Appellants
Secretary of Health and Human Services Patricia R. Harris, joined by SenatorsJames L. Buckley and Jesse A. Helms, and Representative Henry J. Hyde as "intervenor-defendants"
Appellees
Cora McRae, on behalf of herself and all New York state women similarly situated, and the New York City Health and Hospitals Corp.
Appellants' Claim
That the Hyde Amendment was constitutional, and that states did not have to pay the costs of indigent women's abortions, even those found medically necessary.
Chief Lawyer for Appellants
Wade H. McCree, Jr., U.S. Solicitor General
Chief Lawyer for Appellees
Rhonda Copelon
Justices for the Court
Warren E. Burger, Lewis F. Powell, Jr., William H. Rehnquist, Potter Stewart(writing for the Court), Byron R. White
Justices Dissenting
Harry A. Blackmun, William J. Brennan, Jr., Thurgood Marshall, John Paul Stevens
Place
Washington, D.C.
Date of Decision
30 June 1980
Decision
Under the Hyde Amendment, states participating in the Medicaid program couldnot receive federal reimbursements for even medically necessary abortions anddid not have to pay for them.
Significance
This ruling meant that the federal government would not subsidize abortions for poor women--even when a medical necessity.
Following its 1973 decision to make abortion legal in Roe v. Wade, theSupreme Court ruled on a number of state attempts to limit women's access to(or state support for) abortions. In careful "pick and choose" decisions, the Court found some restrictions--no saline abortions, attempting to preservethe life of aborted fetuses, and prior written consent of husbands or minors'parents--to be unconstitutional.
Other restrictions--prohibiting the abortion of a "viable" fetus, certain record-keeping regulations on abortion providers, and requiring pregnant women to furnish written consent prior to an abortion--were considered constitutional. Finally, in 1980, the Court ruled on the constitutionality of an even moresevere measure: the federal Hyde Amendment, which withheld Medicaid fundingeven in cases of medically necessary abortions.
The Hyde Amendment
In 1965, Congress created the Medicaid program for the poor and infirm by adding Title XIX to the Social Security Act. Eleven years later, Congress passedthe first of the Hyde Amendments to Medicaid--imposing varying degrees of financial restrictions on abortions. In 1980, Congress decided that no money would be provided for abortions unless the mother's health was endangered by aterm pregnancy. Victims of rape or incest--if they reported their pregnancy promptly--could also receive the federally-sponsored medical procedures.
The same day that the first Hyde Amendment was enacted, Cora McRae, a pregnant Medicaid recipient seeking an abortion, filed a legal challenge to the amendment in the District Court for the Eastern District of New York. (Like NormaMcCorvey, the plaintiff in Roe v. Wade, McRae delivered her child before the suit reached its conclusion.) She claimed that "the Hyde Amendment violated the First, Fourth, Fifth, and Ninth Amendments of the Constitution insofar as it limited the funding of abortions to those necessary to save the life of the mother, while permitting the funding of costs associated with childbirth."
The following day, district judge John F. Dooling, Jr., issued a preliminaryinjunction. His full decision, issued three weeks later, was in full agreement with McRae. The case was also certified as a class action suit on behalf ofall Medicaid-eligible New York State women who were pregnant or potentiallypregnant and who would seek abortions during the 24 weeks of gestation.
Health and Human Services secretary, Patricia R. Harris, immediately appealedto the Supreme Court. Having just upheld the withdrawal of funding for "unnecessary" abortions in Beal v. Doe (1977) and Maher v. Roe (1977), the Court vacated the injunction against the enforcement of the Hyde Amendment and sent McRae's case back to Dooling for reevaluation against these recent decisions.
Back at the District Court
Before reconsidering the merits of the case, Dooling gave permission for a number of additional plaintiffs to intervene. In their amended complaint, the plaintiffs asserted that any state participating in the Medicaid program mustprovide the means for medically necessary abortions, whether or not they would be reimbursed by the federal government. The plaintiffs also challenged theconstitutionality of the Hyde Amendment, claiming that it violated both thereligion clause of the First Amendment (because its views coincided with theCatholic Church) and the Fifth Amendment. (The Courts have interpreted the Fifth Amendment as containing implied Due Process and Equal Protection Clauses.Thus, the federal government must grant equal protection to its citizens inthe same manner as the Fourteenth Amendment requires states to grant equal protection to their citizens.)
Dooling, although dissolving his earlier injunction, held a trial on the merits of McRae's claims. He released a 214-page ruling finding that Title XIX would have required states to make medically necessary abortions available to poor women but that the Hyde Amendment, if constitutional, would remove that responsibility.
The judge ruled that the federal government had not violated the First Amendment's prohibition against a state-sponsored religion. However, the amendmentdid violate the free exercise clause of the First Amendment by prohibiting anaffected woman from seeking a medically necessary abortion in accordance with "her religious beliefs under certain Protestant and Jewish tenants."
Finding that the amendment also violated the Due Process Clause of the FifthAmendment, Dooling ruled that all versions of the amendment were invalid. Heordered Harris to "authorize the expenditure of federal matching funds" for medically necessary abortions.
Returning to the Supreme Court
Attorney Wade H. McCree, Jr., appealed Dooling's ruling to the Supreme Court.He shifted attention from maternal health to fetal preservation, stating "that the Hyde Amendment is rationally related to the legitimate governmental interests in preserving potential human life and encouraging childbirth."
One of the justices asked him, "Would you make the same rational basis argument . . . if it was her [McRae's] death rather than adverse impact on her health that was involved?"
McCree answered, "I think I would say that you would make the rational relation . . . It doesn't prevent this woman from obtaining an abortion; it just denies her federal funding . . . "
The Court pressed, "Don't we have to assume for purposes of analysis at leastthat some women will be denied abortions if they don't receive federal funding?"
McCree agreed: "Oh, I think we have to. I don't think there is any question about that."
The Court responded: "We therefore must also assume that some of these womenwill suffer serious medical harm."
That was not Congress's concern, McCree implied: "We must assume that . . . just because Roe said that the state could not punish a person . . . for obtaining an abortion . . . that still did not obligate the state or the federal government to reimburse her . . . "
Did the Hyde Amendment violate the First Amendment? McCree had "difficulty" with the idea that to "refuse funding for them would somehow deny their FirstAmendment right to freedom of religion and free exercise of religion." To thecontrary, he argued "the Free Exercise Clause prevents interference [with religion] . . . but doesn't obligate the state to finance it." He pointed out that the state is not required to give a citizen religious objects "for example, a Bible or any religious artifacts" so that the religion may be "freely" practiced.
A Matter of Survival
McRae's attorney, Rhonda Copelon, spoke passionately for all poor women affected by the amendment:
Copelon argued that the "strict scrutiny" standard should be applied to the case, rather than the less arduous "rational basis" standard, although she felt even the lesser test could not be met by a law that favored a fetus over apoor woman whose health was endangered by pregnancy. "The . . . Constitution,. . . protects born people, [and] one cannot make that trade-off between people who exist and the potentiality of future life . . . This is a fundamentally irrational trade-off."
One of the justices asked: "Is this an argument that the fetus is not a person for purposes of the Constitution?"
Copelon answered, "It is not a person for the purposes of the Constitution, and I dare say that in our health-care system, even if some whole person's life is at stake, we don't ask another person to involuntarily sacrifice their health and their life for their well-being."
Turning to the First Amendment aspects of the case, Copelon claimed that "theproponents of the Hyde Amendment sought to take a position . . . on the question of when human life begins. That question, this Court held in Roe v. Wade, is impermissible, and I submit that it is impermissible under the Fifth Amendment . . . [and] impermissible under the First Amendment, in both the . . . establishment clause and free exercise clause."
The Decision
However, the Supreme Court ruled in favor of the government. After noting that a state does not have to pay for even medically necessary abortions, Justice Stewart turned to the constitutionality of the amendment itself. Referringto Maher v. Roe, one of the two 1977 cases in which a state's lack offunding for nontherapeutic abortions had been upheld, he wrote:
Turning to the religious issues in the case, Stewart dealt first with McRae'sclaim that the Hyde Amendment violated the "Establishment Clause because itincorporates into law the doctrines of the Roman Catholic Church . . . " Noting that the government was free to pass laws against larceny, even though "the Judaeo-Christian religions oppose stealing," Stewart wrote that "we are convinced that the fact that the funding restrictions in the Hyde Amendment maycoincide with the religious tenants of the Roman Catholic Church does not, without more, contravene the Establishment Clause."
The issue of what level of scrutiny ought to be applied was the last addressed. After finding that the "rational relationship" test was sufficient, Stewart concluded:
The Hyde Amendment has been passed, in one version or another, in every subsequent year. The versions passed in 1993, and since, have reinstated funding for abortions requested by victims of incest or rape.
Related Cases
Secretary of Health and Human Services Patricia R. Harris, joined by SenatorsJames L. Buckley and Jesse A. Helms, and Representative Henry J. Hyde as "intervenor-defendants"
Appellees
Cora McRae, on behalf of herself and all New York state women similarly situated, and the New York City Health and Hospitals Corp.
Appellants' Claim
That the Hyde Amendment was constitutional, and that states did not have to pay the costs of indigent women's abortions, even those found medically necessary.
Chief Lawyer for Appellants
Wade H. McCree, Jr., U.S. Solicitor General
Chief Lawyer for Appellees
Rhonda Copelon
Justices for the Court
Warren E. Burger, Lewis F. Powell, Jr., William H. Rehnquist, Potter Stewart(writing for the Court), Byron R. White
Justices Dissenting
Harry A. Blackmun, William J. Brennan, Jr., Thurgood Marshall, John Paul Stevens
Place
Washington, D.C.
Date of Decision
30 June 1980
Decision
Under the Hyde Amendment, states participating in the Medicaid program couldnot receive federal reimbursements for even medically necessary abortions anddid not have to pay for them.
Significance
This ruling meant that the federal government would not subsidize abortions for poor women--even when a medical necessity.
Following its 1973 decision to make abortion legal in Roe v. Wade, theSupreme Court ruled on a number of state attempts to limit women's access to(or state support for) abortions. In careful "pick and choose" decisions, the Court found some restrictions--no saline abortions, attempting to preservethe life of aborted fetuses, and prior written consent of husbands or minors'parents--to be unconstitutional.
Other restrictions--prohibiting the abortion of a "viable" fetus, certain record-keeping regulations on abortion providers, and requiring pregnant women to furnish written consent prior to an abortion--were considered constitutional. Finally, in 1980, the Court ruled on the constitutionality of an even moresevere measure: the federal Hyde Amendment, which withheld Medicaid fundingeven in cases of medically necessary abortions.
The Hyde Amendment
In 1965, Congress created the Medicaid program for the poor and infirm by adding Title XIX to the Social Security Act. Eleven years later, Congress passedthe first of the Hyde Amendments to Medicaid--imposing varying degrees of financial restrictions on abortions. In 1980, Congress decided that no money would be provided for abortions unless the mother's health was endangered by aterm pregnancy. Victims of rape or incest--if they reported their pregnancy promptly--could also receive the federally-sponsored medical procedures.
The same day that the first Hyde Amendment was enacted, Cora McRae, a pregnant Medicaid recipient seeking an abortion, filed a legal challenge to the amendment in the District Court for the Eastern District of New York. (Like NormaMcCorvey, the plaintiff in Roe v. Wade, McRae delivered her child before the suit reached its conclusion.) She claimed that "the Hyde Amendment violated the First, Fourth, Fifth, and Ninth Amendments of the Constitution insofar as it limited the funding of abortions to those necessary to save the life of the mother, while permitting the funding of costs associated with childbirth."
The following day, district judge John F. Dooling, Jr., issued a preliminaryinjunction. His full decision, issued three weeks later, was in full agreement with McRae. The case was also certified as a class action suit on behalf ofall Medicaid-eligible New York State women who were pregnant or potentiallypregnant and who would seek abortions during the 24 weeks of gestation.
Health and Human Services secretary, Patricia R. Harris, immediately appealedto the Supreme Court. Having just upheld the withdrawal of funding for "unnecessary" abortions in Beal v. Doe (1977) and Maher v. Roe (1977), the Court vacated the injunction against the enforcement of the Hyde Amendment and sent McRae's case back to Dooling for reevaluation against these recent decisions.
Back at the District Court
Before reconsidering the merits of the case, Dooling gave permission for a number of additional plaintiffs to intervene. In their amended complaint, the plaintiffs asserted that any state participating in the Medicaid program mustprovide the means for medically necessary abortions, whether or not they would be reimbursed by the federal government. The plaintiffs also challenged theconstitutionality of the Hyde Amendment, claiming that it violated both thereligion clause of the First Amendment (because its views coincided with theCatholic Church) and the Fifth Amendment. (The Courts have interpreted the Fifth Amendment as containing implied Due Process and Equal Protection Clauses.Thus, the federal government must grant equal protection to its citizens inthe same manner as the Fourteenth Amendment requires states to grant equal protection to their citizens.)
Dooling, although dissolving his earlier injunction, held a trial on the merits of McRae's claims. He released a 214-page ruling finding that Title XIX would have required states to make medically necessary abortions available to poor women but that the Hyde Amendment, if constitutional, would remove that responsibility.
The judge ruled that the federal government had not violated the First Amendment's prohibition against a state-sponsored religion. However, the amendmentdid violate the free exercise clause of the First Amendment by prohibiting anaffected woman from seeking a medically necessary abortion in accordance with "her religious beliefs under certain Protestant and Jewish tenants."
Finding that the amendment also violated the Due Process Clause of the FifthAmendment, Dooling ruled that all versions of the amendment were invalid. Heordered Harris to "authorize the expenditure of federal matching funds" for medically necessary abortions.
Returning to the Supreme Court
Attorney Wade H. McCree, Jr., appealed Dooling's ruling to the Supreme Court.He shifted attention from maternal health to fetal preservation, stating "that the Hyde Amendment is rationally related to the legitimate governmental interests in preserving potential human life and encouraging childbirth."
One of the justices asked him, "Would you make the same rational basis argument . . . if it was her [McRae's] death rather than adverse impact on her health that was involved?"
McCree answered, "I think I would say that you would make the rational relation . . . It doesn't prevent this woman from obtaining an abortion; it just denies her federal funding . . . "
The Court pressed, "Don't we have to assume for purposes of analysis at leastthat some women will be denied abortions if they don't receive federal funding?"
McCree agreed: "Oh, I think we have to. I don't think there is any question about that."
The Court responded: "We therefore must also assume that some of these womenwill suffer serious medical harm."
That was not Congress's concern, McCree implied: "We must assume that . . . just because Roe said that the state could not punish a person . . . for obtaining an abortion . . . that still did not obligate the state or the federal government to reimburse her . . . "
Did the Hyde Amendment violate the First Amendment? McCree had "difficulty" with the idea that to "refuse funding for them would somehow deny their FirstAmendment right to freedom of religion and free exercise of religion." To thecontrary, he argued "the Free Exercise Clause prevents interference [with religion] . . . but doesn't obligate the state to finance it." He pointed out that the state is not required to give a citizen religious objects "for example, a Bible or any religious artifacts" so that the religion may be "freely" practiced.
A Matter of Survival
McRae's attorney, Rhonda Copelon, spoke passionately for all poor women affected by the amendment:
This case . . . involves the survival and the health of potentially millions of poor women . . . and it involves reaffirmation of the simple rule of law . . . this Court recognized in Roe v. Wade . . . This case arises in the context of a Medicaid program designed toprovide a broad range of medically necessary and essential services for poorpeople throughout the country . . . but for the Hyde Amendment, it would cover abortions as a mandatory medically necessary service . . . [The Hyde Amendments] preclude the exercise of sound medical judgment about the health of apregnant woman or indeed even of fetal life. They prefer fetal life at the expense of maternal health and even maternal life.
Copelon argued that the "strict scrutiny" standard should be applied to the case, rather than the less arduous "rational basis" standard, although she felt even the lesser test could not be met by a law that favored a fetus over apoor woman whose health was endangered by pregnancy. "The . . . Constitution,. . . protects born people, [and] one cannot make that trade-off between people who exist and the potentiality of future life . . . This is a fundamentally irrational trade-off."
One of the justices asked: "Is this an argument that the fetus is not a person for purposes of the Constitution?"
Copelon answered, "It is not a person for the purposes of the Constitution, and I dare say that in our health-care system, even if some whole person's life is at stake, we don't ask another person to involuntarily sacrifice their health and their life for their well-being."
Turning to the First Amendment aspects of the case, Copelon claimed that "theproponents of the Hyde Amendment sought to take a position . . . on the question of when human life begins. That question, this Court held in Roe v. Wade, is impermissible, and I submit that it is impermissible under the Fifth Amendment . . . [and] impermissible under the First Amendment, in both the . . . establishment clause and free exercise clause."
The Decision
However, the Supreme Court ruled in favor of the government. After noting that a state does not have to pay for even medically necessary abortions, Justice Stewart turned to the constitutionality of the amendment itself. Referringto Maher v. Roe, one of the two 1977 cases in which a state's lack offunding for nontherapeutic abortions had been upheld, he wrote:
Regardless of whether the freedom of a woman to choose to terminate her pregnancy for health reasons lies at the core or the periphery of the due process liberty recognized in Wade, it simply does not follow that a woman's freedom of choice carries with it a constitutional entitlement to the financialresources to avail herself of the full range of protected choices.
The reason why was explained in Maher: although governmentmay not place obstacles in the path of a woman's freedom of choice, it neednot remove those not of its own creation. Indigency falls in the later category.
Turning to the religious issues in the case, Stewart dealt first with McRae'sclaim that the Hyde Amendment violated the "Establishment Clause because itincorporates into law the doctrines of the Roman Catholic Church . . . " Noting that the government was free to pass laws against larceny, even though "the Judaeo-Christian religions oppose stealing," Stewart wrote that "we are convinced that the fact that the funding restrictions in the Hyde Amendment maycoincide with the religious tenants of the Roman Catholic Church does not, without more, contravene the Establishment Clause."
The issue of what level of scrutiny ought to be applied was the last addressed. After finding that the "rational relationship" test was sufficient, Stewart concluded:
The Hyde Amendment, by encouraging childbirth exceptin the most urgent circumstances, is rationally related to the legitimate governmental objective of protecting potential life. By subsidizing the medicalexpenses of indigent women who carry their pregnancies to term while not subsidizing abortions (except those whose lives are threatened), Congress has established incentives that make childbirth a more attractive alternative thanabortion for persons eligible for Medicaid . . . Nor is it irrational that Congress has authorized federal reimbursement for medically necessary servicesgenerally, but not for certain medically necessary abortions. Abortion is inherently different from other medical procedures, because no other procedure involves the purposeful termination of a potential life.
The Hyde Amendment has been passed, in one version or another, in every subsequent year. The versions passed in 1993, and since, have reinstated funding for abortions requested by victims of incest or rape.
Related Cases
- Beal v. Doe, 432 U.S. 438 (1977).
- Maher v. Roe, 432 U.S. 464 (1977).
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