Harris v. McRae

448 U.S. 297 (1980), argued 21 Apr. 1980, decided 30 June 1980 by vote of 5 to 4; Stewart for the Court, Brennan, joined by Marshall and Blackmun, and Stevens in dissent. Harris upheld the constitutionality of the Hyde Amendment, a law that barred the use of federal Medicaid funds for abortions except where the life of the mother would be endangered or in cases of rape or incest. The Court held that the right to choose abortion protected by Roe v. Wade (1973) did not require the government to subsidize that choice. According to the Court, Roe meant that the government could not put obstacles in the path of choice. The inability of poor women to purchase medical services, including abortions, without government assistance, said the Court, was not an obstacle the government had created. The dissenters argued that the government did burden the woman's choice of abortion as against childbirth by providing medical assistance when she chose the latter but not when she chose the former.

Critics of Harris argue that the only reason the government has for refusing to pay for abortions is that it believes that abortions are immoral, a belief that under Roe v. Wade may not be the basis for government action, and that the decision sanctions a two‐class system of the availability of abortions. Defenders reply that abortion is not one of those situations, rare in our society, in which the government has the duty to alleviate the burdens, which are many, that result from the unequal distribution of wealth in a market‐oriented economy.

See also Abortion; Gender; Indigency; Privacy.

— Mark V. Tushnet

Harris v. Mcrae, 448 U.S. 297 (1980), a case in which the Supreme Court upheld by a 5 to 4 vote the power of Congress to exclude elective abortions from coverage under the Medicaid program. The Hyde Amendment, named after Representative Henry Hyde and passed in several versions since 1976, barred the use of federal funds for abortions except when the mother's life was in danger or when the pregnancy resulted from rape or incest (the latter clause was later repealed). Although a Republican, Hyde received enough bipartisan support for the bill to be enacted by a Democratic Congress and president.

Cora McRae was one of several pregnant Medicaid recipients who brought suit, alleging that the Hyde Amendment violated the due process clause of the Fifth Amendment and the religion clauses of the First Amendment. At the time, the plaintiffs had reason for optimism because the Supreme Court had held that the government must subsidize other rights, such as the right to counsel, for the indigent. In addition, Congress had established the Medicaid program in 1965 under Title XIX of the Social Security Act specifically to give federal aid to states choosing to reimburse the indigent for medical treatments they could not afford. McRae contended that Title XIX obligated states receiving Medicaid funds to fund medically necessary abortions despite the Hyde Amendment's provisions. Indeed the federal district court granted McRae injunctive relief, ruling (491 F. Supp. 630) that although the Hyde Amendment amended (rather than violated) Title XIX, it nevertheless did violate both the Fifth and First Amendments.

In 1977, however, the Supreme Court upheld state laws similar to the Hyde Amendment, suggesting that abortion would not be treated like other rights. Harris v. McRae applied the same reasoning to the national government, reversing and remanding the district court ruling while holding the Hyde Amendment constitutional. "Although government may not place obstacles in the path of a woman's exercise of her freedom of choice," wrote Justice Potter Stewart, "it need not remove those of its own creation. Indigency falls in the latter category." The dissenters, especially Thurgood Marshall, argued that the decision ignored "another world 'out there'" in which poor women could not get abortions without assistance from Medicaid. The Hyde Amendment fore-shadowed a number of attacks on abortion rights after 1989, both in individual state legislatures and, in 1995, in a federal ban on abortions in military hospitals and for those covered by federal health plans. The Hyde Amendment was still in effect in the early 2000s, although states retained the right to subsidize abortions with their own funds.

Bibliography

Baer, Judith A. Women in American Law. New York: Holmes and Meier, 1991.

Bingham, Marjorie. Women and the Constitution. St. Paul, Minn.: The Upper Midwest Women's History Center, 1990.

Hoff-Wilson, Joan. Law, Gender, and Injustice. New York: New York University Press, 1991.