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Where do Morals and Politics Fit into Harris v. McRae?

The case of Harris v. McRae (1980) was filed by Cora McRae, a pregnant woman on Medicaid. In requesting for federal funding for her abortion through Medicaid, she came up against the Hyde Amendment, which was passed in 1976 to forbid federal funding of abortions except when the mother’s life was in danger. Federal funding later expanded to fund the abortion if the pregnancy was a result of rape or incest, applicable only when the rape or incest is reported in a timely manner. McRae alleged that the Hyde Amendment violated her right to privacy, the Due Process Clause of the Fifth Amendment, and the Religion Clauses of the First Amendment. “It is the appellee’s view that the Hyde Amendment violates the Establishment Clause because it incorporates into law the doctrines of the Roman Catholic Church concerning the sinfulness of abortion and the time at which life commences.”1

In the case of Harris v. McRae, the outcome of the case was affected by the religious morals and political ideals of the Supreme Court Justices who voted with the majority. This is made clear by their interpretations of Roe v. Wade (1973) (the original case prohibiting the government from denying abortions under the Right to Privacy) and the Hyde Amendment (1976). Thus, the political and religious beliefs of the justices pervaded their votes, affecting the laws and the legal system of the United States of America.

While our society seems to put a premium on the impartiality of our justice system, one must wonder if it is in fact positive or necessary for our judges to remain impartial at all times. In order to answer this, it is important to look at the agreed upon job description for a judge according to the American Bar Association (ABA). On their official website it states, “[a] judge is an appointed or elected magistrate who is tasked with promoting justice by presiding in a fair and impartial manner over court proceedings and deciding questions of law or discretion in which advocates present their cases for a resolution of the issues by a jury or the judge.”2 The concept of “impartial manner” is later elaborated on to say that to decide impartially is, “to adhere strictly to and not divert from a standard of what has been determined as right, true or lawful.”3 These abilities are essential to judges, but they also must remember that, “being just means more than being fair. It means to demonstrate humanity; to feel compassion for and understanding of the concerns of the litigants as persons; a recognition that achieving justice to the litigants before you is more than slavish allegiance to dictates of mechanical jurisprudence.”4 These ideas are the parameters that the ABA presents as their official description of the role of a judge. While these restrictions are not specifically applied to Supreme Court Justices, the general criteria remain constant throughout the hierarchies of the Courts. Our society looks to our justice systems for impartiality because there are fears that if personal morals and political ideals guide the decisions of the members of our justice system, their decisions will inevitably differ from a portion of their constituents.

As no person is capable of being completely impartial, there are times when the Court admits to a lack of objectivity. Thus is stated in the opinion of the Court authored by Justice Stewart: “The constitutional freedom recognized in Wade and its progeny, the Maher Court explained, did not prevent Connecticut from making ‘a value judgment favoring childbirth over abortion, and . . . [implementing] that judgment by the allocation of public funds.”5 “Value judgments” such as this not only make it clear that religious morals and political ideals influence a judge’s vote, but also that they subsequently affect the case law.

Justice Stewart’s use of language as he discussed Roe v. Wade provides insight into his personal moral stance surrounding abortion and the viability of a fetus. He said, “[t]his implicit constitutional liberty, the Court in Wade held, includes the freedom of a woman to decide whether to terminate a pregnancy. But the Court in Wade also recognized that a State has legitimate interest during a pregnancy in both ensuring the health of the mother and protection potential human life.”6 The concept of a fetus as a potential human life has considerable moral connotations for both sides of the abortion debate. The anti-choice advocates see “potential human life” as inflammatory because it is their belief that a person is created upon conception. On a website denouncing the Roe v. Wade decision (the subtitle on the front page of their site reads: “The scientific understanding, Roe v. Wade’s understanding, Your understanding”), it is proclaimed that “THERE ARE NO DEGREES OF BEING A PERSON.”7

On the other side of the debate, many pro-choice people view the term, “potential human life,” as humanizing something that is not yet human. Their concerns are well illustrated in an address given by President Bush on the controversy surrounding stem cell research. In his address, he said that stem cell research “destroys the embryo, and thus destroys its potential for life. Like a snowflake, each of these embryos is unique, with the unique genetic potential of an individual human being.”8 His use of language is meant to paint a specific picture for his audience, which some might say was Justice Stewart’s goal by using similar language while addressing the Court. It is relatively clear that President Bush used this type of language to elicit a specific emotion from the audience. Justice Stewart’s message and morals are slightly more concealed in his language, but one could extrapolate and conclude that Stewart and the rest of the majority claim that McRae’s Right to Free Exercise is not infringed upon by the lack of federal funding for her abortion. The Court succeeds in turning their own religious morals and political ideals into law, while condemning McRae and other women in her situation as immoral, and therefore, unworthy of legal rights. It is in circumstances such as these that impartiality, or the lack thereof, in the legal system can be both positive and negative.

Interpretation of the Hyde Amendment on the part of the majority in Harris is riddled with use of personal morals to convince the rest of the Court that the amendment does not infringe upon the rights of indigent pregnant women. The United States Supreme Court website explains that, “[w]hen the Supreme Court rules on a constitutional issue, that judgment is virtually final; its decisions can be altered only by the rarely used procedure of constitutional amendment or by a new ruling of the Court.”9 And yet, three years after Roe, Representative Henry Hyde, a Republican from Illinois, introduced an amendment that attempted to alter the ruling. Known as one of the most vocal and relentless opponents of abortion, Hyde created an amendment, widely known as the first major legislative success made in the U.S. with a clear anti-abortion message. “Since 1976, versions of the so-called Hyde Amendment have severely limited the use of any federal funds to reimburse the cost of abortions under the Medicaid program.”10 The Hyde Amendment, like all amendments, was created without any pretences of objectivity. As was mentioned previously, the appellees alleged that the Hyde Amendment, “violates the Establishment Clause because it incorporates into law the doctrines of the Roman Catholic Church concerning the sinfulness of abortion and the time at which life commences.”11 The Court denied these allegations, asserting that just because the Hyde Amendment, “happens to coincide or harmonize with the tenants of some or all religions” this does not mean that it necessarily prefers one religion.12

The court offered an analogy, observing that just because the, “…Judaeo-Christian religions oppose stealing does not mean that a State or the Federal Government may not, consistent with the Establishment Clause, enact laws prohibiting larceny… The Hyde Amendment…is as much a reflection of ‘traditionalist’ values toward abortion as it is an embodiment of the views of a particular region.”13 Drawing an analogy from the situation of abortion to the situation of stealing and their relation to religion is not a sound argument. Stealing by definition affects another person; in order for the act to qualify as stealing, an object must be taken from one person by another person. In the situation of abortion, as established in Roe and then again in Harris, “the freedom of a woman to decide whether to terminate her pregnancy falls within the personal liberty protected by the Due Process Clause.”14 This refers to the right of a woman to do something for her own body, which pro-choice advocates argue does not affect another person. Even Justice Byron White, a member of the majority, said that Roe established that women would be, “free from unreasonable official interference with private choice.”15 Similarly, abortion is not comparable to stealing because abortion continues to be a contemporary controversial issue that is linked constantly to religious and political choices. Simply put, stealing has never been and continues not to be discussed in this way. The choice not to steal is not a “traditionalist” value, while the choice or lack of choice to have an abortion is. By making such an analogy, the Court makes it clear that they see abortion as on the same moral plane as stealing.

The Court’s majority condoned the message of the Hyde Amendment and subsequently Congress’ support of the Hyde Amendment. This is made evident by the Court’s address of the final question of the case: “[w]hether the Hyde Amendment is rationally related to a legitimate governmental objective.”16 In the Court’s affirmative response to this question, once again the language establishes their religious morals and political values:

It follows that the Hyde Amendment, by encouraging childbirth except in the most urgent circumstances, is rationally related to the legitimate governmental objective of protecting potential life. By subsidizing the medical expenses of indigent women who carry their pregnancies to term while not subsidizing the comparable expenses of women who undergo abortions (except those whose lives are threatened), Congress has established incentives that make childbirth a more attractive alternative than abortion for persons eligible for Medicaid. These incentives bear a direct relationship to the legitimate congressional interest in protecting potential life. Nor is it irrational that Congress has authorized federal reimbursement for medically necessary services generally, but not for certain medically necessary abortions. Abortion is inherently different from other medical procedures, because no other procedure involves the purposeful termination of a potential life.17

The “incentives” that Congress established are, in fact, coercion, as there is no other option for women on Medicaid. By condoning the “incentives” that the Hyde Amendment and Congress present, the Court clearly established their personal views on abortion. Their collective interest in “protecting potential life” overshadows their interest in protecting the rights of women, no matter their economic status, to choose between a “purposeful termination of potential life” or childbirth. The Court is well aware that without federal funding, paying for a safe abortion is not an option for women on Medicaid.

Michael J. Perry, professor of law at Emory Law School, makes an objection in direct response to the majority opinion of Harris. His objection targets, “the doctrine of Roe v. Wade, the Court held in Maher, ‘protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy,’”18 Professor Perry continues:

Roe stands only for the narrow proposition that a woman’s interest in terminating her pregnancy is weightier (in the previability period) than government’s interest in discouraging the taking of fetal life by making abortion a crime or by some similarly coercive means. It does not follow, and Roe does not support the claim, that the woman’s interest is also weightier than government’s interest in discouraging abortion by some less coercive means, such as refusing to subsidize it. Under Roe, government may take action predicated on the view that abortion is per se morally objectionable, although government may not enforce that view by means of its criminal law or by any other ‘unduly burdensome’ means.19

In order to further decipher the majority opinion of this case, this objection, and their use of personal morality and personal politics, it is necessary to reference the dissenting opinion. Justice Thurgood Marshall, a member of the dissenting position, pointed out that the Harris ruling, “studiously avoid[s]” the fact that if a woman who is eligible for Medicaid is denied funding for her abortion, or any other medical procedure, she is also being denied the ability to safely undergo an abortion. “By definition, these women do not have the money to pay for an abortion themselves. If abortion is medically necessary and a funded abortion is unavailable, they 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.”20 This statement is painfully true, yet the majority of the Court seems to view this as a logistical issue, and therefore, not their responsibility. It is ironic that despite the Court’s alleged concern for human life, they manage to ignore the tight restrictions that are placed around a federally funded abortion. This results in leaving many pregnant women on Medicaid with no option but to give birth to a baby regardless of whether they will be psychologically or physically capable of caring for a child when it is born.

In an abstract form, one might be able to agree that it is truly not the Court’s responsibility to ensure the viability of their rulings as helpful to their constituents. Yet it is also believed that strict constitutionalism, which is the interpretation of the Constitution that quite a few Supreme Court judges use, can lead to inhumane rulings that benefit the government over its citizens. Some believe that this is what the ABA definition of impartial decision making refers to when it states that, “[b]eing just means more than being fair. It means to demonstrate humanity; to feel compassion for and understanding of the concerns of the litigants as persons.”21 While the absence of fairness is not technically an unlawful act on a judge’s part, it does lead to a flawed justice system.

Justice Brennan, who delivered the dissenting opinion of the Court, agrees with the above quote published by the ABA. He quotes his fellow justice, Justice Marshall, who said in reference to a separate case, “[w]hen elected leaders cower before public pressure, this Court, more than ever, must not shirk its duty to enforce the Constitution for the benefit of the poor and powerless.”22 Justice Brennan views the actions of Congress in their use of the Hyde Amendment, as, “nothing less than an attempt by Congress to circumvent the dictates of the Constitution and achieve indirectly what Roe v. Wade said it could not do directly.”23 Justice Brennan refers to Justice Stewart’s belief that it is not the Court’s duty, “to decide whether the balance of competing interests reflected in the Hyde Amendment is wise social policy.”24 While it may not be the Court’s duty, Justice Brennan does see it as their responsibility, “to vindicate the pregnant woman’s constitutional right to decide whether to bear children free from governmental intrusion.”25 It is clear through Justice Brennan’s dissent that he does not agree with the Hyde Amendment and therefore does not agree with his fellow justices who joined the majority opinion for this case.

In looking at the politics and morals surrounding Harris, it is important to recognize that the same court that ruled for Roe also ruled against Harris seven years later. This is the Burger Court, under Chief Justice Warren E. Burger, who is known as a conservative and a strict constitutionalist. He voted, unsurprisingly, with the majority in the case of Harris v. McRae. More surprisingly, however, he also voted with the majority in Roe, but this is not remarkable because the only two justices to dissent Roe were William Rehnquist, who was notorious throughout his long career for being extremely conservative, and Byron White, who is simply well known for an unpredictable voting record. As Justice Brennan points out, the Hyde Amendment was approved by Congress to essentially overturn Roe without alerting the necessary bureaucracies to do it legally and officially.

In examining the majority opinion of the Court, especially that of Justice Stewart, in the ruling in the case of Harris, and the interpretation using the case of Roe and the Hyde Amendment, it is clear that the religious morals and political ideals of the justices influenced their decisions. Through their use of language, which was at times subtle, and their blatant statements, the discourse surrounding the issue of abortion in this case made it clear that the justices with the majority opinion had their own religious morals and political ideals that affected their opinion on abortion and the right that indigent women have to undergo an abortion. Due to each justice’s inability to ignore their personal beliefs, they have made, and will continue to make, a direct affect on the laws and the legal system of the United States of America. This is a reality of our justice system because it is not possible for any person, whether or not they are a Supreme Court Justice, to make an impartial decision completely void of religious morals and political ideals. In order to ensure fairness, it is most important for every person to demonstrate one’s own interpretation of humanity to the best of one’s ability. paJ

About the Author: (Margaret) Tovah Miller graduated from William Smith in 2008 with a major in Religious Studies and a minor in Sociology and Women’s Studies. This article stems from her interest in law and social justice. She plans to attend law school in the near future.

(Notes)

  1. U.S. Supreme Court, ‘Harris V. McRae” No. 448 U.S. 297 (June 30, 1980), pg 448 U.S. 319, http://supreme.justia.com/us/448/297/case.html (accessed February 13, 2008).
  2. Lewis D. Nicholls, “ABA Division for Public Education: Lawyers and Judges.” American Bar Association Website, http://www.abanet.org/publiced/volunteer/judge_whatdo.html (accessed April 29, 2008).
  3. Ibid
  4. Ibid
  5. U.S. Supreme Court, “Harris V. McRae” No. 448 U.S. 297 (June 30, 1980), pg 313; 100 S. Ct. 2671,**2686, Lexisnexis.com (accessed April 29, 2008).
  6. U.S. Supreme Court, “Harris V. McRae” No. 448 U.S. 313 (1980), http://supreme.justia.com/us/448/297/case.html (accessed February 13, 2008).
  7. Fetal Life and Abortion: Human Personhood At Conception, “HUMAN BEINGS MATURE; THEY DO NOT DEVELOP FROM “POTENTIAL HUMAN BEINGS,” http://www.unbornperson.org/section_3.htm (accessed April 25, 2008, May 2, 2008).
  8. George W. Bush, “President Discusses Stem Cell Research,” (“Speech”) The Bush Ranch, Crawford, Texas. August 9, 2001 http://www.whitehouse.gov/news/releases/2001/08/20010809-2.html (accessed May 2, 2008).
  9. Supreme Court of the United States: About the Supreme Court, “The Court and Constitutional Interpretation,” (August 16, 2007) http://www.supremecourtus.gov/about/constitutional.pdf (accessed April 30,2008).
  10. U.S Supreme Court, ‘Harris V. McRae” Syllabus (June 30, 1980), http://supreme.justia.com/us/448/297/case.html (accessed February 13, 2008).
  11. U.S. Supreme Court, “Harris V. McRae” No. 448 U.S. 319 (1980), http://supreme.justia.com/us/448/297/case.html (accessed February 13, 2008).
  12. Ibid
  13. Ibid.
  14. U.S. Supreme Court, “Harris V. McRae” No. 448 U.S. 316 (1980), http://supreme.justia.com/us/448/297/case.html (accessed February 13, 2008).
  15. U.S. Supreme Court, “Harris V. McRae” No. 448 U.S. 327 (1980), http://supreme.justia.com/us/448/297/case.html (accessed February 13, 2008).
  16. U.S. Supreme Court, “Harris V. McRae” No. 448 U.S. 325 (1980), http://supreme.justia.com/us/448/297/case.html (accessed February 13, 2008).
  17. Ibid.
  18. U.S. Supreme Court, “Harris V. McRae” No. 448 U.S. 297 (June 30, 1980), pg 313; 100 S. Ct. 2671,**2686, Lexisnexis.com (accessed April 29, 2008).
  19. Michael J. Perry, “Why the Supreme Court Was Plainly Wrong in the Hyde Amendment Case: a Brief Comment,” Stanford Law Review 32 (1980), 1113-1128. JSTOR. Hobart and William Smith Colleges, Geneva, NY. Keyword: Harris and McRae, (accessed April 8, 2008).
  20. U.S. Supreme Court, “Harris V. McRae” No. 448 U.S. 338 (1980), http://supreme.justia.com/us/448/297/case.html (accessed February 13, 2008).
  21. Lewis D. Nicholls, “ABA Division for Public Education: Lawyers and Judges.” American Bar Association Website. http://www.abanet.org/publiced/volunteer/judge_whatdo.html (accessed April 29, 2008).
  22. U.S. Supreme Court, “Harris V. McRae” No. 448 U.S. 332 (1980), http://supreme.justia.com/us/448/297/case.html (accessed February 13, 2008).
  23. U.S. Supreme Court, “Harris V. McRae” No. 448 U.S. 331 (1980), http://supreme.justia.com/us/448/297/case.html (accessed February 13, 2008).
  24. U.S. Supreme Court, “Harris V. McRae” No. 448 U.S. 332 (1980), http://supreme.justia.com/us/448/297/case.html (accessed February 13, 2008).
  25. Ibid.

References

Bush, George W. “President Discusses Stem Cell Research.” The Bush Ranch, Crawford, Texas. 9 Aug. 2001. 2 May 2008 <http://www.whitehouse.gov/news/releases/2001/08/20010809 2.html>.

Harris V. McRae. No. 448 U.S. 297. U.S. Supreme Court. 30 June 1980. 29 Apr. 2008 <Lexisnexis.com>. pg 313; 100 S. Ct. 2671, **2686

Harris V. McRae. No. 448 U.S. 297. U.S. Supreme Court. 30 June 1980. 13 Feb. 2008 <http://supreme.justia.com/us/448/297/case.html>.

“HUMAN BEINGS MATURE; THEY DO NOT DEVELOP FROM “POTENTIAL HUMAN BEINGS.”Fetal Life and Abortion: Human Personhood At Conception. 25 Apr. 2008. 2 May 2008 <http://www.unbornperson.org/section_3.htm>.

Nicholls, Lewis D. “ABA Division for Public Education: Lawyers and Judges.” American Bar Association Website. American Bar Association. 29 Apr. 2008 <http://www.abanet.org/publiced/volunteer/judge_whatdo.html>.

Perry, Michael J. “Why the Supreme Court Was Plainly Wrong in the Hyde Amendment Case: a Brief Comment.” Stanford Law Review 32 (1980): 1113-1128. JSTOR. Hobart and William Smith Colleges, Geneva, NY. 8 Apr. 2008. Keyword: Harris and McRae.

“The Court and Constitutional Interpretation.” About the Supreme Court. 16 Aug. 2007. Supreme Court of the United States. 30 Apr. 2008 <http://www.supremecourtus.gov/about/constitutional.pdf>.

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