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Home > Document Library > Afterword: Liberals and Conservatives Abandon the Principles of the Founding > Harris v. McRae


Harris v. McRae
U.S. Supreme Court

Dissenting opinion by Thurgood Marshall
1980


[Against the Founders’ view, Marshall argues that a right has no value if one does not have the money to pay for the exercise of that right; this money should be provided by government. — TGW]

 

[By a 5-4 vote, the Supreme Court held in this case that the "Hyde Amendment" is constitutional. Under this law, the federal government would no longer pay for abortions for women on Medicaid (government health insurance for the poor). Part of Justice THURGOOD MARSHALL’s dissent follows:]

The consequences of today’s opinion—consequences to which the Court seems oblivious—are not difficult to predict. Pregnant women denied the funding necessary to procure abortions will be restricted to two alternatives. First, they can carry the fetus to term—even though that route may result in severe injury or death to the mother, the fetus, or both. If that course appears intolerable, they can resort to self-induced abortions or attempt to obtain illegal abortions—not because bearing a child would be inconvenient, but because it is necessary in order to protect their health. {Footnote: Of course, some poor women will attempt to raise the funds necessary to obtain a lawful abortion. A court recently found that those who were fortunate enough to do so had to resort to "not paying rent or utility bills, pawning household goods, diverting food and clothing money, or journeying to another state to obtain lower rates or fraudulently use a relative’s insurance policy…. [S]ome patients were driven to theft." Women’s Health Services, Inc. v. Maher, 482 F. Supp. 725.} The result will not be to protect what the Court describes as "the legitimate governmental objective of protecting potential life," but to ensure the destruction of both fetal and maternal life. "There is another world ’out there,’ the existence of which the Court …either chooses to ignore or fears to recognize." Beal v. Doe (BLACKMUN, J., dissenting). In my view, it is only by blinding itself to that other world that the Court can reach the result it announces today.

Ultimately, the result reached today may be traced to the Court’s unwillingness to apply the constraints of the Constitution to decisions involving the expenditure of governmental funds. In today’s decision …the Court suggests that a withholding of funding imposes no real obstacle to a woman deciding whether to exercise her constitutionally protected procreative choice, even though the Government is prepared to fund all other medically necessary expenses, including the expenses of childbirth. The Court perceives this result as simply a distinction between a "limitation on governmental power" and "an affirmative funding obligation." For a poor person attempting to exercise her "right" to freedom of choice, the difference is imperceptible. As my Brother BRENNAN has shown [in his] dissenting opinion, the differential distribution of incentives—which the Court concedes is present here, see ante at 325—can have precisely the same effect as an outright prohibition. It is no more sufficient an answer here than it was in Roe v. Wade to say that "’the appropriate forum’" for the resolution of sensitive policy choices is the legislature.

More than 35 years ago, Mr. Justice Jackson observed that the "task of translating the majestic generalities of the Bill of Rights …into concrete restraints on officials dealing with the problems of the twentieth century, is one to disturb self-confidence." West Virginia State Bd. of Education v. Barnette (1943). These constitutional principles, he observed for the Court, "grew in soil which also produced a philosophy that the individual[’s] …liberty was attainable through mere absence of governmental restraints." Those principles must be "transplant[ed] …to a soil in which the laissez-faire concept or principle of non-interference has withered at least as to economic affairs, and social advancements are increasingly sought through closer integration of society and through expanded and strengthened governmental controls."

In this case, the Federal Government has taken upon itself the burden of financing practically all medically necessary expenditures. One category of medically necessary expenditure has been singled out for exclusion, and the sole basis for the exclusion is a premise repudiated for purposes of constitutional law in Roe v. Wade. The consequence is a devastating impact on the lives and health of poor women. I do not believe that a Constitution committed to the equal protection of the laws can tolerate this result. I dissent.

[From U.S. Supreme Court Reports]





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