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April 28, 2015, New York – In response to a report issued today by the…
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Harris v. McRae is a class action lawsuit brought by the Center for Constitutional Rights (CCR) challenging federal restrictions on Medicaid funds for medically necessary abortions. In the wake of McRae, state court litigation challenging funding restrictions under state constitutions, as opposed to the U.S. Constitution, became the primary strategy for winning back Medicaid funding.
On January 15, 1980, after 13 months of deliberation, Federal District Court Judge John F. Dooling Jr. invalidated the Hyde Amendment—federal restrictions on Medicaid funds for medically necessary abortions—as violating the First and Fifth Amendments. His decision documented the health impact of denying poor women abortions; the major religious traditions which support the conscientious choice of abortion; and the pervasively religious character of the anti-abortion position that the fertilized egg is equivalent to a person. The court’s holding required the federal government and all states to provide Medicaid reimbursement for all medically necessary abortions for indigent pregnant women.
The decision came as a result of a nationwide class action lawsuit, McRae v. Harris, brought in 1976 by attorneys from the Center for Constitutional Rights (CCR), the ACLU, and Planned Parenthood of New York City. Plaintiffs were women who needed Medicaid abortions, doctors who wanted to provide Medicaid abortions to their patients, and the Women’s Division of the Board of Global Ministries of the United Methodist Church. A companion suit was filed by the New York City Health and Hospitals Corporation.
On the day the lawsuit was filed, Judge Dooling issued a nationwide injunction preventing implementation of the Hyde Amendment. But in June 1977, the Supreme Court decided in Beal v. Doe and Maher v. Rose that states were not required to reimburse for elective abortions, and lifted Judge Dooling’s injunction, sending the case back for reconsideration. Judge Dooling then issued a temporary restraining order which prevented the Department of Health, Education and Welfare (HEW) from implementing the law for an additional week. Thereafter over a period of 15 months, Judge Dooling heard testimony from 30 witnesses, including leading doctors, theologians and poor women, and received over 500 exhibits on the medical and religious aspects of the case. During the same period, 17 challenges filed by poor women and doctors in different states resulted in 16 injunctions preserving Medicaid abortion. In the wake of McRae, state court litigation challenging funding restrictions under state constitutions, as opposed to the U.S. Constitution, became the primary strategy for winning back Medicaid funding.
Thereafter, the Supreme Court rejected the government’s effort to stop Judge Dooling’s order from taking effect, while granting a request to have the government’s appeal heard on an expedited schedule. CCR urged the Court to hear the case quickly because it had already agreed to hear arguments in William v. Zbaraz, the challenge to the Illinois state Medicaid restrictions, and believed it essential for the Court to consider the extensive factual record on the health and religious aspects of the restrictions which we developed in McRae. On April 21, 1980, after seven weeks of intensive briefing of the issues, CCR staff attorney Rhonda Copelon argued the case before the Supreme Court, explaining that under the Constitution, it is impermissible to prefer the potential life of a fetus to the health and life of a pregnant woman.
On June 30, 1980, a sharply divided Supreme Court reversed Judge Dooling’s decision, ignoring his comprehensive findings of fact as well as the principle that the state must respect the constitutional rights of the poor in distributing or limiting welfare benefits. The Court approved the elimination of abortion from publicly funded health care programs even where a pregnant woman’s health is gravely endangered or she is pregnant as a result of rape or incest.
In a widely criticized decision, a five-man majority drew a sharp line between funding restrictions on abortion and those imposed in other areas. Stripping poor women of the right to abortion and to self-preservation itself, the Court explained that where funding was concerned, the minimal rationality of the “anything goes” test applies because poverty is the fault of the poor.
Without consideration of the careful district court findings on the religious nature of the anti-abortion position and pressures which produced the funding restriction, the majority also rejected plaintiffs’ claim that the Hyde Amendment violated the First Amendment’s Establishment Clause. It left open, however, the issue decided in plaintiffs’ favor by the district court—whether such funding restrictions interfere with conscientious beliefs which dictate abortion violation of the free exercise clause.
The four dissenters each wrote acerbic opinions adopting plaintiffs’ arguments that the state cannot rationally protect fetal life at the expense of women’s health and that the discriminatory funding of abortion and childbirth impermissibly invades the decisional rights of poor women. So deep was the disagreement that after the opinion was delivered by Justice Stewart, Justice Stevens read his dissent from the bench.
It is impossible to fully assess the impact of the Hyde Amendment. In the 1970s, in all but 13 states, a legal abortion cost more than the entire monthly allotment for a family on welfare. Many women were forced into compulsory childbearing, the life-endangering risks and permanent health damage of extra-legal or self-induced abortion, or the desperation of scraping up the funds to pay for a legal abortion. Two months after the Hyde Amendment went into effect, Rosie Jimenez, a Chicana woman from Texas, died from complications following an illegal abortion. Three more women are known to have died in 1977-78, but the toll from such complications is completely unknown. After the Carter Administration, HEW increasingly failed to monitor these consequences.
Prior to 1976, the federal government reimbursed states for all abortions covered under their Medicaid programs. Following this, successive riders limiting federal matching funds to the states were enacted. The original Hyde Amendment, which affected the 1977 HEW Appropriations Act, allowed funding for abortion when two doctors certified that severe and long-lasting physical health damage would result if the pregnancy were carried to term. These two riders also permitted funding for pregnancies resulting from rape or incest reported within 60 days of the incident. The FY 1980 rider excised the health exception. Following the Supreme Court decision, Congress allowed federal funding for abortions of life-endangering and some rape or incest pregnancies only if the states agreed to cover them. In the FY 1982 appropriations, the rape and incest exception to the funding ban was eliminated.