Legal Abortion Is a Fundamental Right -- Why Do We Often Forget That?

The debate about abortion coverage in health insurance reform is the latest disappointing moment in the efforts of feminists to ensure that the social transformation Roe promised women was equally available to all women, including those who were dependent on the government for health care. To hear President Obama call the Hyde Amendment, which prohibits the use of federal Medicaid funds for abortion, an “American tradition” is only the most recent of many misstatements about what a fundamental right entails. It seems that prochoice legislators, following the president’s lead, now explicitly consider that throwing women who cannot afford to pay for their own abortions under the bus is a reasonable compromise between those who favor and those who oppose legal abortion and a sensible concession to those who think abortion is immoral.

The compromise is the logical outcome of one of Roe’s essential weaknesses: the fact that the constitutional right to abortion was based on the principle of privacy rather than non discrimination. A private right, even a fundamental one, did not, according to the Supreme Court, require the state to pay for its implementation.

The Hyde Amendment, which was introduced in Congress starting in 1973 and passed for the first time in 1976, was the first and most important defeat the abortion rights movement sustained—and it embodied the profound disapproval and stigmatization of abortion that no other restriction on the right to choose represents. When affirmed by the Supreme Court in 1980 in the Harris v. McRae case, it sent the message that abortion was immoral and that no taxpayer should be obliged to pay for something they think is immoral.

It first passed at a time that anti-abortion forces were pursuing two lines of attack against legal abortion—an effort to pass a human life amendment to the Constitution, which would make all abortions illegal, and an incremental strategy with the Hyde Amendment the first effort to chip away at Roe. The young prochoice movement realized that its naïve assumption that Roe would end the debate about abortion was wrong and that it needed to mobilize both grass roots and elite support for protecting abortion rights. The tactical question was whether the threat to poor women’s access in Hyde or the threat to all women’s access in the human life amendment would be the best organizing vehicle.

Based substantially on the advice of direct mail and political consultants, the decision was made to put efforts to overturn Hyde on the back burner and go against the less real threat of a constitutional amendment that would ban all abortions. The advice was clear and classist. It accepted the racism that lay buried in middle class hostility to poor women, “welfare queens” and the “sexually promiscuous”—all those who might be expected to look to Medicaid to pay for abortions—whom the rest of us should not support.

Not concentrating on overturning Hyde was arguably the worst decision the mainstream choice movement made. No effort at a constitutional amendment ever got off the ground, but the largely unchallenged Hyde Amendment emboldened anti-abortion groups to pick off powerless constituencies one at a time. From poor women they went on to adolescents and secured “parental consent and notification” laws.

Since 1980, choice based federal legislative strategies have focused on everything but restoring federal funding for abortion. The movement took on far more unpopular issues such as the ban on what was dubbed “partial birth” abortions and still could not come up with an all-out, well-funded effort to overturn Hyde. Starting in 1989, versions of a “Freedom of Choice Act” to “codify Roe” were initiated; none of them included federal funding for women on Medicaid.