It’s Time to Overturn Harris v. McRae and Repeal the Hyde Amendment

Caitlin Van Sant, 2016 Sarah Weddington Writing Prize Winner

This article is based on a scholarly paper titled Some Women are more Equal than Others: Why the Court Erred in Harris v. McRae, How the States are Fighting Back, and a Path for Reconsideration. The paper won honorable mention in the 2016 Sarah Weddington Writing Prize for New Student Scholarship in Reproductive Rights. To learn more about the Writing Prize, including how to submit an entry, click here

Every federal spending bill since 1976 contains an insidious appropriations rider called the Hyde Amendment. The Hyde Amendment prohibits the use of federal funds for abortions and primarily impacts low-income women by denying the use of Medicaid funds for medically necessary abortion care. In 1980, the Supreme Court broke with its own constitutional analysis under Roe v. Wade and upheld the constitutionality of the Hyde Amendment.

Roe established that the right to procure an abortion without government interference is a constitutionally protected fundamental right and thus entitled to strict scrutiny. Since Roe, in lieu of banning abortion outright, anti-abortion groups have repeatedly endeavored to erode the constitutional protections Roe affords. In 1980, the Court in Harris v. McRae declined to review the constitutionality of the Hyde Amendment under strict scrutiny and instead held that the Hyde Amendment met the less stringent rational basis test. The Court failed to recognize the coercive nature of the Hyde Amendment and its burden on the exercise of a fundamental right. Because it allows funding for one medically necessary outcome of pregnancy but not another, the Hyde Amendment violates the Equal Protection Clause of the Fourteenth Amendment and is coercive and non-neutral. The neutrality principle states that once the government distributes benefits, even if it is not constitutionally obligated to act, it must do so in a neutral manner.  By funding one pregnancy option but forbidding funding for another constitutionally protected option for similarly situated women, the government’s actions under the Hyde Amendment are not neutral and therefore are unconstitutional.  Although unsuccessful at the federal level in McRae, some states have been more receptive to a neutrality argument under their state constitutions.

State constitutions can, and do, grant broader protection of fundamental rights than the federal constitution. Medicaid is a national entitlement program, but the states and the federal government fund Medicaid jointly. Because of this partnership, states can opt to cover services beyond what the federal government proscribes. Medicaid funding restrictions have been successfully overturned because state courts determined that their state constitutions protect a broader scope of rights than found in the federal constitution. States have found these rights under theories of due process, equal protection, express privacy provisions, and state privilege and immunities clauses. Currently, seventeen states pay for “all or most medically necessary abortions.” Of those seventeen states, thirteen are required to do so due to a court order.

State supreme courts like those in Massachusetts, New Jersey, and Minnesota have all found that their state constitutions confer greater protections than the U.S. Constitution. In Right to Choose v. Byrne, the New Jersey Supreme Court found stronger equal protection guarantees under its state constitution than under Federal law. The Byrne court determined that New Jersey’s prohibition on using state funds for medically necessary abortions violated the state’s constitution and the principle of government neutrality when conferring benefits, holding that “No compelling state interest justifies that discrimination and the statute denies equal protection to those exercising their constitutional right to choose a medically necessary abortion.” A common theme runs through state Hyde Amendment cases: a state cannot coerce indigent women into choosing one outcome of a protected choice by distributing benefits in a non-neutral manner.

Despite progress in some states, 32 states and the District of Columbia only provide abortions in situations of life endangerment, rape, and incest. This means that a woman’s ability to get the care she needs may drastically vary based on where she lives and her means to travel to another state to receive care. Essentially, the Hyde Amendment coerces vulnerable women into making a choice that is not actually a choice because of the removal of other viable healthcare options. The Hyde Amendment’s restrictions have directly caused illness, and even the death, of women who need abortion care. It is time for the government to actually protect women’s health and end this devastating policy.


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