be unreasonable to exclude benefits for reconstructive surgery to treat an arm shattered in an accident.

¹³¹ Subsidized services, however, could exclude very expensive forms of treatment if reasonable alternatives were provided.

¹³² Aside from the availability of other methods to encourage health-promoting behavior, determining eligibility for benefits on the basis of disease alone is not likely to serve the purpose of discouraging disfavored behavior to any appreciable degree. Despite epidemiological evidence that a substantial proportion of lung cancer is caused by smoking, for example, a simplifying assumption that all smokers’ lung cancers are attributable to their smoking behavior would undoubtedly cast too wide a net. Even if the determination were made on a case by case basis within some reasonable parameters of accuracy, it would hardly do to wait until an individual's diagnosis was made to terminate his eligibility. In short, it is unlikely that the use of illness conditions could directly strve to distinguish adequately among persons for purposes of promoting healthful behavior. Moreover, the objective, although laudable, is hardly of such magnitude to warrant the deprivation of critical health care services.

¹³³ See, e.g., Fort Hamilton-Hughes Memorial Hosp. Center v. Southward, 12 Ohio St. 3d 263,466 N.E.2d 903,905-06 (1984) (where a “statute does not affect a fundamental interest or suspect class, it must be upheld if there exists any conceivable set of facts under which the classification rationally furthers a legitimate governmental objective.”); Rudolph’ v. Iowa Methodist Medical Center, 293 N.W.2d 550, 557 (Iowa 1980) (“Except when a classification is suspect or involves fundamental rights, this court applies the rational basis test.”).

¹³⁴ See, e.g., Committee to Defend Reproductive Rights v. Myers, 29 Cal. 3d 252, 625 P.2d 779, 172 Cal. Rptr. 866 (1981); Serrano v. Priest, 18 Cal. 3d 728, 557 P.2d 929, 135 Cal. Rptr. 345 (1976).

¹³⁵ Several state constitutional provisions suggest that health care is deemed to be of special importance. See, e.g., ALASKA CONST, art. VII, § 4: Public Health; HAWAII CONST, art. IX, § 1: Public Health, § 3: Public Assistance; KAN. CONST, art. VII, § 4: Public Institutions & Welfare; LA. CONST, art. XII, § 8: Welfare Unemployment Compensation & Health; Mo. CONST, art. I, § 2: Promotion of General Welfare-Natural Right of Persons; N.Y. CONST, art. XVII, §§ 3, 7: Social Welfare; OKLA. CONST, art. XXV, § 1: Relief & Care of Needy, Aged & Disabled Persons; WYO. CONST, art. VII, § 20: Duty of Legislature to Protect & Promote Health & Morality of the People.

¹³⁶ See, e.g., Alaska Children's Servs. v. Williamson, 606 P.2d 786, 789 n.9 (Alaska 1980) (“The need for medical care is more immediate than the need for child care. Cost settlement is, therefore, justified as a means of attracting medical providers and insuring that needy Alaskans will have immediate access to necessary medical care.”); Lambert v. Wentworth, 423 A.2d 527, 532 (Me. 1980) (“We do recognize that the veteran's right to a tax exemption preference does not … involve a fundamental right, such as the right to the basic necessities of life, like food, shelter, health care, etc.”); Prendergast v. Nelson, 199 Neb. 97, 113, 256 N.W.2d 657, 668 (1977) (“We are dealing with the fundamental right to medical care.” The court upheld recovery limits on medical malpractice adopted for the purpose of assuring the availability of care).

¹³⁷ In Midlantic Nat'l Bank v. New Jersey Dep't of Envtl. Protection, 474 U.S. 494 (1986), the Court affirmed a decision which would prohibit trustees for bankrupt companies from abandoning properties to avoid paying for cleaning up toxic waste. Justice Powell, in a 5-4 majority opinion, found an implied exception in the Bankruptcy Reform Act of 1978 which would limit trustees’ powers to contravene state health and safety regulations. Although the decision was a narrow one, it stressed the importance of compliance with state regulations “reasonably designed to protect the public health or safety from identified hazards.” Id. at 507.

¹³⁸ Reich, The New Property, 73 YALE L.J. 733 (1964).CrossRefGoogle Scholar