September 30 marks the fortieth anniversary of the passage of the Hyde Amendment, a provision that has drawn a line between rich and poor when it comes to the constitutionally protected right to abortion.[1] Named after its main proponent, Rep. Henry Hyde, the Hyde Amendment bans federal Medicaid dollars from paying for abortion services in almost all cases.[2] The law’s practical effect means that women with financial resources have the right to choose when and whether to become parents, while women in poverty are left with a right in name only. If a low-income woman cannot afford the cost of an abortion procedure, she is denied a meaningful choice about whether to carry a pregnancy to term.

Medicaid is a publicly funded insurance program designed to meet the health needs of those who cannot afford medical care.[3] Yet, in Harris v. McRae, the Supreme Court held that Congress could exclude medically necessary abortion services from the Medicaid program under the Hyde Amendment.[4]According to the Court, this categorical denial of health services did not violate the Constitution because the freedom to choose does not come with “a constitutional entitlement to the financial resources to avail [one]self of the full range of protected choices.”[5]  It reasoned that “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. Indigency falls in the latter category.”[6]

Yet, in his dissent, Justice Marshall readily deciphered the amendment’s design—“to deprive poor and minority women of the constitutional right to choose abortion.”[7] In fact, the government had created an obstacle to a women’s right to choose, an obstacle which poor women had not faced until the imposition of the Hyde Amendment. The Medicaid program was established to cover the full range of an individual’s health needs, and this included abortion care once it was legalized.[8] Indeed, from 1973 until 1980 when the Hyde Amendment took effect, Medicaid paid for roughly 300,000 abortions annually.[9]  But post-Hyde, that number plummeted to almost zero. (In 2011, for example, federal Medicaid dollars funded only 331 abortion procedures.[10]) There is little doubt about this legislative purpose when the amendment’s namesake said of his proposal: “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.” [11]

As the targets of Hyde’s anti-abortion animus, Medicaid-eligible women are often delayed in obtaining abortion services as they spend weeks or even months cobbling together funding. Low-income women take up to three weeks longer than other women to obtain an abortion.[12] And those who manage to come up with the needed funds often do so by sacrificing other necessities such as food or utilities.[13]

What’s worse, the Hyde Amendment denies some women the right to choose altogether. Cost-induced delays can force women to carry their pregnancies to the cusp of the legal limit for abortion; consequently, some women cannot obtain an abortion at all. For example, a 2011 study followed patients who were turned away from abortion clinics because their pregnancies were too far advanced for an abortion to be performed legally under state law.[14] Fifty-eight percent of these women reported that their struggle to raise funds had delayed their seeking care.[15] Of those patients who then considered traveling elsewhere for the procedure but instead carried to term, 85 percent cited expense of the procedure and logistical costs as a primary reason for continuing their pregnancies.[16]

Ultimately, one in four women affected by the Hyde Amendment who seeks an abortion is unable to obtain one.[17]  So although the federal government may not have directly produced that woman’s poverty, its Medicaid funding ban now stands as the immediate cause of her inability to exercise her right to choose.

Perhaps it’s time to revisit the Court’s reasoning in Harris, because the Hyde Amendment sure looks like an obstacle of the government’s own creation.

[1] Pub. L. No. 94-439, § 209, 90 Stat. 1434 (1976).

[2]  The Hyde Amendment is not codified in permanent law but, rather, is renewed annually through an appropriations rider. See, e.g., Pub. L. No. 114-113 , §§ 506, 507, 129 Stat. 2649 (2015).

[3] Social Security Amendments of 1965, Pub. L. No. 89–97, § 1905, 79 Stat. 286 (describing the purpose of the Medicaid program as paying for “inpatient hospital services[,] …outpatient hospital services[,]… [and] physicians’ services” to those “whose income and resources are insufficient to meet all of such cost”).

[4] Harris v. McRae, 448 U.S. 297 (1980).

[5] Id.at 318.

[6] Id. at 316.

[7] Id. at 344 (Marshall, J. dissenting).

[8]  Social Security Amendments of 1965, Pub. L. No. 89–97, § 1905, 79 Stat. 286 (listing “inpatient hospital services[,] …outpatient hospital services[,]… [and] physicians’ services” as within the scope of Medicaid coverage, all categories which encompass abortion care).

[9] Lesley Oelsner, Court Rules States May Deny Medicaid for Some Abortions, N.Y. Times, June 21, 1977, at A1, http://www.nytimes.com/1977/06/21/archives/court-rules-states-may-deny-medicaid-for-some-abortions-elective.html?_r=0.

[10]  Adam Sonfield & Rachel Benson Gold, Guttmacher Inst., Public Funding for Family Planning, Sterilization and Abortion Services, FY 1980–2010, 18 tbl.7 (2012) http://www.guttmacher.org/sites/default/files/report_pdf/public-funding-fp-2010.pdf.

[11] 123 Cong. Rec. 19, 700 (1977) (statement of Rep. Henry Hyde).

[12]Stanley Henshaw, et al., Guttmacher Inst.,  Restrictions on Medicaid Funding for Abortions: A Literature Review 1, 33, 38 (2009) https://www.guttmacher.org/sites/default/files/report_pdf/medicaidlitreview.pdf.

[13] Nat’l Network of Abortion Funds, Abortion Funding: A Matter of Justice 8 https://fundabortionnow.org/sites/default/files/national_network_of_abortion_funds_-_abortion_funding_a_matter_of_justice.pdf (2005) (describing patients’ “postponing bills, and even skimping on food and other basic necessities for themselves”); see also Nat’l Network of Abortion Funds, How can I find all the money I need?, Fund Abortion Now, https://fundabortionnow.org/get-help/financial-counseling (last visited Sept. 18, 2016) (suggesting negotiating with a utility provider not to cut off heat for non-payment, selling one’s furniture and personal belongings, and visiting foodbanks if the grocery budget is depleted by medical costs).

[14] Ushma Upadhyay et al., Denial of abortion because of provider gestational age limits in the United States, 104(9) Am. J. Pub. Health 1687–94 (2014) http://www.ncbi.nlm.nih.gov/pmc/articles/PMC4151926/pdf/AJPH.2013.301378.pdf.

[15] Id. at 1691 fig.1.

[16] Id. at 1689.

[17] Heather Boonstra, Abortion in the Lives of Women Struggling Financially: Why Insurance Coverage Matters, 19 Guttmacher Pol’y Rev. 46, 52 (2016), https://www.guttmacher.org/sites/default/files/article_files/gpr1904616_0.pdf.