You Know About Roe v. Wade, But Have You Heard of Harris v. McRae?
June 30th, 2011
Thirty-one years ago today, a closely divided Supreme Court dealt a devastating blow to low-income women in the United States when it upheld the Hyde Amendment.
In the case Harris v. McRae, the Court decided by a 5-4 vote that it did not violate women’s constitutional rights for Congress to eliminate federal funding for abortion under Medicaid.
In essence, the Supreme Court said that women’s problems accessing abortion care are a result of their poverty, not a result of the government’s policy to eliminate federal funding of abortion care.
The Court declared that Congress is free to adopt policies that favor childbirth over abortion. This decision upended the balance struck in Roe v. Wade, which placed the government’s interest in protecting women’s lives and health over and above the government’s interest in protecting the potential life of a fetus, and established the right of every woman to make the decision about whether to have an abortion for herself.
As Justice Marshall wrote in his dissenting opinion, “The Court’s decision today marks a retreat from Roe v. Wade and represents a cruel blow to the most powerless members of our society.”
The Hyde Amendment Takes its Toll
The decision to uphold the Hyde Amendment has taken a heavy toll on women’s lives ever since. As a result of Congress cutting off federal Medicaid funds, all but 15 states have stopped paying for abortion under their Medicaid programs.
Before the Hyde Amendment went into effect, Medicaid paid for about one-third of all abortions in the country, clearly demonstrating the need for public funding of abortion. Today, on average, a 10-week abortion costs $451, and the price goes up from there. For a woman whose income is low enough to qualify for Medicaid, $451 is a small fortune.
Although the women who challenged the Hyde Amendment lost at the Supreme Court, they won in the lower court, and the Supreme Court decision was very close – they lost by just one vote.
What can we learn by looking at the opinions of the justices who disagreed with the final decision?
Four Justices Protest the Hyde Amendment
The dissenting justices wrote impassioned opinions that made a number of arguments against the Hyde Amendment. Here is a sampling of their powerful words:
Justice Marshall: It is an “undeniable fact” that “for women eligible for Medicaid – poor women – denial of a Medicaid-funded abortion is equivalent to denial of legal abortion altogether.”
“The Hyde Amendment is designed to deprive poor and minority women of the constitutional right to choose abortion.”
Justice Brennan: “In the abstract, of course, this choice is hers alone… But the reality of the situation is that the Hyde Amendment has effectively removed this choice from the indigent woman’s hands.”
“Worse yet,” Justice Brennan writes, the Hyde Amendment does not impose restrictions “upon everyone in our Nation, rich and poor alike.” Instead, it imposes restrictions “only upon that segment of our society which, because of its position of political powerlessness, is least able to defend its privacy rights from the encroachments of state-mandated morality.”
Justice Blackmun: “There truly is “another world ‘out there,’” a world of poverty, “the existence of which the Court, I suspect, either chooses to ignore or fears to recognize” in issuing this “punitive” and “alarming” decision.
Justice Stevens: “Having decided to alleviate some of the hardships of poverty by providing necessary medical care, the government must use neutral criteria in distributing benefits.”
“Because a denial of benefits for medically necessary abortions inevitably causes serious harm to the excluded women, it is tantamount to severe punishment.”
As these strongly worded excerpts of the Justices’ opinions show, the values of fairness, racial equality, and guaranteeing constitutional rights for everyone, regardless of wealth, all have a place in our discussions about public funding of abortion.
Today we continue to fight against bans on abortion funding and for abortion access for all women. You can show your support for basic fairness for women by telling your Senators to oppose S. 906, a sweeping bill that would permanently write into law a ban on federal funding of abortion in almost every situation.
Fight the legacy of the Hyde Amendment! Click here to tell your Senators to oppose S. 906, the "No Taxpayer Funding for Abortion" Act.