Feminist Judgments: Rewritten Opinions of the United States Supreme Court is now available for pre-order. I contributed a chapter to this volume, which was edited by my colleague Linda Berger along with law professors Kathryn Stanchi and Bridget Crawford. Each author rewrote a famous Supreme Court opinion from a feminist perspective. Linda has already blogged for us why she edited this book.
I chose Harris v. McRae, the 1980 case in which the Court upheld the Hyde Amendment, which restricted Medicaid funding for medically necessary abortions.
Religion played a prominent role in the litigation of the case. Although the record clearly demonstrated that Illinois Rep. Henry Hyde had sponsored the amendment only because his religious beliefs committed him to ban completely women’s access to abortion, the district court rejected an Establishment Clause challenge to the amendment. To its credit, the district court did invalidate Hyde as a Free Exercise and Equal Protection violation. The Court, however, dismissed all three challenges to the legislation. On the two religion questions, the Court ruled that the amendment only just happened to coincide [!] with Hyde’s religious beliefs and therefore did not violate establishment. The Court also ruled that the women plaintiffs lacked standing to bring the free exercise challenge because “none alleged, much less proved, that she sought an abortion under compulsion of religious belief.”
At the time, many pro-choice advocates argued that free exercise — with its emphasis on religious conscience — was the proper way to litigate the case. They wanted women to enjoy a free-exercise-of-religion right to abortion in addition to its protection under the Due Process Clause.
My Opinion of the Court took a different approach. I ruled that the Hyde amendment clearly violated the Establishment Clause by imposing Congress’ religious beliefs on women. Religion-based government is never constitutional.
The record of the House debate on Hyde amply supported my conclusion. The congressmen — both liberal and conservative — spent the whole time talking about their own moral and religious belief about abortion and how it influenced their votes. Women’s health and well-being were completely ignored. No health reasons supported the arbitrary ban on abortion funding for indigent women.
Early readers of my chapter were surprised that I didn’t adopt a free-exercise analysis and suggested I do so. I disagreed, and wrote the opinion specifically to explain why. I like to think that my establishment analysis, if adopted in 1980, would have helped us to avoid the conscience-craziness that currently afflicts the law of religion in the United States, where government clerks and businesses seek a conscience right to discriminate against LGBT citizens and employers are granted religious rights to refuse contraceptive benefits to their employees.
The Framers of the Constitution understood that conscience is best protected by a non-religious government run according to constitutional, not religious, ideals. Any feminist judgment should be quick to support that ideal because religion-based laws do special harm to women, as the history of abortion and contraception access, starting with the Hyde amendment, confirms.
That’s why I wrote what should have been written in 1980.