Sunday, June 13, 2010

The Abortion Cases Part Five

Harris v. McRae launched a Constitutional challenge to Title XIX asking whether it violated the right to privacy, the Due Process Clause of the Fifth Amendment, or the Religion Clauses of the First Amendment.
Associate Justice Potter Stewart

Associate Justice Potter Stewart delivered the opinion for the Court's 5 to 4 majority in a case that brought a direct challenge to the Hyde Amendment. That amendment provides that no federal dollars will be spent to fund abortions.

Justice Stewarts opinion said Title XIX does not require a participating State to pay for those medically necessary abortions for which federal reimbursement is unavailable under the Hyde Amendment
Henry Hyde, author of the Hyde Amendment

The funding restrictions of the Hyde Amendment do not impinge on the "liberty" protected by the Due Process Clause of the Fifth Amendment held in Roe v. Wade, to include the freedom of a woman to decide whether to terminate a pregnancy.

The Hyde Amendment places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy, but rather, by means of unequal subsidization of abortion and other medical services, encourages alternative activity deemed in the public interest. Cf. Maher v. Roe.

Regardless of whether the freedom of a woman to choose to terminate her pregnancy for health reasons lies at the core or the periphery of the due process liberty recognized in Wade, supra, it does not follow that a woman's freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices. Although government may not place obstacles in the path of a woman's exercise of her freedom of choice, it need not remove those not of its own creation, and indigency falls within the latter category.

Although Congress has opted to subsidize medically necessary services generally, but not certain medically necessary abortions, the fact remains that the Hyde Amendment leaves an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all.

Nor does the Hyde Amendment violate the Establishment Clause of the First Amendment. The fact that the funding restrictions in the Hyde Amendment may coincide with the religious tenets of the Roman Catholic Church does not, without more, contravene that Clause.

Appellees lack standing to raise a challenge to the Hyde Amendment under the Free Exercise Clause of the First Amendment. The named appellees consisting of indigent pregnant women suing on behalf of other women similarly situated lack such standing because none alleged, much less proved, that she sought an abortion under compulsion of religious belief.

The Hyde Amendment does not violate the equal protection component of the Due Process Clause of the Fifth Amendment.

Statutory analysis begins with a presumption of constitutional validity where the statutory classification does not directly impinge on a right or liberty protected by the Constitution. That presumption quickly fades if the classification is predicated on criteria that are "suspect," the Hyde Amendment is not predicated on a constitutionally suspect classification. Maher v. Roe, supra. Although the impact of the Amendment falls on the indigent, that fact does not itself render the funding restrictions constitutionally invalid, for poverty, standing alone, is not a suspect classification.

Where, as here, Congress has neither invaded a substantive constitutional right or freedom nor enacted legislation that purposefully operates to the detriment of a suspect class, the only requirement of equal protection is that congressional action be rationally related to a legitimate governmental interest. The Hyde Amendment satisfies that standard, since, by encouraging childbirth except in the most urgent circumstances, it is rationally related to the legitimate governmental objective of protecting potential life.

Harris v. McRae was decided in 1980.

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