While reproductive justice activists across the nation celebrate last week’s 5-3 Supreme Court decision on the Texas abortion laws case, we should not forget the June 30 anniversary of the ugly 5-4 decision in Harris v. McRae (and the Maher v. Roe case that preceded it) that locked in the Hyde Amendment. It remains in force until this day.
Here’s some background on the Hyde Amendment:
In 1973, when abortion became legal across the country, the federal Medicaid program covered abortion as a part of standard medical care. In the first years of legalized abortion, federal Medicaid paid for over one-third of all abortions performed in the U.S. It became clear that Medicaid coverage of abortion is essential for low-income women to build the lives they want.
In 1976, Congress passed the Hyde Amendment, which banned federal Medicaid coverage of abortion. The law went into effect in 1977, and in 1980 the U.S. Supreme Court held that the Hyde Amendment did not violate the constitutional rights of women on Medicaid. The intent of the Hyde Amendment is to make it more difficult for low-income women to get the abortions they need.
Here are the words of Henry Hyde, the Republican Congressman from Illinois who sponsored the bill, making its intent perfectly clear.
‘“I certainly would like to prevent, if I could legally, anybody having an abortion, a rich woman, a middle-class woman, or a poor woman,” he said. “Unfortunately, the only vehicle available is the … Medicaid bill.”
Many of those middle- and upper-class women have always been able to evade draconian laws restricting abortion. Access to needed medical procedures has been an airplane ride away for those who live in states with restrictive laws. That’s no so for their poorer sisters.
This year, the Democratic Party platform is taking a strong stance on reproductive rights:
Reproductive Rights: The platform goes further than previous Democratic platforms on women’s reproductive rights. It champions Planned Parenthood health centers and commits to push back on all Republican efforts to defund it. The platform also vows to oppose, and seek to overturn, all federal and state laws that impede a woman’s access to abortion, including by repealing the Hyde Amendment. It also strongly supports the repeal of harmful restrictions that obstruct women’s access to healthcare around the world, including the Global Gag Rule and the Helms Amendment, which bars US assistance to other countries that provide safe, legal, abortion. have waited a long time to see these words “repealing the Hyde Amendment.”
Many of us have waited a very long time to finally see the possibility of sending Hyde back to the hell of forced birtherism that spawned it. Today, we stand at the crossroads of justice. We have within our grasp the ability to shift the Supreme Court for decades to come, and to gift future generations of women the right to their own bodies.
As we celebrate today, it behooves us to also hear the voices on the court who stood strong for us in the past, even though they did not prevail at that time. I am neither a legal scholar, nor an attorney. Most of us are not. But I’m committed—as we all should be— to see the heirs to those voices seated on the court. I am saddened each year when I realize my women’s studies students know little of Roe and nothing of Hyde. Nor do they learn much about the court, or read the decisions that shape their lives.
In Harris v. McRae “Justice Brennan wrote a dissent, in which Justice Marshall and Justice Blackmun joined. Justice Marshall and Justice Blackmun also authored separate dissents, as did Justice Stevens.”
Here’s Justice Brennan’s dissent:
A poor woman in the early stages of pregnancy confronts two alternatives: she may elect either to carry the fetus to term or to have an abortion. In the abstract, of course, this choice is hers alone, and the Court rightly observes that the Hyde Amendment "places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy." But the reality of the situation is that the Hyde Amendment has effectively removed this choice from the indigent woman's hands. By funding all of the expenses associated with childbirth and none of the expenses incurred in terminating pregnancy, the Government literally makes an offer that the indigent woman cannot afford to refuse. It matters not that, in this instance, the Government has used the carrot, rather than the stick. What is critical is the realization that, as a practical matter, many poverty-stricken women will choose to carry their pregnancy to term simply because the Government provides funds for the associated medical services, even though these same women would have chosen to have an abortion if the Government had also paid for that option, or indeed if the Government had stayed out of the picture altogether and had defrayed the costs of neither procedure.
Here’s Justice Marshall’s dissent:
As I explained in Maher, the asserted state interest in protecting potential life is insufficient to "outweigh the deprivation or serious discouragement of a vital constitutional right of especial importance to poor and minority women." In Maher, the Court found a permissible state interest in encouraging normal childbirth. The governmental interest in the present case is substantially weaker than in Maher, for under the Hyde Amendment, funding is refused even in cases in which normal childbirth will not result: one can scarcely speak of "normal childbirth" in cases where the fetus will die shortly after birth, or in which the mother's life will be shortened or her health otherwise gravely impaired by the birth. Nevertheless, the Hyde Amendment denies funding even in such cases. In these circumstances, I am unable to see how even a minimally rational legislature could conclude that the interest in fetal life outweighs the brutal effect of the Hyde Amendment on indigent women. Moreover, both the legislation in Maher and the Hyde Amendment were designed to deprive poor and minority women of the constitutional right to choose abortion. That purpose is not constitutionally permitted under Roe v. Wade.
...
III
The consequences of today's opinion -- consequences to which the Court seems oblivious -- are not difficult to predict. Pregnant women denied the funding necessary to procure abortions will be restricted to two alternatives. First, they can carry the fetus to term -- even though that route may result in severe injury or death to the mother, the fetus, or both. If that course appears intolerable, they can resort to self-induced abortions or attempt to obtain illegal abortions -- not because bearing a child would be inconvenient, but because it is necessary in order to protect their health. The result will not be to protect what the Court describes as "the legitimate governmental objective of protecting potential life," but to ensure the destruction of both fetal and maternal life. "There is another world ‘out there,' the existence of which the Court . . . either chooses to ignore or fears to recognize." In my view, it is only by blinding itself to that other world that the Court can reach the result it announces today.
Here are links to the dissents of Justice Blackmun and Justice Stevens.
For so many issues that have an impact on our health, well-being, and democracy, the Supreme Court becomes the final arbiter. The modern court we are familiar with began its shift to the right with Burger.
Those of you who are interested in that history should read this new book The Burger Court and the Rise of the Judicial Right, by authors Michael J. Graetz, Professor of Law at Columbia Law School and the Justus S. Hotchkiss Professor of Law Emeritus at Yale University, and Linda Greenhouse, recipient of the Pulitzer Prize and other major journalism awards, who covered the Supreme Court for The New York Times for nearly 30 years.
A fresh and revelatory look at the Warren Burger Supreme Court finds that it was not a “moderate” or transitional court, as often portrayed, but a conservative one that still defines the constitutional landscape we live in today. When Richard Nixon campaigned for the presidency in 1968 he promised to change the Supreme Court. With four appointments to the court, including Warren E. Burger as the chief justice, he did just that. In 1969, the Burger Court succeeded the famously liberal Warren Court, which had significantly expanded civil liberties and was despised by conservatives across the country.
The Burger Court is often described as a “transitional” court between the liberal Warren Court and the Rehnquist and Roberts Courts, a court where little of importance happened. But as Michael J. Graetz and Linda Greenhouse show, the Burger Court veered well to the right in such areas as criminal law, race, and corporate power. Even while declaring a right to abortion in Roe v. Wade, it drew the line at government funding for poor women. The authors excavate the roots of the most significant Burger Court decisions and show how their legacy affects us today.
The most comprehensive evaluation of the Burger Supreme Court ever written for a general audience, The Burger Court and the Rise of the Judicial Right draws on the personal papers of the justices as well as other archives to reveal how the Court shaped its major decisions. It will surprise even legal scholars and historians with its insights into a period that has received too little attention from either.
One of the articles I give students to read about Hyde is titled “How Hyde Hurts Women,” by Marisa Spalding.
Marisa “Mimi” Spalding is a policy analyst in NHeLP’s Washington, D.C. office. Her work focuses on the intersection of reproductive justice, Medicaid, and health disparities. Prior to joining NHeLP, Mimi was the Director of Public Policy at Physicians for Reproductive Health, where she provided leadership to ensure that reproductive health policies and laws are evidence-based and represent underserved communities by engaging and supporting physician advocacy at both the state and federal levels.
She writes not just about Hyde but places it into the broader context of health outcomes :
Health coverage matters. Low-income women and women of color consistently have poorer reproductive health outcomes than their white counterparts, and these disparities are only exacerbated by Hyde and other abortion restrictions:
According to Centers for Disease Control and Prevention (CDC) statistics, women of color experience unintended pregnancy at twice the rate of their white counterparts, with rates generally higher in the South. According to the CDC, of all new diagnoses of HIV infections among women in the United States, 64 percent were African American women. In addition, according to a joint report to the United Nations Committee on the Elimination of Racial Discrimination from the Center for Reproductive Rights, African American women die during childbirth at a rate three to four times that of their white counterparts. Not coincidentally, many of the states with the highest maternal mortality rates and number of new HIV infections are concentrated in the South—the same states refusing to expand their Medicaid programs under the ACA.
Though there is a paucity of data, the CDC has found that American Indian and Alaska Native (AI/AN) women suffer from intimate partner violence and sexual assault at rates far exceeding women of other racial and ethnic groups. Nearly half of all AI/AN women have experienced rape, physical violence and/or stalking by an intimate partner. Yet reproductive healthcare from the Indian Health Service follows similar restrictions as the Hyde Amendment—or may even be more restrictive, according to a 2014 article in the American Journal of Public Health.
She concludes:
Repealing the Hyde Amendment is one of the most pressing public health and economic justice issues of our time. Although efforts to erode women’s access to abortion and comprehensive reproductive healthcare show no signs of abating, it is encouraging that Rep. Barbara Lee (D-CA) and other women’s health champions in the House introduced the Equal Access to Abortion Coverage in Health Insurance (EACH Woman) Act. This bill would put an end to discriminatory abortion coverage restrictions like Hyde and instead allow a woman to make personal healthcare decisions that are best for herself and her family.
As the debate over abortion continues, advocates for social justice and health equity must not allow the most underserved and marginalized communities who will be most harmed by these destructive policies to be left out of the conversation or—as race and gender scholar and professor Kimberlé Crenshaw puts it—“invisible in plain sight.”
We need to get the word out about the EACH Woman Act. You can get involved in fighting for it by joining this Daily Kos Campaign:
Sign the petition: Protect Every Woman's Health
Life’s most personal decisions – such as when to become a parent – should be just that. But far too often, politicians interfere in this most personal decision by banning insurance coverage for abortion care.
That’s why we need the EACH Woman Act. It ensures health coverage of abortion for every woman regardless of what she earns or where she lives. Essentially, this bill would repeal Hyde Amendment provisions that prevent a woman from accessing all of her health care options just because she is poor.
About the EACH Woman Act:
The EACH Woman Act, introduced by Congresswoman Barbara Lee (D-CA), Congresswoman Jan Schakowsky (D-IL), and Congresswoman Diana DeGette (D-CO), over seventy Congressional Co-Sponsors and with the support of thirty-six women’s health, rights, and justice advocacy organizations, ensures coverage for abortion for every woman, however much she earns or however she is insured.
For too long, politicians have interfered in women’s health decisions by banning insurance coverage for abortion care.
Whether she has private or government-funded health insurance, every woman should have coverage for a full range of pregnancy-related care, including abortion. When health programs for women with low incomes cover birth control and abortion – not just childbirth – and people can plan if and when to have children, it’s good for them and for society as a whole.
The EACH Woman Act makes a meaningful change for women and their families, creating two important standards for reproductive health.
- First, the bill respects that every woman should be able to make her own decisions about pregnancy. If a woman gets her care or insurance through the federal government, she will be covered for all pregnancy-related care, including abortion.
- Second, the EACH Woman Act prohibits political interference with decisions of private health insurance companies to offer coverage for abortion care. Federal, state and local legislators will not be able to interfere with the private insurance market to prevent insurance companies from providing abortion coverage.
Representative Barbara Lee spoke about the act last year on Democracy Now.
Published on Jul 9, 2015
In a landmark push to turn back the record tide of anti-choice restrictions, pro-choice U.S. lawmakers have introduced a bill to expand insurance coverage of abortion. The Equal Access to Abortion Coverage in Health Insurance Act, or EACH Woman Act, would dismantle the nearly 40-year-old Hyde Amendment, which bans federal funding of abortion, except in cases of life endangerment, rape or incest. The Hyde Amendment denies coverage of abortion to many of the country’s poorest women, who are disproportionately women of color.
The legislative steps are being taken. Our job now is to get out the vote and work to change state legislatures, Congress, the Senate, and hold on to the White House. On the national stage both Hillary Clinton and Bernie Sanders have called for ending Hyde.
It was wonderful to hear her say these words in New Hampshire:
“I believe we need to protect access to safe and legal abortion—not just in principle, but in practice. Any right that requires you to take extraordinary measures to access it is no right at all. Not when patients and providers have to endure harassment and intimidation just to walk in to a health center. Not when making an appointment means taking time off from work, finding childcare, and driving halfway across your state. Not when providers are required by state law to recite misleading information to women in order to shame and scare them. And not as long as we have laws on the book like the Hyde Amendment making it harder for low-income women to exercise their full rights.”
And to see these tweets:
When I think about Hyde, I also think of the real cost in lives. I’d like to dedicate this piece today to Rosie Jiménez.
On October 3, 1977, Rosaura Jiménez died in Texas of an illegal abortion, becoming the first known woman to die because of the Hyde Amendment, which eliminated federal Medicaid funding for abortion. Congress first adopted the Hyde Amendment on September 30, 1976, but it did not go into effect until August 4, 1977. Within just two months, it had driven a woman to take desperate steps that resulted in her death.
What do we know about Rosaura Jiménez? Rosie, as she was known, was a 27 year-old Latina college student and single mother. Rosie was six months away from graduating with a teaching credential – a ticket to a better life for her and her daughter, who was just five years old at the time.
Rosie had a $700 scholarship check in her purse when she died. She went to a doctor in her hometown of McAllen, Texas to ask for an abortion, but the doctor wouldn’t provide one because Medicaid would no longer reimburse the service. So determined was she to complete her education that instead of using her scholarship money to pay for an abortion out of pocket, she crossed the border into Mexico and obtained a cheaper, illegal, and unsafe abortion there. Within hours Rosie was bleeding, cramping, and running a fever. She spent the last seven days of her life in the hospital, slowly, painfully dying of septic shock.
For Rosie, for all of us—let’s flip the Court, take back the Senate, change the House, and hold the White House.
Most of all, let us ensure that women, no matter our economic status, race, or ethnicity can live our lives free of our bodies being controlled by unjust laws and unequal treatment.
To hell with Hyde!