The First Assault on Abortion Rights

Today marks the 37^th anniversary of the Hyde Amendment, the first, and perhaps cruelest, assault on abortion rights in America. On September 30, 1976, Congress attached a rider to the federal appropriations bill virtually eliminating abortion from the care available under the medical insurance program for the poor, Medicaid. Congress has attached a version of this rider every year, now known by the name of its author, rabidly anti-abortion representative Henry Hyde.

The unfairness of making fundamental constitutional rights available only to the wealthy was captured in a political cartoon I had taped to the wall of my office at the ACLU while litigating similar cuts in Medi-Cal funding for abortion. It showed two panels, both with the same doctor holding a clipboard. The first was labeled “questions a poor women must answer to get an abortion” and showed the doctor asking a dizzying array of intimate questions (“Can you prove life endangerment? Were you raped? Did you have incest? Did you report it? When?”). The second panel was labeled “questions a rich woman must answer to get an abortion” and had a much smaller balloon over the doctor’s head: “Cash or charge?”

Coming just three years after Roe v. Wade, the Hyde Amendment took reproductive rights advocates by surprise, and many hoped that the Court that had declared a right to choose abortion by a 7-2 vote would strike down this new barrier to access. They were to be sorely disappointed when in 1980 the Court by a 5-4 vote said that because government doesn’t cause poverty (a proposition subject to debate), it has no obligation to help poor women exercise their rights. Roe, the Court said, was about a right to privacy—keeping the state out of the decision—and so women were on their own.

Today, only 15 states continue to fund abortion for poor women. With so many women struggling to make ends meet, the suffering this hole in our public insurance program causes is tragic. Women go hungry, delay the rent payments, and sell their children’s toys — desperate to pay for medical care to end unplanned pregnancies. They become caught in a cycle advocates call “chasing the fee:” scraping the money together for an abortion takes time, and by the time a woman has begged or borrowed some funds, it is later in her pregnancy and she needs a more complicated, riskier and more expensive abortion.

Thankfully, we have not witnessed this suffering in California. Our Supreme Court ruled that under the state Constitution, the state may not use its resources to coerce poor pregnant women into giving up their reproductive rights. The Court held that by continuing to cover prenatal care and childbirth, but not abortion, the government was funding only one state – favored reproductive option—but since the woman, not the government, has the right to decide what to do with her pregnancy, Medi-Cal must fund all pregnancy-related care equally. The discriminatory treatment of abortion funding, the Court ruled, violates the Constitution, just as it would if the government made public meeting spaces available for patriotic speeches but not dissents, or made public housing available for married but not unmarried couples. In an era when government controls many public benefits, it is important that it not use that authority to manipulate the way in which people exercise fundamental rights.

Unfortunately, the United States Supreme Court gave the green light to Congress to impose its moral orthodoxy on women too vulnerable economically to protect themselves. Congress didn’t stop there—it has virtually eliminated abortion coverage from all federally funded programs, including public employees, women in prison, women in the military and Peace Corps volunteers. But it is the poor women, dependent on public insurance through Medicaid, who most suffer from politicians’ manipulation of their health care.

After the United States Supreme Court upheld the Hyde Amendment against a constitutional challenge, then-President Jimmy Carter said, with a shrug, “life is unfair.” But it wasn’t life that was unfair, it was the government. By providing health benefits to very poor pregnant women only for childbirth, not abortion, the government literally makes them an offer they can’t refuse. It’s shameful that this unfairness has lasted 37 years.

Maggie Crosby is a staff attorney with the ACLU of Northern California.