Women’s right to choose: Defend legal abortion on the 38th anniversary

By Sue Davis

Jan 15, 2011

Jan. 22 marks the 38th anniversary of Roe v. Wade, the U.S. Supreme Court decision legalizing abortion. Tens of thousands of women have been saved from death and serious injury since abortion became legal in 1973. Women who chose to have safe, legal abortions ever since have felt enormous security and relief as they went about their lives.

However, the new Congress is ready to mount a frontal attack on legal abortion — the most serious in its history since the 1976 Hyde Amendment.

Joined by more than 50 new anti-choice representatives, Rep. John Boehner boasts of being the most anti-abortion House Speaker in history. The No Taxpayer Funding for Abortion Act seeks to codify the Hyde Amendment, which prohibits Medicaid-funded abortions for poor women.

It would also impose such stiff conditions on private health insurance companies that none would offer abortion coverage. Being forced to pay for abortions would be like a tax on the 62 million U.S. women of childbearing age.

Given that women earn only 77 cents for every dollar men earn and that women have been hit hard by the jobless recovery, many more women would share the financial desperation and emotional misery women on Medicaid have experienced for 34 years.

That anguish was portrayed in the 58-page study entitled “Whose Choice: How the Hyde Amendment Harms Poor Women,” published last September by the Center for Reproductive Rights and the National Network of Abortion Funds. Fifty-eight percent of women on Medicaid reported “serious hardships” due to Hyde, including having had to deprive children of food, pawn wedding rings and take out high-interest loans to pay for needed health care. As of 2001, 18 percent to 35 percent of Medicaid-eligible women reported having to carry unintended pregnancies to term because of Hyde.

However, the Hyde Amendment wasn’t implemented without a struggle in the streets and in the courts. The fight to stop Hyde in the 1970s is instructive with regard to defending legal abortion now.

Eighty groups of progressive pro-choice women, many who called themselves socialist-feminists, organized nationally as the Hyde Amendment was set to take effect. As they spoke out, wrote, marched and rallied to stop Hyde, they also theorized about women’s rights.

In order for women to be able to control whether, when and with whom to have children, the activists compiled a list of rights that included — in addition to legal abortion — access to birth control, sex education, daycare, health care, jobs and housing; and freedom from sexist, racist and anti-lesbian oppression; sterilization abuse; sexual harassment; incest; and domestic violence.

To describe these prerequisites for women’s liberation, they coined the term “reproductive rights” and discussed “reproductive freedom.” This now includes the call for “reproductive justice.”

Meanwhile, women lawyers at the Center for Constitutional Rights, led by the world-renowned legal activist for women’s rights, Rhonda Copelon (1944-2010), filed a nationwide class action lawsuit that stopped Hyde from taking effect in 1976.

Defeat Hyde in the streets

After the Supreme Court overturned the injunction in 1977, Federal District Court Judge John F. Dooling Jr. heard testimony from doctors, theologians and poor women, and received more than 500 exhibits on the medical and religious aspects of the case.

After 13 months of deliberation, Judge Dooling invalidated the Hyde Amendment in 1980 as violating the First and Fifth Amendments. CCR stated: “His decision documented the health impact of denying poor women abortions; the major religious traditions which support the conscientious choice of abortion; and the pervasively religious character of the anti-abortion position that the fertilized egg is equivalent to a person.” (Past Cases at ccrjustice.org)

Later that year the Supreme Court, in a highly contested 5-4 vote on Harris v. McRae, reversed that decision, “ignoring [Dooling’s] comprehensive findings of fact as well as the principle that the state must respect the constitutional rights of the poor in distributing or limiting welfare benefits.”

The majority opinion stated that a woman’s freedom of choice does not include “a constitutional entitlement to the financial resources to avail herself of the full range of protected choices” and “poverty does not qualify as a ‘suspect classification’” protected by the Fifth Amendment.

Justice Thurgood Marshall defended poor women’s rights in his eloquent dissent: “The denial of Medicaid benefits to individuals who meet all the statutory criteria for eligibility, solely because the treatment that is medically necessary involves the exercise of the fundamental right to choose abortion, is a form of discrimination repugnant to the protection of the laws guaranteed by the Constitution. The Court’s decision today marks a retreat from Roe v. Wade and represents a cruel blow to the most powerless members of our society.”

The Hyde-30 Years Is Enough! Campaign, an NNAF project, says, “For more than 30 years, the Hyde Amendment and other funding restrictions have affected the poorest and most vulnerable of low-income Americans, with a disproportionate impact on women of color and immigrant women. The Hyde Amendment denies abortion access to the 7 million women of reproductive age who are currently enrolled in Medicaid. These funding restrictions are the most detrimental of all attacks on safe, legal abortion care, and represent a clear violation of low-income women’s human rights.”

It is crucial that the federal government guarantee equal, comprehensive health care to all women, and provide funding for those who need it.

Pro-choice activists and their supporters must rally to stop the “cruel blows” that today threaten all but rich women. Only a widespread, united fightback, in the streets and the courts, can defend women’s right to legal abortion and advance the struggle for reproductive justice.