Hastings Race and Poverty Law Journal


Mel Cousins


The introduction of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 has led to considerable litigation on the rights of immigrants to healthcare and welfare benefits. There is significant divergence between the approaches adopted by different courts (both federal and state). This divergence is based, in part, on the different statutory schemes involved, as well as different approaches to Equal Protection. However, none of the cases have reached the United States Supreme Court, so the "correct" approach remains unclear. Following the fiscal crisis of 2008, several states moved for increased exclusion of certain immigrants, residing in the country legally, from state healthcare or welfare schemes. Decisions regarding such increased exclusion are currently under challenge in both the federal and state courts, including Connecticut, Hawai'i, Maine, Massachusetts, New Jersey, and Washington. Such challenges are now in front of the Courts of Appeals in both the First and Ninth Circuits.

In the past, courts have come to very different conclusions as to the issues involved. On one hand, the Massachusetts Supreme Judicial Court has held that strict scrutiny'applies to the exclusion of immigrants from a state healthcare scheme (with federal funding) and that the law under challenge did not satisfy the requirement. On the other, the Connecticut Supreme Court has held that a decision to abolish a state healthcare scheme for immigrants not entitled under the state-federal Medicaid scheme did not involve any discrimination, because no comparable citizen was being provided with state benefits. This Article discusses recent cases and analyzes potential resolutions of such issues consistent with equal protection law.

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