Adams, Jill E., and Jessica Arons. “A Travesty of Justice: Revisiting Harris v. McRae.” William & Mary Journal of Women and the Law 21, no. 1 (2014): 5–57.
AnnotationThis article provides a critical overview of Harris v. McRae, the 1980 Supreme Court case that narrowly upheld the Hyde Amendment as constitutional. Following a brief history of the Hyde Amendment and legal challenges to it, Adams and Arons take the McRae opinion to task, explaining why the case was wrongly decided on several due process and equal protection grounds. The authors argue that the Court applied the wrong standard of review to the abortion funding ban, thereby making it easier for states to restrict abortion provision and access thereafter. They contend that the Court ignored precedent by upholding an abortion restriction that did not include an exception for the pregnant person’s health. Additionally, the authors insist that the Court abandoned its own time-honored principles - violating government neutrality by letting Medicaid cover childbirth and not abortion; enabling government coercion by allowing politicians to try to influence people’s intimate decisions; and permitting Congress to place unconstitutional conditions on the exercise of a fundamental right. Adams and Arons posit several legal theories under which McRae eventually could be overturned, including the human rights to life, health, dignity and equality. They also make the case for considering people who seek abortions as 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 populations. The authors focus on the Hyde Amendment’s impacts on pregnant people of color living in poverty, incorporating the most compelling findings from contemporary social science literature on abortion funding restrictions.
About the Authorhttps://www.law.berkeley.edu/research/center-on-reproductive-rights-and-justice/about-us/people/jill-e-adams/