This Note focuses on two cases, Maher v. Roe and Harris v. McRae, and argues that they represent watershed moments in the reproductive rights movement because they positioned abortion as a fundamental right in name only. In both cases, the Supreme Court sanctioned severe funding restrictions and refused to grant poor women the right to state and federal assistance for elective and “nontherapeutic” abortions. “Non-therapeutic abortion” refers to those abortions performed or induced when the life of the mother is not endangered if the fetus is carried to term or when the pregnancy of the mother is not the result of rape or incest reported to a law enforcement agency. This Note contends that by articulating the abortion right as stemming from the “right to privacy,” the Court effectively ruled out the possibility of public assistance for abortions. In contrast, a better approach to this issue would be to use an equality framework grounded in the Equal Protection Clause. This approach would instruct courts to invalidate state abortion restrictions that either 1) impose a burden on the reproductive choices of women when there is no equivalent restriction placed on men; or 2) have a disparate impact on indigent women. These missed opportunities to reorient the Court’s reproductive rights jurisprudence under the Equal Protection Clause continue to have lasting effects on women’s access to abortion, as the Court continues to weaken the Due Process standard articulated in Roe, enabling it to uphold increasingly prohibitive state restrictions on abortion.
Missed Opportunities: The Unrealized Equal Protection Framework in Maher v. Roe and Harris v. McRae,
Mich. J. Gender & L.
Available at: http://repository.law.umich.edu/mjgl/vol23/iss1/5