Abortion Law: Roe Was Right, But McRae Was Wrong

Today marks the anniversary of Roe v. Wade, the Supreme Court opinion that recognized the fundamental right to abortion, and with it comes the yearly celebrations and critiques.

For decades, critics of Roe have claimed that the case was a travesty of justice and wrongly decided—that the opinion prompted such fierce backlash that abortion remains, arguably, the most hot-button topic in our society 42 years later. There is, however, another little-remembered abortion-rights case that was wrongly decided and represents the real travesty of justice: The narrow 5-4 opinion in Harris v. McRae, issued only seven years after Roe, upheld the Hyde Amendment—an annual appropriations measure that denies Medicaid coverage for abortion except for life-threatening pregnancies or those resulting from rape or incest. The decision essentially condoned a two-tiered system that maintains the abortion right for affluent women and erases it for poor women.

The McRae case also opened the door for loosening the judicial standard of review applied to abortion restrictions, making it much easier for them to be deemed valid, long before the more familiar Planned Parenthood v. Casey decision did so officially in 1992. It is because of the court’s quick retreat in McRae from its own precedent in Roe that the debate around abortion rights has lingered for so long, flaring up with every new federal and state limit and every lawsuit challenging them. In short, it is largely because of McRae that Roe is no longer a reality for so many women and, frankly, hasn’t been for years.

The Hyde Amendment puts abortion out of reach for the nine million women of reproductive age who are currently enrolled in Medicaid, as well as a significant portion of seven million others likely to become qualified for Medicaid under the Affordable Care Act. It is estimated that one of every three poor women who seeks an abortion ends up carrying a pregnancy to term because she cannot pull together enough money to pay for the procedure. And a recent study showed that a woman who cannot obtain a desired abortion is three times more likely to fall into poverty within two years. What these women know all too well, but the slim majority of the McRae court apparently did not, is that the constitutional right to an abortion means little if a woman lacks the resources to access care.

The McRae court also ignored precedent by upholding a restriction that did not contain an exception to protect a woman’s health—even though Roe said the government’s interest in fetal life never outweighed its interest in maternal health. Moreover, the court abandoned several of its time-honored principles. First, it violated government neutrality by letting Congress cover childbirth while denying abortion coverage. Second, it enabled government coercion by allowing politicians to try to influence a woman’s decision whether to have an abortion. Third, it permitted Congress to place unconstitutional conditions on the exercise of a fundamental right by providing pregnancy-related care to women only if they effectively relinquished their right to have an abortion.

Finally, the court failed to enforce the human rights to life, health, dignity and equality, or to consider equal protection theories—including whether women who seek abortions are a protected class because they have been subjected to a history of invidious discrimination, because the government has shown animus toward them and because race, gender and class intertwine so that the Hyde Amendment has a disproportionate impact on the most marginalized.

Had the McRae court treated abortion like the fundamental right it declared it to be in Roe, there would have been no opportunity for the Hyde policy to proliferate and engulf military personnel, federal employees, immigrants, D.C. residents and so many more. A proper outcome might also have held Casey at bay and kept the floodgates closed against the innumerable and wide-ranging state abortion regulations that, among other things, force doctors to perform and show patients unnecessary ultrasounds, mandate compliance with medically unnecessary rules intended to shut abortion clinics down, and police women’s reasons for having an abortion.

So the next time you hear someone complaining about the abortion case that was wrongly decided, make sure they know it’s McRae. And then come join us in the effort to overturn this outrageous decision so that all women in this country can attain the liberty, equality and dignity promised by Roe—regardless of where they live, what insurance they have or how little money they make.

Photo by Flickr user Donkey Hotey under license from Creative Commons 2.0

Jill E. Adams and Jessica Arons are also co-authors of “A Travesty of Justice: Revisiting Harris v. McRae” [pdf], which appears in the latest edition of the William & Mary Journal of Women and the Law.







About and

Jessica Arons, J.D., is the president and CEO of the Reproductive Health Technologies Project.
Jill E. Adams, J.D., is the executive director of If/When/How: Lawyering for Reproductive Justice.