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Strategic Initiative: Overturning Harris v. McRae
Securing public insurance coverage of abortion.
If/When/How believes that human and constitutional rights should be enjoyed equally by all — and not be contingent on one’s income level, insurance carrier, or geography. In the 1980 case Harris v. McRae, the United States Supreme Court narrowly upheld the constitutionality of the Hyde Amendment, which prohibits federal Medicaid coverage of nearly all abortions. The slim majority reasoned the while the State could not place an obstacle in the path of a person exercising their right to abortion, it need not remove obstacles from their path. Dissenting Justices reasoned that the Hyde Amendment is an effective ban on the right to abortion for people with low incomes, a disproportionate number of whom are women of color. The ruling was a grave miscarriage of justice that set the course for a legally acceptable, though morally reprehensible, two-tiered system of abortion access, which has worsened over time and disproportionately disadvantaged low-income people, especially communities of color.
Longstanding efforts to end the Hyde Amendment and restore state Medicaid coverage of abortion through legislation must be accompanied by novel legal theories, scholarship, and litigation to overturn damaging precedent and legally secure the right to abortion coverage. If/When/How is leading the charge to generate creative and courageous approaches to undoing this legal travesty.
Return to the full list of our strategic initiatives here.
If/When/How authored an amicus brief cosigned by 23 organizations working in Pennsylvania and the U.S. to ensure Reproductive Justice and the health and well-being of Black women and girls. Read moreDownload
If/When/How authored an amicus brief on behalf of New Voices for Reproductive Justice–cosigned by 24 advocacy groups –in a May 2020 case challenging the Pennsylvania law that bans abortion coverage under Medicaid. The Pennsylvania ban, like all Medicaid abortion bans, is especially harmful to Black women, girls, and gender-nonconforming people –43 percent of non-elderly Black Pennsylvanians rely on Medicaid for health insurance and deserve the same access to care as everyone else. Read moreDownload
A letter to the U.N. Special Rapporteur on Extreme Poverty, authored by legal scholars from the SIA Legal Team (now If/When/How: Lawyering for Reproductive Justice) and the CUNY School of Law, concerning "three issues that converge to affect the reproductive lives of women living in extreme poverty: limits on cash assistance for children born into families already receiving public benefits, prohibition on public insurance (Medicaid) coverage of most abortions, and criminalization of self-induced abortion." Read moreDownload
This brief highlights that Louisiana's unconstitutional admitting privileges law, combined with existing barriers such as the Hyde Amendment that bans federal health insurance programs from covering abortion, would put abortion entirely out of reach for people already marginalized by our health care system. If the high court upholds the Louisiana law, it would have a devastating impact, with people of color, people with low incomes, and LGBTQ people bearing the brunt of the harm. Read moreDownload
If/When/How Executive Director Jill E. Adams, J.D., along with other leading constitutional law scholars, coauthored this brief in Mabel v. Hamilton arguing that the Maine Supreme Court should not rely on wrongly decided Harris v. McRae to uphold a ban on public funding for abortion care in the state. Read moreDownload
In Ms. magazine on the 2015 anniversary of Roe v. Wade, If/When/How Executive Director Jill E. Adams and co-author Jessica Arons revisit the perhaps lesser known Harris v. McRae, the 1980 Supreme Court case that upheld the Hyde Amendment, which outlaws federal funding for abortion care for those enrolled in Medicaid. Read moreDownload
Authored by If/When/How Executive Director Jill E. Adams and Jessica Arons, this article revisits Harris v. McRae, the 1980 Supreme Court decision upholding the Hyde Amendment, which denies federal funding for abortion care for people enrolled in Medicaid. Read moreDownload
And Damned If They Don't: Prototype Theories to End Punitive Policies Against Pregnant People Living in Poverty
In the Georgetown Journal of Gender and the Law, Jill E. Adams, J.D., and Melissa Mikesell, J.D., examine the ways in which the State coerces or impedes the reproductive freedom of those experiencing poverty and review relevant caselaw on the intersection of economic and reproductive justice and rights, with an eye toward improving the legal and economic circumstances of pregnant people. Read moreDownload