“Nearly Allied to Her Right to Be”—Medicaid Funding for Abortion: The Story of Harris v. McRae
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Description
When several states legalized abortion and, subsequently, the Supreme Court transformed abortion from a crime to a right in 1973 in Roe v. Wade, many assumed that health insurance, private and public, would provide funding for all women to assert that right. For a short time, coverage was unchallenged. This chapter tells the story of Harris v. McRae, the 1980 Supreme Court decision upholding the Hyde Amendment's exclusion of coverage for medically necessary abortions from the otherwise comprehensive Medicaid program. Decided in the context of a growing, religiously-impelled mobilization against abortion and funding, this decision not only gutted the right to abortion for poor women, but it also undermined fundamental constitutional principles. Furthermore, the decision set the stage for restrictive approaches to constitutional protection of fundamental rights affecting the poor, reproductive rights, and previously assumed rights more broadly. As we write almost thirty years later, the Hyde Amendment and the McRae decision remain unchallenged obstacles to comprehensive health care for poor women and to recognition of their full citizenship. The above narrative reflects the horrific experience of many women who could pay for an abortion before Roe v. Wade. The authors began litigating Medicaid cases as fairly new feminist lawyers involved in the political and legal struggles for women's rights, reproductive freedom, and economic justice, and served as co-counsel for plaintiffs in McRae. This chapter focuses on the course and complexities of the litigation. It begins with discussion of an early case that considered state restriction on Medicaid funding for abortion. After placing this issue in the context of the welfare rights movement and the effort to extend legal principles to poor people, the chapter turns to the political backlash against legal abortion that led to the adoption of the Hyde Amendment in 1976. A 14-month intermittent trial, from October 1977 to December 1978, in the U.S. District Court in Brooklyn explored the consequences to the lives and health of poor women of excluding insurance coverage for “medically necessary” abortions as a matter of discrimination against the exercise of fundamental rights. We also explored the role of religious belief and institutional mobilization in the debate about the Hyde Amendment, asserting that the amendment violated separation of church and state and the liberty of conscience. Though ultimately the U.S. Supreme Court's brutal 5-4 decision rejected all these claims, these disputes remain central to the abortion, health care, and church/state debates in the twenty-first century. Finally, the chapter examines the impact of McRae on constitutional doctrine and on the lives and health of poor women. It concludes that it is time to stop excluding abortion from federally funded or regulated health programs and the poor from meaningful constitutional protection.
Source Publication
Women and the Law Stories
Source Editors/Authors
Elizabeth M. Schneider, Stephanie M. Wildman
Publication Date
2011
Recommended Citation
Copelon, Rhonda and Law, Sylvia A., "“Nearly Allied to Her Right to Be”—Medicaid Funding for Abortion: The Story of Harris v. McRae" (2011). Faculty Chapters. 1282.
https://gretchen.law.nyu.edu/fac-chapt/1282
