It’s Your Fault For Not Having a Penis

Via Ann, Megan Carpentier finds that the “Medicare program spent $450 each on about 47,000” penis pumps, although “Medicaid (which serves low income Americans) only covers abortions in the case of rape, incest or the health of the mother.” Although an amusing tale of government waste — maintaining erections is a legitimate medical problem, but they overpaid by hundred of dollars each — as Carpentier suggests, this story has a serious point.

Given the recent death of Henry Hyde, allow me to point out again that the constitutionality of the Hyde Admendment is a much more difficult question than it might seem on first glance. It is true that Americans don’t have to right to health care spending per se, but this doesn’t end the dispute. As Justice Stevens noted in his dissent in Harris v. McRae — which upheld the Hyde Amendment — “When the sovereign provides a special benefit or a special protection for a class of persons, it must define the membership in the class by neutral criteria; it may not make special exceptions for reasons that are constitutionally insufficient.” To take an obvious example, Americans also don’t have the constitutional right to a state-funded education, but when the state provides one it cannot provide one to white people but not black people. And as the fact that the feds are willing to shell out for dick pumps at $450 a throw makes clear, abortions are not excluded from Medicaid funding for a legitimate neutral reason, such as the procedure being insufficiently important or too expensive. It can’t be because it’s too dangerous, because 1)an abortion performed by a trained professional is safer than carrying a pregnancy to term and 2)the Hyde Amendment makes the procurement of unsafe abortions more likely. The Hyde Amendment does not have a justification related to the criteria of the program; its sole purpose is to obstruct the exercise of a fundamental right.

This raises serious constitutional problems. And while reasonable people can disagree about whether the policy is arbitrary enough to be unconstitutional, it’s certainly arbitrary enough to be awful public policy.