By defining abortion as an individual privacy right under the liberty clause of the Fourteenth Amendment, the Supreme Court in Roe v. Wade managed to evade the more complicated social realities that may prevent women from securing safe abortions, regardless of their formal "rights." ("Pro-choice" advocates effect the same evasion when they define "abortion rights" as an individual matter, one of "conscience" rather than socially determined need.) The right of privacy is a "shaky" constitutional basis for women’s abortion rights insofar as it lends itself to interpretations favoring the professional and proprietary claims of doctors.26 Another reason why the right of privacy is a dubious principle for asserting women’s need for reproductive freedom is that the principle asserts the personal and individual character of pregnancy and childbearing; it provides no basis for demanding that women, as a "class," are entitled to abortion services and that denial of access to those services is prejudicial to the legitimate interests and needs of women collectively.27 In turn, the denial of a collective or social basis of women’s need and right of access to abortion, its portrayal as a "private choice" rather than a condition of a decent life, serves to perpetuate class divisions among women. In a class — divided society, leaving individuals to their own private resources to secure a right means inevitably to exclude those who lack the resources.
The constitutional doctrine used to show that some group, or "class," has been treated unfairly is the equal protection clause of the Fifth and Fourteenth Amendments. But, incredibly, the Supreme Court, in its spate of decisions affecting women’s rights, has not seen fit to consider women a "suspect class" for purposes of "equal protection"—for purposes of showing that a law or policy discriminates against women without any "compelling state interest" that would justify such discrimination. (Racial groups and illegitimate children have been accorded such status, but not women nor, for that matter, the poor.28) Yet, logically, it would seem that an "equal protection" argument would be necessary, within the framework of American constitutional law, to make the case that abortion rights must be made available to all women equally and not simply to "individuals" abstractly.
By early 1977, the political pendulum had swung to the right. The women’s movement was fragmented and on the defensive; the "right — to-life" movement was engaged in a well-funded and well-organized political offensive; and Congress was embroiled in debate over provisions of the Hyde Amendment, which would curtail federal financing of abortions. The Supreme Court responded accordingly. In June it issued three decisions related to state Medicaid programs to reimburse abortions: Beal v. Doe, Maher v. Roe, and Poelker v. Doe.29 Essentially, it set the stage for Harris v. McRae and the denial of an "equal protection" basis for guaranteeing that poor women would have the same access to abortion services as middle-class women. The linchpin of its rulings was the distinction— "revived with a vengeance/’ as Willis put it—between "medically necessary" and "nontherapeutic" abortions. Pennsylvania was justified, said the Court, in excluding "nontherapeutic abortions from Medicaid coverage"; this did not constitute a denial of equal protection to Medicaid — dependent women because of the state’s "valid and important interest in encouraging childbirth" and in "protecting the potentiality of human life."
What, then, had happened to the woman’s "fundamental right," in consultation with her doctor, to choose abortion for any reason without state interference, at least in the first trimester of pregnancy? By 1977 the Court was apparently denying the existence of such a right, instead incanting the state’s "valid and important interest," its "significant" interest, its "unquestionably strong and legitimate interest" in childbirth30 in a litany that all but drowned out the woman’s and the physician’s right of decision as laid down in Roe.
The Court distinguished its 1977 rulings from Roe v. Wade by an extraordinary piece of verbal agility. The right to choose became, instead, the "freedom to decide whether to terminate her pregnancy" free from "unduly burdensome interference" by the state. There is no such "interference," the Court held in Maher, when the state refuses to allocate public funds to support abortions for poor women or implements policy "favoring childbirth over abortion." Such policy is different from statutes that impose "obstacles," such as criminal penalties; the state is under no obligation to provide women with the means necessary to realize their constitutionally protected rights, only to refrain from putting any "obstacles" in their "path":
An indigent woman who desires an abortion suffers no disadvantage as a consequence of Connecticut’s decision to fund childbirth; she continues as before to he dependent on private sources for the service she desires. The State may have made childbirth a more attractive alternative, thereby influencing the woman’s decision, but it has imposed no restriction on access to abortions that was not already there. The indigency that may make it difficult— and in some cases, perhaps, impossible—for some women to have abortions is neither created nor in any way affected by the Connecticut regulations.31
Of course, the Court’s reasoning here is built on a pile of misconceptions: that state policy "favors childbirth" for indigent women, when in fact it favors sterilization (for which Medicaid funds 90 percent of the costs); that there is "no discrimination" because neither poor women nor poverty in general constitute a "suspect class… so recognized by our cases";32 and that "an indigent woman who desires an abortion" could always obtain "private sources for the services she desires." The legalistic burden/benefit distinction distorts reality, conditioning a woman’s right in a way that virtually dissolves it for poor women. Although "medical necessity" still seemed to be the cutting edge of abortion politics, the profound class bias exhibited in the 1977 decisions demonstrates that the Supreme Court was merely keeping pace with the regressive currents that were sweeping the country.
Some federal judges resisted the reactionary political trends. Most remarkable among these was the late John F. Dooling of the federal district court in New York, who in McRae v. Califano heard and rejected the government’s arguments for the constitutionality of the Hyde Amendment. While Judge Dooling’s expansive understanding of medically necessary abortions seems courageous, the content of the decision reflects the tireless work of feminist lawyers in the case, trying to stretch existing legal constraints to meet the needs of women for abortion.33
On one level, Dooling’s opinion was framed in terms of the amendment’s exclusion of medically necessary abortions. The Hyde Amendment, he concluded, was a denial of a poor woman’s statutory rights under the Social Security Act (Title XIX) and her constitutional rights under the First and Fifth Amendments—but viewed in both cases as medical entitlements exercised under medical auspices:
Since the recommended abortion is medically necessary to safeguard the pregnant woman’s health, and her basic statutory entitlement is to appropriate medical assistance, the disentitlement to medicaid assistance impinges directly on the woman’s right to decide, in consultation with her physician and in reliance on his judgement to terminate her pregnancy in order to preserve her health.
Even Judge Dooling’s most ringing statement of women’s rights was linked to a therapeutic situation:
A woman’s conscientious decision, in consultation with her physician, to terminate her pregnancy because that is medically necessary to her health, is an exercise of the most fundamental of rights, nearly allied to her right to be. . . ,34
On the other hand, Judge Dooling’s decision was solidly rooted in reality, especially the serious health consequences of pregnancy. Extensive testimony on the health impact of the denial of Medicaid funds for abortion had determined that poor women—a disproportionate number of whom are minority women—were left with the unviable "choices" of going through with their unwanted or dangerous pregnancies, resorting to illegal or self-induced abortions, or seeking practically nonexistent alternative services, all of which result in serious complications or risky delays. Dooling’s summary strongly emphasized the health risks involved in delay, particularly for poor women who are mainly dependent on large public or teaching hospitals and "as a class are not well served medically."35 Also important is the broad meaning Dooling gives to the concept of health. "Medical" indications, he suggests, cannot be separated from a wide spectrum of conditions including psychological and emotional factors, age, family situation, the woman’s attitude toward the pregnancy, her general health and nutritional level, and poverty itself, which "takes its toll on pregnant women’s general health and in the heightening of the health risks of pregnancy."36 "The unwanted pregnancy [never occurs] as an abstraction or in isolation from the woman’s total life circumstance. . . . "31 At the same time, the copious evidence concerning the health risks and complications of pregnancy, especially those associated with poverty, youth, or chronic disease, on which Dooling’s decision largely turned, reminds us that pregnancy is for many, perhaps for most women, a profoundly health-disrupting condition.
One final point should be stressed about Judge Dooling’s decision in McRae: It placed the woman’s health needs above any "state interests" in "preserving the fetus." No such interests could "justify withdrawing medical assistance," even "in the extremely rare third trimester case."38 Dooling’s decision against the Hyde Amendment grew out of this basic set of priorities and his perception, stated early in the opinion, that a "fetal rights" position and a "woman’s rights" position on abortion are fundamentally, unalterably "irreconcilable." The Hyde Amendment could have no other purpose than "to prefer the life of the fetus over the health interests of the pregnant woman," since the only other "rationally related" purpose, "encouraging normal childbirth," was never discussed in the congressional debates, nor does it exist in federal policy regarding the poor. The Hyde Amendment, then, discriminated against poor women, subordinating their health needs to the survival of the fetus:
The relevance of the woman’s poverty is that medicaid is her health care reliance, and when she is excluded from receiving under medicaid the therapeutic abortion that is to her a medical necessity, there can be no assurance that she will receive the medically necessary abortion elsewhere. She is effectively denied assurance of a basic necessity of life.39
In reviewing and reversing Dooling’s decision in McRae, the Supreme Court saw it differently, rejecting Dooling’s fundamental principles: that a woman’s health must take priority over fetal survival and that health care itself must be considered "a basic necessity of life." We need to look at the Court’s reasoning with regard to each of these principles and to review the political reasons why their rejection is coupled.
Harris v. McRae strikes two blows at once. It attacks the idea that women’s right to abortion is so fundamental that no woman should be denied it and attacks the idea that decent health care is a basic human need that the society should meet regardless of ability to pay. No matter how one reads it, and in spite of the loopholes in Roe v. Wade, it is impossible to reconcile the position the Court took in 1980 with its opinion in 1973. There, a distinction was drawn between the early stages of pregnancy and "viability." Before that point, the Court held, the only "compelling interest" the state might justifiably claim for interfering in the abortion decision was to "protect the woman’s health"; after that point, it might claim a "legitimate interest" in preserving the "potentiality of human life," except when abortion "is necessary to preserve the life or health of the mother." In Harris v. McRae, the "viability" distinction gets dropped, the exception to protect women’s health gets dropped, and the Court upholds the Hyde Amendment’s curtailment of federally funded abortions at any stage of pregnancy, for any reason other than to save a woman’s life.40
There is also a subtle but politically significant shift in the Court’s language regarding the relative weight of the woman’s health versus the survival of the fetus. In 1973, the "compelling interest" that the Court suggested the state might claim in the third trimester of pregnancy only was "the potentiality of human life." In 1980, a new verbal formulation is introduced: "Abortion is inherently different from other medical procedures, because no other procedure involves the purposeful termination of a potential life/’*1 This formulation marks a significant departure from the Court’s previous language concerning this politically sensitive issue. It is the closest the Court has come to recognizing the doctrine of fetal "personhood." At the least, the Court’s majority is now declaring that the fetus has priority over a woman’s health—a total retreat from Roe v. Wade.
There was, of course, a technical difference between Roe and McRae. The former involved removing a criminal prohibition, whereas the latter involved the denial of federal funding under Medicaid. But the only way the Court could consider this difference decisive was by flatly denying the truth that Judge Dooling underscored: Without Medicaid funding, many poor women are left with no abortions, for "Medicaid is [their] health care reliance."42 The Court’s majority opinion is based almost entirely on its reasoning in Maher; it rests on the distinction between a "governmental obstacle" or "unduly burdensome interference," on the one hand (e. g., criminal penalties), and governmental "benefit," or subsidization, on the other. Acknowledging that the Hyde Amendment (unlike the regulations in Maher) curtails payment for medically necessary abortions and that access to such abortions at all stages of pregnancy is protected by "the constitutional liberty identified in Wade," the Court nevertheless holds that even in the case of medically necessary procedures, a "constitutional right" does not entitle anyone to the material means needed to exercise that right in practice:
… it simply 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. The reason why was explained in Maher: 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.43
Strange as it may seem, the Court is not denying that the Hyde Amendment and its own decision result in discrimination against poor women. Rather, it is saying that such discrimination is not in violation of the Constitution’s equal protection clause because (1) it is "related to a rational, constitutionally permissible purpose" (i. e., the protection of the fetus), which the Court now regards as sufficiently "rational" and "compelling" to justify subordinating poor women’s health and well-being; and (2) the Constitution does not protect against such discrimination anyway, since neither poor people nor women are a "suspect class." Repeating its position in Maher; as well as previous "social welfare" cases, the Court delivers the judicial mechanism for disregarding class, or economic differences, as a relevant category in the American administration of "justice":
An indigent woman desiring an abortion does not come within the limited category of disadvantaged classes so recognized by our cases. Nor does the fact that the impact of the regulation falls upon those who cannot pay lead to a different conclusion. In a sense, every denial of welfare to an indigent creates a wealth classification as compared to nonindigents who are able to pay for the desired goods or services. But this Court has never held that financial need alone identifies a suspect class for purposes of equal protection analysis.44
The illogical and unfair notion that the state is obligated to uphold certain rights but not to provide the material means to make them real (we didn’t create poverty, we’re not responsible) is in perfect accord with the neoconservatives’ and the Reagan administration’s policies against social welfare. Indeed, the idea that the state is socially responsible, through its public agencies, to provide not only abstract formal rights but real, concrete services, universally accessible and at uniformly high standards, implies a total transformation of the social system. Yet the concept of "basic human needs," or "basic necessities of life," and the state’s obligation to meet them is not alien to Supreme Court decisions.
It has been applied in cases analogous to Medicaid abortion cases, most effectively in a case decided the same year as Roe v. Wade, one that underlines the political nature of the Court’s twists and turns, especially its most recent turn toward conservatism.
In Memorial Hospital v. Maricopa County,45 the Supreme Court confronted the issue of determining the "basic necessities of life" whose denial to particular groups constitutes an infringement of "equal protection of the laws." Expanding its previous judgment that access to "welfare aid upon which may depend the ability… to obtain the very means to subsist— food, shelter, and other necessities of life"—could not be denied in the absence of a "compelling state interest," the Court held that "medical care is as much a basic necessity of life to an indigent as welfare assistance." It therefore struck down a county residency requirement for nonemergency hospitalization.46 It is not a coincidence that this judicial doctrine of society’s responsibility to provide the "basic necessities of life" to the poor was developed in the late 1960s and early 1970s when there was an active left as well as a vocal welfare rights movement in this country, and the notion of social responsiveness to human needs had wide political legitimacy. While the Court refused to apply its ruling to poor people as a "suspect class," it presented a broad notion of health-care rights: Medical procedures need not be of an "emergency" (i. e., life and death) nature to qualify for constitutional protection; they need only be necessary "for the preservation of [a person’s] health and well being."47 Moreover, in a way that clearly influenced the health issues raised in McRae, the Court emphasized the serious risks to health and general well-being if treatment is delayed. It suggested that health, for purposes of constitutional protection, must be viewed as a continuum, a process, not a static category, which is intimately related to other material conditions in a person’s life: "The denial of medical care is all the more cruel in this context," it held, "falling as it does on indigents who are often without the means to obtain alternative treatment."48
Apparently, "cruelty" and lack of material alternatives were constitutionally relevant factors in 1973 but not in 1980. By 1981 in McRae, the lone conservative dissent of Justice Rehnquist in Maricopa had become the view of the majority: The state is not responsible for economic inequality; it has only to avoid creating "unduly burdensome obstacles" to the enjoyment of rights. Social welfare needs (e. g., reproductive health care) are a matter of "balancing competing interests" through "social policy," not of determing legal and social justice through the courts.49 Clearly, this reasoning might be extended to "de-fund" the entire Medicaid program or dissolve any social service legislatures have chosen by statute to confer and may by statute choose to take away. One of the Court’s messages in McRae is that the state is under no constitutional obligation to provide benefits necessary to make good the social welfare rights it
has bestowed (or to redress the social evils it has not created).50 Those benefits must come from the private sector if they are to come at all. Reestablishing the primacy of the private sector (the medical profession, the churches, the nuclear family), not "promoting childbirth," is the real meaning of the "compelling state interests" vaguely defined by the Court. Already in 1980, then, the Supreme Court had bent its earlier precedent to accommodate the new conservatism and in fact given antifeminist, antiwelfare politics the weight of law.