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Harris v. Mcrae


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448 U.S. 297 (1980), argued 21 Apr. 1980, decided 30 June 1980 by vote of 5 to 4; Stewart for the Court, Brennan, joined by Marshall and Blackmun, and Stevens in dissent. Harris upheld the constitutionality of the Hyde Amendment, a law that barred the use of federal Medicaid funds for abortions except where the life of the mother would be endangered or in cases of rape or incest. The Court held that the right to choose abortion protected by Roe v. Wade (1973) did not require the government to subsidize that choice. According to the Court, Roe meant that the government could not put obstacles in the path of choice. The inability of poor women to purchase medical services, including abortions, without government assistance, said the Court, was not an obstacle the government had created. The dissenters argued that the government did burden the woman's choice of abortion as against childbirth by providing medical assistance when she chose the latter but not when she chose the former.

Critics of Harris argue that the only reason the government has for refusing to pay for abortions is that it believes that abortions are immoral, a belief that under Roe v. Wade may not be the basis for government action, and that the decision sanctions a two-class system of the availability of abortions. Defenders reply that abortion is not one of those situations, rare in our society, in which the government has the duty to alleviate the burdens, which are many, that result from the unequal distribution of wealth in a market-oriented economy.

Mark V. Tushnet

Subjects: Law.


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