INTRODUCTION

The Hyde Amendment, the law at the heart of Harris v. McRae, arguably represents the anti-abortion movement's most important victory since the U.S. Supreme Court held in Roe v. Wade that the Constitution protects a woman's right to choose abortion. Since September 1976, Congress has banned the use of federal dollars for the reimbursement of most abortion services under the Medicaid program. McRae matters most simply because the U.S. Supreme Court rejected a constitutional challenge to the Hyde Amendment, enabling the federal and state governments to ban funding for abortion. As Professor Leslie Griffin's opinion shows, McRae might have done even more damage to the cause of women's rights when the Court closed the door on Establishment Clause claims against abortion restrictions.

BACKGROUND

The story of Harris v. McRae began in the immediate aftermath of Roe v. Wade, when abortion opponents across the country gathered to respond to the U.S. Supreme Court's decision. From the beginning, the movement fixed its sights on a constitutional amendment banning abortion. The Hyde Amendment emerged from an equally important tactical response to Roe – one intended to limit access to the procedure as much as possible under the current law.

As Representative Henry Hyde of Illinois recognized, Medicaid played a vital part in the realization of the right to choose abortion. Created in 1965, Medicaid provided financial support to participating states to reimburse certain costs incurred in the treatment of needy patients. Because Medicaid operated as a cooperative federal-state program, some states had already banned the use of most abortion funding at the time Hyde pushed his proposal in Congress.

Just the same, Hyde understood the significance of a federal ban. Before 1976, Medicaid funded roughly 33 percent of all abortions. A study conducted in the late 1970s by Family Planning Perspectives found that, but for the Hyde Amendment, roughly 23 percent of women who carried a pregnancy to term would have made a different choice. On the day Congress enacted the initial version of the Hyde Amendment, Rhonda Copelon, Sylvia Law, and others – the attorneys for Cora McRae and those challenging the Hyde Amendment – filed suit. Americans United for Life, a group that increasingly embraced incremental restrictions on abortion, quickly sought to intervene and represent Representative Hyde and several congressional allies.