The 36-Year-Old Abortion Rights Case Emerging Again in ‘Whole Woman’s Health’

When the Supreme Court considers the constitutionality of Texas anti-abortion regulations it will look as much to the case that upheld the Hyde Amendment as it will the undue burden standard of Casey.

Ultraviolet's "No Access, No Choice" exhibit in Washington, D.C., on February 29 Lauryn Gutierrez // RH Reality Check

Read more of our coverage of Whole Woman’s Health v. Hellerstedt here.

As the Supreme Court considers Whole Woman’s Health v. Hellerstedt, the case challenging provisions of a Texas law that has decimated abortion access in the state, much of the media attention has turned to the legacy of Planned Parenthood v. Casey. The 1992 Casey decision, while reaffirming the constitutional right to an abortion, also brought us the famously nebulous “undue burden” standard that the Roberts Court is revisiting in Whole Woman’s Health. But focusing so much attention on Casey is leaving out a crucial piece of the equation: The Texas abortion rights case is much more about the Hyde Amendment and Harris v. McRae, the Supreme Court case that held Hyde constitutional, than it ever was about Casey, no matter what legal standard is before the Roberts Court. 

In 1965, Congress established the Medicaid program via Title XIX of the Social Security Act, in order for the federal government to offset the costs to states of medical treatment for low-income individuals. In 1976, just three years after Roe, Congress first passed the Hyde Amendment, a budget amendment that severely limited the use of federal funds to reimburse the cost of abortions under the Medicaid program. Put more simply, most people on Medicaid cannot use their insurance coverage for abortions, except in the rare cases of rape, incest, or their own life endangerment.

Cora McRae, a pregnant Medicaid recipient, challenged the amendment and took action against Patricia R. Harris, secretary of Health and Human Services. Her lawsuit made it all the way to the Supreme Court, which ruled in a 5-4 decision that the right to an abortion may be fundamental, but that doesn’t mean the government has to make that right affordable.

“Regardless of whether the freedom of a woman to choose to terminate her pregnancy for health reasons lies at the core or the periphery of the due process liberty recognized in [Roe v.] Wade, it does not follow that a woman’s freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices,” the majority in Harris held. “Although government may not place obstacles in the path of a woman’s exercise of her freedom of choice, it need not remove those not of its own creation, and indigency falls within the latter category.”

“The Hyde Amendment … places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy, but rather, by means of unequal subsidization of abortion and other medical services, encourages alternative activity deemed in the public interest,” the Court continued.

In effect, what the Court held in Harris is that the Hyde Amendment is constitutional because the obstacle for poor women accessing abortion is their poverty, not the fact that their government-funded health insurance refuses to cover the procedure. It continued:

The financial constraints that restrict an indigent woman’s ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions on access to abortions, but rather of her indigency. Although Congress has opted to subsidize medically necessary services generally, but not certain medically necessary abortions, the fact remains that the Hyde Amendment leaves an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all.

It takes a great deal of mental gymnastics to distinguish between abortion being inaccessible because a woman is poor, and abortion being inaccessible due to restrictions on government assistance for health care to the poor. But the conservative majority in Harris did just that: It refused a serious examination of the systemic barriers low-income women face to accessing reproductive health care and insisted that poverty, not government obstruction, was the hurdle to low-income women having their right to an abortion respected by the courts.

Fast forward more than 30 years, and the Supreme Court is once again looking at roadblocks to abortion access. ​As in Harris v. McRae, the roadblocks in question disproportionately affect low-income women, especially women of color. But instead of government-created financial barriers to having an abortion, the Court will address certain government-created physical barriers to having an abortion, in the form of targeted regulation of abortion providers (TRAP) laws. The question is whether the Court will again allow the government to refuse to take responsibility for those barriers.

In addition to Texas, 23 other states have TRAP laws that single out abortion doctors and clinics for heightened regulation. Before the Supreme Court in Whole Woman’s Health are two provisions of Texas’ HB 2, the monster anti-abortion omnibus bill that also includes restrictions on medication abortions and a 20-week ban. One provision before the Court requires an abortion clinic to be outfitted with the same physical and professional requirements as stand-alone surgical centers, even if the clinic performs medical, rather than surgical abortions. That provision is currently blocked from being enforced in Texas, thanks to a temporary Supreme Court order.

The second provision before the Court requires any doctor performing abortions in clinics in the state to have admitting privileges at a hospital within 30 miles of the clinic. That part of the law is in effect in most of the state, after extensive previous litigation.

Depending on how the Court rules later this year, the impact of Whole Woman’s Health could have national reach, but will fall hardest on the poorest and most vulnerable in this country.

“The clinic shutdown laws in Texas don’t just impact women in Texas,” Marcela Howell, founder and executive director of In Our Own Voice: National Black Women’s Reproductive Justice Agenda, said in an interview with Rewire. “And specifically for Black women, so many of those laws exist in other southern states. So we are looking at the impact on Black women in Texas, but also on Black women in the entire South, and across the entire country in places like Wisconsin.”

“We are looking at more than 12 million Black women [potentially affected] if you look at the other states where these laws also exist,” Howell said.

“These laws are designed to impede women. And for Black women in particular these laws are just piling on to the history of Black women being disproportionately impacted by laws that supposedly help us, but don’t,” Howell continued, referring to conservatives’ frequent claims that TRAP laws are instated for patient safety.

Howell connected HB 2’s provisions—which, if allowed to stand, would close all but ten clinics in the entire state, according to advocates—to the specific legacy of the Hyde Amendment and the Court decision upholding it.

“The restrictions [in Hyde] were really targeted at Black women because [Rep. Henry Hyde (R-IL)] was looking at low-income women and stopping them from getting abortions, and those were disproportionately Black women at the time,” said Howell.

Once those public funding restrictions were embraced by the Court, conservatives jumped to pronounce them the “law of the land,” despite the fact that the Hyde Amendment is subject to renewal with each budget cycle. So the Hyde Amendment is not, in fact, the law of the land. It is simply a budget preference that has resulted in decades of systemic discrimination.

Howell tied across-the-board challenges for Black women in accessing comprehensive reproductive health with this latest round of attacks on abortion rights.

“You have Black women who are already systemically denied resources and services around health care … And so when you look at those kinds of things and then you look at Texas and you say, well, Black women already have difficulty accessing health care for a number of different reasons,” said Howell. “A large portion of them are in jobs that don’t provide employer-sponsored health care, therefore they have to rely on Medicaid or other sources to get their health care. Or they end up going to the emergency room when they need care.”

In Texas specifically, it is hard not to draw the conclusion that HB 2’s TRAP provisions were designed to target low-income patients. The omnibus law came on the heels of Texas conservatives dismantling the very successful Women’s Health Program, the state’s previous family planning program for low-income Texans.

“HB 2 has been a disaster, quite frankly,” said Jessica González-Rojas, National Latina Institute for Reproductive Health executive director, in an interview with Rewire.

“Latinas make up a majority of women of reproductive age in Texas. We make up 2.5 million women of reproductive age. Many in our community are low-income or live in rural communities or are undocumented or are legal permanent residents or don’t speak English fluently,” González-Rojas said. “So there are many roadblocks we encounter already in terms of accessing basic reproductive health care. When you layer in what’s happening with HB 2, especially in areas like the Rio Grande Valley, it serves as a total de facto ban on abortion.”

As González-Rojas explained, the Rio Grande Valley is full of border towns and communities that are unincorporated. These communities lack a lot of basic infrastructure. Many don’t have running water. Very few, if any, have access to public transportation.

“If the law stands and the Whole Woman’s Health in the Rio Grande has to close, what that means is that women in the Rio Grande Valley would have to drive up [to] and over 200 miles to get to the next nearest clinic, which is in San Antonio,” said González-Rojas. “That means taking time off work, and again, many of them are in jobs that don’t have paid time off or other worker protections. They would have to scrape up the money for the procedure, scrape up money for gas. They would have to stay somewhere. Some would have to sleep in their car.”

“And they would have to cross a border checkpoint,” González-Rojas said.

Federal courts might not look at crossing a border checkpoint as a big deal, but for many women of the Rio Grande Valley, it is a frightening prospect, at the least.

“The first thing you see at that border checkpoint is how many ‘aliens’ have been accosted and how many drugs have been seized. And then you have this very intimidating immigration officer asking for your papers, and where you are going,” said González-Rojas.

“For women in the Rio Grande Valley, even for those who have citizenship or permanent resident status there is such a climate of fear when we are also facing a really harsh and hostile immigration environment to take that risk and to go north, even if they could scrape all the resources to do so,” González-Rojas said.

Texas’ omnibus anti-abortion law, if it stands, will effectively shut down access to the constitutional right to reproductive health care for women all over the state. But similar to the reasoning used by the conservative justices in Harris v. McRae to determine that it was poverty, not insurance restrictions on abortion, that created roadblocks to care for low-income women, the conservative Fifth Circuit recently ruled that it was patient safety concerns, not the overall anti-choice sentiment expressed by conservative politicians, that prompted TRAP laws like HB 2.

In upholding both the Texas regulations and similar Louisiana ones more recently, the Fifth Circuit expressly stated that it was not the job of the courts to second-guess anti-choice lawmakers when they say their abortion restrictions advance patient health—even if the evidence clearly demonstrates that those laws harm patients. As far as the Fifth Circuit is concerned, those promises by conservative lawmakers are enough.

The fact that clinics have been closing left and right as a result of “patient safety” regulations routinely rejected by mainstream medical organizations as bad for patient safety is not because of a government-created roadblock, HB 2 supporters claim. It’s because there’s an overall drop in demand in the “abortion marketplace.” It doesn’t matter that forcing patients to travel hundreds of miles to access reproductive health care demonstrably drives down patient care, supporters of HB 2 state. These regulations are for the benefit of women. Trust us, the anti-choice politicians say.

It’s impossible to know right now whether the Supreme Court will, once again, bite on this kind of circular logic the way it did in Harris and hold that laws passed by the state to close clinics are not, in fact, government-created obstacles to getting an abortion. And given that the current makeup of the Roberts Court is incomplete until a replacement for the recently deceased Justice Antonin Scalia is named and confirmed, an outcome in Whole Woman’s Health is nearly impossible to predict.

But if history is to be any guide, then the fact that the impact of these TRAP laws falls heaviest on poor women of color should give us pause. Because rarely, if ever, have women of color found a sympathetic majority of Supreme Court justices.

Let’s hope this time, and this case, it’s different.