During a floor debate in 1976, Representative Henry Hyde explained, “I would certainly like to prevent, if I could legally, anybody having an abortion, a rich woman, a middle class woman, or a poor woman. Unfortunately, the only vehicle available is the [Medicaid] bill.” For a short time after the Supreme Court of the United States established the right to abortion in Roe v. Wade, Medicaid did not distinguish between coverage for abortion and other medical services. That all changed when Congress passed the Hyde Amendment to the Medicaid Act in 1976. This Note will argue that a right to abortion coverage for women who lack the means to access the right can be accomplished not only through the recognition of an intersectional suspect classification but also an interpretation of the Patient Protection and Affordable Care Act (PPACA) as conferring positive rights. In Harris v. McRae, the Court established the Hyde Amendment’s constitutional validity. In doing so, the Court maintained that because Congress did not impinge on a substantive right or purposefully detriment a suspect class through Hyde, the rational relation standard applied. Recognizing a suspect classification that accounts for the intersection of race, sex, and socioeconomic status would be the first step towards triggering a strict scrutiny analysis of Hyde due to the disproportionate impact Hyde has on disadvantaged women of color. Additionally, understanding the PPACA as conferring a positive right to health care could eventually favor a finding of a positive right to abortion coverage, thus changing the Court’s due process analysis in Harris.
Courtney Olson, Finding a Right to Abortion Coverage: The PPACA, Intersectionality, and Positive Rights, 41 SEATTLE U. L. REV. 655 (2018).