Harris v. McRae

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 least that 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 women will 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 First Amendment right to freedom of religion and free exercise of religion." To the contrary, 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.