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Kagan File, News, Statements, U.S. Supreme Court

AUL’s Kagan File: The “Harris v. McRae” Memo


TO: Interested Parties

FROM: AUL Legal Team

DATE: June 18, 2010

RE: Kagan, Marshall, and Harris v. McRae


Thirty years ago, on June 30, 1980, in Harris v. McRae[1] (a case argued by Americans United for Life), the Supreme Court upheld the Hyde Amendment which is a federal restriction on the use of Medicaid funds for abortion.

In Harris, the Court held “Congress has established incentives that make childbirth a more attractive alternative than abortion”.[2] Congress’ distinction between abortion and other medical procedures was valid because “[a]bortion is inherently different from other medical procedures, because no other procedure involves the purposeful termination of a potential life.”[3]

Justice Marshall dissented, arguing “denial of a Medicaid-funded abortion is equivalent to denial of a legal abortion altogether.”[4] Marshall wanted the Hyde Amendment’s exception (which allowed Medicaid funds only to be used for abortions where the life of the mother would be endangered if the fetus were carried to term) to be as broad[5] as the health exception found in Doe v. Bolton.[6] In Doe, the Court broadly defined Roe’s health exception essentially to give women abortion on demand.[7] Marshall would have had the taxpayer funding abortions through Medicaid.

Justice Marshall viewed abortion as a vital part of health care for women, and rejected the Court’s holding that abortion was “inherently different from other medical procedures.”[8] He held this view through the end of his term on the Court.

For instance, ten years later, in Hodgson v. Minnesota,[9] Marshall ignored the Court’s ruling in Harris that said abortion could be treated differently than other medical procedures.[10] Marshall would have lumped abortion in with other medical treatments such as “pregnancy, venereal disease, or alcohol and other drug abuse.”[11] Marshall’s novel theory trivializes the decision to have an abortion as just another medical procedure.

Elena Kagan described Justice Thurgood Marshall’s constitutional interpretation as “a thing of glory.”[12] However, the reality of Justice Marshall’s decisions concerning abortion are quite extreme.


The thirtieth anniversary of Harris v. McRae should serve as a reminder that abortion is not an unlimited right nor is it a human good.  The Court was adamant that abortion is a different kind of “medical procedure”, and the people need not fund it with their tax dollars.

Kagan’s praise for Marshall’s constitutional interpretation as “a thing of glory”[13] indicates she may interpret the Constitution in a similar manner.  Elena Kagan must answer questions about whether she agrees with her mentor’s view that American taxpayers are Constitutionally required to pay for abortions.

[1] Harris v. McRae, 448 U.S. 297 (1980).

[2] Harris, 448 U.S. at 325.

[3] Id.

[4] Id. at 338.

[5] Id. at 339.

[6] Doe v. Bolton, 410 U.S. 179 (1973).

[7] Id. at 192 (“We agree with the District Court, that the medical judgment may be exercised in the light of all factors-physical, emotional, psychological, familial, and the woman’s age-relevant to the well-being of the patient. All these factors may relate to health.”).

[8] Harris, 448 U.S. at  325.

[9] Hodgson v. Minnesota, 497 U.S. 417 (1990).

[10] Harris v. McRae, 448 U.S. 297, 325 (1980).

[11] Id.

[12] Elena Kagan, For Justice Marshall, 71Tex L. Rev. 1125, 1130 (1993).

[13] Id. at 1130.