Harris v. McRae

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 to provide a broad range of medically necessary and essential services for poor people 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 a pregnant 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 a poor 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 "the proponents 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."