Emily Gillingham, Resident Blogger (’15, Michigan State University College of Law)
The battleground of the Hyde Amendment is Medicaid. Despite the rhetoric, this isn’t about not wanting to pay for abortion with taxpayer money because it’s (sometimes) an elective procedure, (sometimes) borne of the woman’s own choices. Think about it- from a fiscal conservative point of view, there are a lot of good reasons why abortion should be accessible to all women who rely on the government for medical care and want to have an abortion: it is less costly than pregnancy, it is safer than pregnancy, and, crass as it sounds, it does avoid government expenses on another human being.
No, the Hyde Amendment was and continues to be every anti-choice lawmaker collectively throwing up their hands and saying, “Well, we can’t ban abortion entirely because of those pesky constitutional rights. [sarcastic jazz hands] And we can’t stop middle and upper class women from spending their own money to exercise that right. But we can stop poor women from accessing abortion by blocking Medicaid coverage for it.”
SCOTUS found the Hyde Amendment constitutional in Harris v. McRae, but the bright side is that Justice Thurgood Marshall called their crap in one of the most glorious dissents ever penned. He wrote that “[t]he 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.”
So how do women on Medicaid access abortion care? Well, some women find help through a local abortion fund. Some women live in the District of Columbia or one of 32 other states that cover abortion when the woman became pregnant as a result of rape or incest, or the woman’s life is in danger. And some women live in one of the 17 states that fund all or most medically necessary abortions- and this is where it gets interesting. Of those 17 states, four offer abortion care voluntarily, and the other 13 do so pursuant to a court order.
Yes, courts in 13 states have concluded that abortion care for low-income women should be funded on the same terms as other pregnancy-related and general medical care. The ACLU’s website has a sweet map showing how the laws shake out, with citations to the cases that required those 13 states to cover abortion care. The cases follow the basic logic that 1) if these women had $400 to drop on an abortion, they wouldn’t be on Medicaid; 2) if the state doesn’t cover this portion of their medical care, they are effectively denying them their rights under Roe v. Wade; 3) the state has no good reason to do so, so 4) the state has to cover abortion under certain circumstances. These opinions are all awesome and I want to be BFFs with the judges who wrote them. Read one if you can find time!