State governments continue to battle over abortion rights in the aftermath of the Supreme Court’s overturning of Roe v. Wade, with Michigan’s Board of Canvassers deadlocked on whether to include a midterm ballot measure to determine the future of abortion access in the state. On this week’s encore presentation of the September 2021 Now & Then episode “Abortion: Whose Choice?” Heather Cox Richardson and Joanne Freeman discussed the history of abortion access in the United States, from the suprising availability of abortion in the early Republic to the virulent attacks on abortion access following Roe. The legal back-and-forth over the constitutionality of the 1976 Hyde Amendment showcases the brutal ideological faultlines that continue to define abortion in America.
On September 30th, 1976, Illinois Representative Henry Hyde successfully pushed through a Department of Health, Education and Welfare (HEW) budget amendment limiting Medicaid funds for abortions except for those “medically necessary” for a woman–enumerated in the statue as when “the life of the mother would be endangered if the fetus were carried to term.”
Before the Hyde Amendment, the federal government offered financial assistance in 250,000 to 300,000 abortions each year, about ⅓ of all abortions performed in the nation.
The day after the Hyde Amendment passed, a 24-year-old Brooklyn woman named Cora McRae was denied Medicaid assistance for an abortion at a Planned Parenthood facility. McRae suffered from blood clots and varicose veins and her doctors had advised her to have an abortion.
McRae sued HEW, and on October 22nd, 1976, Judge John F. Dooling of the Eastern District of New York heard her case. Dooling was a 67-year-old Roman Catholic who sent each of his five children to parochial schools. A longtime Sullivan & Cromwell partner before his judicial appointment, he was legendarily bookish, often reading while he walked to and from work.
Dooling ruled in McRae’s favor. In his eyes, the Hyde Amendment was unconstitutional. McRae was able to receive Medicaid funding for her procedure. Dooling also granted McRae’s case class action status, so his injunction effectively stopped all enforcement of Hyde for ten months. The Judge was open about his concerns over Hyde’s potential damage: “The impact would be extraordinary and real and could well endanger the lives of the young poor who are most likely to take unwise actions and seek illegal abortions.”
Dooling’s decision bucked a trend – a day before his ruling, Judge John J. Sirica of the District Court in Washington D.C., famed for his role in adjudicating Watergate, had dismissed a similar suit from low-income women in the region.
During that reprieve, McRae joined a class action lawsuit against HEW with five other women across the country, who all joined under pseudonyms. All of the plaintiffs were between 15 and 25 years old, were on welfare, and had been denied funding assistance for abortions under Hyde.
The Supreme Court instructed Dooling to rehear the case in light of its new abortion ruling in Maher v. Roe, which gave states the option to avoid paying for “non-therapeutic” abortions.
The enlarged case returned to Dooling’s courtroom in July 1977 and became a marathon. Dooling heard 39 months of testimony. He interacted with 19 lawyers. He saw 800 exhibits. He spent another 13 months in deliberations.
The lengthiness resulted in part from the increasing acknowledgement of the Hyde Amendment’s painful importance. After the Supreme Court’s invalidation of Dooling’s initial ruling, press reports of illegal abortions increased.
One chief courtroom attorney for McRae and her fellow plaintiffs was 33-year-old Rhonda Copelon of the Center for Constitutional Rights. Copelon was concurrently working on a landmark international human rights case, Filártiga v. Peña-Irala, concerning a 17-year-old boy in Asunción, Paraguay who was tortured to death by a police chief who then moved to Brooklyn–an successful quest to establish that victims of international human rights violations could seek recourse in American courts.
The other principal lawyer for McRae was the 30-year-old American Civil Liberties Union attorney Janet Benshoof, who would go on to lead the organization’s reproductive freedom project, shepherding FDA approval of the “morning after” pill and playing a major public role in the famed 1993 Planned Parenthood v. Casey Supreme Court case.
HEW lawyers argued in defense of the Hyde Amendment. A third party, A. Lawrence Washburn, represented “the unborn.” An activist anti-abortion attorney from New York, Washburn had successfully fought to represent conceptual infants in 1971 and routinely appeared in high-profile abortion cases.
Capelon and Benshoof focused on freedom of conscience as one of their clients, calling representatives from the United Methodist Women to talk about their group’s belief in “responsible parenthood.”
The lawyers called a bevy of witnesses who spoke to the centrality of organized religious groups in the anti-abortion movement. Mary Peek, for example, was a feminist leader who had run in a legislative primary in Minnesota in 1972, only to see religious groups mobilize fiercely against her. Peek called the attacks “a holy war, a crusade,” and said that her opponents’ zeal had “put a crazy look in their eye.”
“Would a powerful concern for human life put that look in their eye?” Mr. Washburn pointedly asked in his cross-examination.
Despite such moments of relative tension, the New York Times reported in March 1978 that the general tenor was not one of high drama, but rather a decorous atmosphere managed by a calm Judge Dooling: “Although the examinations and cross-examinations repeatedly touch on the most profound religious and theological differences, the low-keyed courtroom proceedings hardly suggest anything so momentous as, for example, a Scopes trial.”
Finally, on January 15th, 1980, a week after the seventh anniversary of the Roe v. Wade Supreme Court decision, Dooling delivered a staggeringly thorough 642-page opinion. True to form, he took apart Hyde step by step.
Dooling stuck with his initial ruling but added far more in-depth constitutional heft to his argument: The Hyde Amendment, he reasoned, violated both the equal protection clause of the Fifth Amendment and the religious freedom clause of the First Amendment.
Much of Dooling’s Fifth Amendment analysis followed Capelon and Benshoof’s arguments that the term “medically necessary,” was exceedingly broad and included maternal and infant mental health and physical pain.
In his First Amendment analysis, Dooling agreed with the plaintiffs’ lawyers that women should be permitted to follow their own religious precepts, whether for or against abortion. Ultimately, he argued that the only appropriate ruling–given the sheer level of disagreement on the abortion issue–was to protect the liberty of those seeking reproductive care.
“The irreconcilable conflict of deeply and widely held views on this issue of individual conscience excludes any legislative intervention except that which protects each individual’s freedom of conscientious decision and conscientious nonparticipation,” Dooling ruled.
Upon his ruling, the New York Times asked Dooling how he squared his own Roman Catholicism with his decision. “’This doesn’t have to do with what I think about abortion or what the church thinks about abortion,” Dooling responded. “It has to do with the validity in civil law of restrictions on the funding for abortion, in light of decisions of the Supreme Court.”
“I hope I got it right,” Dooling added after a pause.
“It is a landmark for women, for the poor, for liberty and for the Constitution,” Copelon said after the ruling.
Gerald Bodell, the attorney for Hyde and for his ally, North Carolina Senator Jesse Helms — who both asked to become defendants in the case before its appeal to the Supreme Court – defiantly predicted an overturn: “This decision goes beyond the scope of the Supreme Court decision by bringing in extraneous issue, such as religion…I’m confident we’ll win in the Supreme Court because he went too far.”
Dooling ordered the funds to begin flowing on February 15th, 1980, but both the Carter administration and abortion opponents both appealed to the Supreme Court for a stay until the Justices could rule on the merits of the case.
The Court spoke quickly. On June 30th, 1980, the Justices ruled 5-4 that neither federal or state governments were compelled to assist in funding abortions for low-income women. Judge Dooling was overruled.
Justice Potter Stewart wrote the majority opinion, arguing that the Hyde Amendment was a valid legal incentive toward having children: “By encouraging childbirth except in the most urgent circumstances, [the amendment] is rationally related to the legitimate governmental objective of protecting potential life.”
Stewart, however, also punted to some degree, suggesting that the Supreme Court was not the appropriate venue to decide the morality of abortion: “When an issue involves policy choices as sensitive as those implicated here, the appropriate forum for their resolution in a democracy is the legislature.” Congress, of course, had already passed the Amendment.
“Justice Stewart may have disclaimed that the Court was deciding whether the Hyde Amendment is ‘wise social policy,’’ but as far as Medicaid funding for abortion goes, it is now the only social policy we have,” Linda Greenhouse editorialized in the New York Times.
The dissenters–Justices Blackmun, Brennan, Stevens, and Marshall – each spoke scathingly of the majority decision.
Justice Brennan wrote in his dissent that the Hyde Amendment “plainly intrudes upon this constitutionally protected decision, for both by design and in effect it serves to coerce indigent pregnant women to have children that they would otherwise elect not to have.”
Justice Marshall was even blunter. He wrote that impoverished women in a post-Hyde world “must resort to back-alley butchers, attempt to induce an abortion themselves by crude and dangerous methods or suffer the serious medical consequences of attempting to carry the fetus to term.”
The Hyde Amendment remains intact today. In March of this year, the Amendment was tacked onto the federal budget and passed with flying colors. Now, in a post-Roe landscape that will disproportionately affect lower-income Americans, the impact stemming from the Supreme Court’s rollback of Judge Dooling’s ruling continues to echo.
For more on the abortion landscape of the late 1970s, read Mary Ziegler’s 2015 After Roe: The Lost History of the Abortion Debate.
And head to the Twitter account of Now & Then Editorial Producer David Kurlander for supplemental archival threads on each Time Machine piece: @DavidKurlander.
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Catch up on some recent Time Machine’s deep dives into history:
- ‘Widespread Corporate Freeloading’: The Contract with America and the Debate Over the Corporate Alternative Minimum Tax
- ‘No Estimate Can Be Made’: The 1877 Patent Office Fire and the Fate of Federal Record-Keeping
- ‘The Sole Source of Nutrients’: The Syntex Scandal and Federal Regulation of Baby Formula
