The story of the near-death of the Hyde Amendment, like so many good stories, begins with a group of angry women.
The law, which for 40 years now has clung like a barnacle to the federal budget, cuts off access to abortion for millions of low-income women on Medicaid by placing a virtual ban on federal funding for the procedure. (In the years since its first passage, exceptions have been made for life endangerment, rape, and incest.)
Because the amendment must be renewed on an annual basis, the question of poor women’s basic right to abortion has been brought before Congress every year since 1976. And every year, a majority of Congress concludes that poor women don’t have one.
And so over the last four decades, the law has done what it was designed to do: A 2009 analysis from the Guttmacher Institute found that one in four women with Medicaid coverage subject to the Hyde Amendment report not being able to access an abortion for lack of coverage. These restrictions also disproportionately affect women of color’s access to the procedure.
But this wasn’t always the case. For a brief window between 1976 and 1980, it seemed like the annual dismantling of poor women’s abortion rights would be stopped before it could really get started.
Though much of their story has faded from view, the legal case that nearly killed Hyde started in New York City with a team of women—Medicaid recipients, lawyers, religious leaders, and feminist rabble-rousers—who took the reproductive rights of poor women all the way to the Supreme Court.
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Cora McRae was young, pregnant, and on Medicaid when she first brought the challenge to Hyde to a New York district court. It was the same year the law had first been passed. Named anonymously alongside her were Jane Doe, Mary Doe, Susan Roe, and Ann Moe, all women in similar situations—low-income, first-term unwanted pregnancies, and no meaningful access to abortion without Medicaid coverage.
Before Hyde, Medicaid covered abortion in the same way it covered pregnancy and birth—as standard medical care. When that changed, the need for coverage among low-income women didn’t change with it: Around 42% of women obtaining abortions live below the federal poverty line, according to a 2008 Guttmacher report.
Arguing the case, first in federal court and then before the Supreme Court, was the late human rights lawyer and feminist Rhonda Copelon, who was then an attorney at the Center for Constitutional Rights. The team she organized around her, from co-counsel to consultants, was almost entirely women—which was no accident.
“When we were doing abortion litigation, as much as possible, the litigators were women,” Nancy Sterns, a former staff attorney with the Center for Constitutional Rights who also worked on the case, told me over the phone. “I can really only remember one of the cases I was involved with where there was a man. And he was a feminist so it was fine.”
Copelon’s argument against Hyde was built around two essential points: First that the law violated the equal protection clause of the Fifth Amendment because it deprived low- and no-income women on Medicaid of the meaningful ability to access abortion. Second, the law violated the First Amendment by turning what is essentially a Catholic view of abortion into federal policy.
“We had presented testimony from Rabbis that in the Jewish faith a woman must put her existing children first and has a duty not to risk her life and health by a dangerous pregnancy and hence obtain an abortion,” Janet Benshoof, a co-counsel on the case who went on to found the Center for Reproductive Rights and is now the president of the Global Justice Center, said in an email.
But not everyone working on the legal challenge was a lawyer. “I sort of got dragged in as an informal consultant on Catholic stuff,” said Janet Gallagher, who was in law school at the time she worked on the district case as well as Harris v. McRae when it reached the high court. She was a friend of Copelon’s and ran in the same activist circles around New York City.
Gallagher, now a retired administrative law judge for the New York City Department of Health and Mental Hygiene, had come up in the Catholic anti-war movement and called abortion “tough” for many of the women who, like her, were involved in the feminist movement of the 1970s but were also raised to believe that abortion was murder.
“I really frankly was not comfortable around the issue at the time,” Gallagher explained. (Her ambivalence was short-lived: She would go on to serve as the director of the ACLU’s women’s rights and reproductive rights projects.)
But, in part out of curiosity about the religious argument laid out by Copelon, she ended up going to court to watch while it was still being litigated in Brooklyn. The crass co-opting of religious doctrine she heard from the lawyers defending Hyde is ultimately what got her involved.
“They were fucking up theology,” she told me with a laugh. “They had to make references to theological issues within Catholicism that weren’t really familiar to them. With all due respect, they were not very sophisticated. I was sort of cringing.”
The late John Dooling Jr., a federal judge and a devout Catholic, seemed to agree. In his 214-page opinion overturning Hyde in 1980, he argued that the law violated the free exercise of religion of non-Catholic or Christian women who had different views on abortion. He also forcefully agreed with Copelon and Benshoof’s other core argument: By depriving low-income women of medical coverage for abortion, the law deprived them of the very right to an abortion.
Henry Hyde, the law’s namesake, wouldn’t dispute this. When first defending his law in Congress, he had made it clear that he went after poor women’s abortion rights simply because he could: “I would certainly like to prevent, if I could legally, anybody having an abortion, a rich woman, a middle class woman, or a poor woman. Unfortunately, the only vehicle available is the… Medicaid bill.”
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Arguments against the Hyde Amendment haven’t changed much in the last 40 years. The law still explicitly targets Medicaid recipients and disproportionately impacts low-income women and women of color. The law still takes an essentially religious view of the fetus and weighs it against a woman’s personhood.
“This case is one of simple principle and singular magnitude,” Copelon told the justices on April 21, 1980, in the opening statement of her oral argument at the Supreme Court. “It involves the survival and the health of potentially millions of poor women in this country, and it involves reaffirmation of the simple rule of law of the written Constitution that this Court recognized in Roe v. Wade.”
Copelon, Gallagher said, had bought a conservative blue skirt suit to wear to court that day. But the team of young women consulting on the case, many who also came down from New York to watch, had not.
“The lawyers had to have been mortified by us. I think I was in purple overalls,” Gallagher recalled.
On June 30, 1980, a 5-4 majority of the all-male Burger court upheld Hyde. Their argument in support of the law, looking back on it now, was as ageless and familiar as Copelon’s argument against it.
The court found that the government has no constitutional obligation to fund medically necessary abortions for women who receive their healthcare through Medicaid. In the majority opinion, the court wrote that “a woman’s freedom of choice [does not carry] with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices.”
A woman’s poverty, the court argued, is not the fault of the government. So neither, then, is her inability to pay for abortion services. Those five justices also rejected Copelon’s carefully constructed argument around religion, finding the correlation between the law and Catholic dogma to be merely coincidental.
But as in most major cases of historical significance, the dissents in Harris are just as telling as the majority opinion. Justice John Paul Stevens even went so far as to read his from the bench. But it was Justice Thurgood Marshall’s dissent, with its blunt articulation of the impact of Hyde, that stands out all these years later:
The Court’s opinion studiously avoids recognizing the undeniable fact that, for women eligible for Medicaid—poor women—denial of a Medicaid-funded abortion is equivalent to denial of legal abortion altogether.
“The four dissenters were adamant that Roe v Wade controlled this case and should have rendered the Hyde amendment invalid,” Benshoof, co-counsel on the case, wrote in an email. “Justice Blackmun, the author of the 7 to 2 Roe v. Wade just seven years earlier, in his dissent, used language showing how much his thinking had evolved since Roe into describing abortion in terms of women’s equality.”
The outcome of Harris was a crushing blow. The women involved in the case, many who had been involved from the start, were intimately aware of the stakes. “Devastating, just devastating,” Gallagher said of the day the ruling came down. “It was like somebody died. That was the physical impact of it.”
These women had walked Hyde to the edge of repeal, but the law was ultimately left intact. To this day, just 15 states use government funds to pay for abortion services. In 2014, according to Guttmacher, 49% of abortion patients had a family income that put them below the federal poverty level. In 2000, that number was 27%. This year is the first year the repeal of the Hyde Amendment has been included in the platform of a major political party. (It’s part of the Democratic platform.)
“Even if we didn’t win it, it was a really important thing,” Sterns, who had worked on the case with the Center for Constitutional Rights, told me before turning to the 2016 election. “And it’s hard not to think about it given the timing of this [anniversary of Hyde]. It’s really important for people to understand the way and the which the Supreme Court affects people’s lives. In so many aspects of people’s lives the court really, really matters. And it matters for generations.”