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Will the Supreme Court Hold State Governments’ Right to Choose Trumps Poor Women’s?

The constitutional challenge to the Affordable Care Act’s expansion of Medicaid poses a fundamental question to the Supreme Court: is a state government less able to exercise free choice in the face of the threat of loss of federal assistance than an impoverished pregnant woman whose health is threatened by the continuation of the pregnancy?

In 1976, Cora McRae needed to terminate her pregnancy for medical reasons, but she had very little money. She had health insurance through Medicaid, but under a provision of federal law known as the Hyde Amendment, federal Medicaid funds can not pay for abortions, including medically necessary abortions, though Medicaid covers other medically necessary expenses, including the costs of childbirth. McRae joined with other plaintiffs to challenge this law in court, arguing that by paying for childbirth expenses, but not for medically necessary abortion expenses, the government was unconstitutionally coercing her reproductive decisions and denying her right to choose to end her pregnancy. In 1980, the Supreme Court rejected McRae’s challenge to Medicaid’s failure to fund medically necessary abortions. “Although Congress has opted to subsidize medically necessary services generally, but not certain medically necessary abortions,” the Court wrote, “the fact remains that the Hyde Amendment leaves an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all.” In other words, refusing to provide Medicaid coverage for abortions did not represent unconstitutional coercion of a poor woman’s reproductive choices because, according to the Court, it was her poverty that constrained her choices, rather than any barriers the government had placed in her way. That she was poor and might be forced to make certain choices because of her poverty—like going through with a potentially dangerous pregnancy because she could not afford an abortion--wasn’t the government’s fault, the Court held.

I thought of Cora McRae’s case this week when I read the brief filed by 26 states arguing to the Supreme Court that the Affordable Care Act’s expansion of the Medicaid program unconstitutionally coerces the states into spending more state money on Medicaid. Under law, states always have the option to stop participating in the Medicaid program and turn down federal Medicaid funding, but if a state elects to participate and receive that funding, it must create a Medicaid program within certain parameters set by federal law. The 26 states are arguing that this choice is not really a choice because state budgets are very dependent on federal Medicaid funding. According to the brief, Congress is “exploit[ing]” the States’ “dependence on Medicaid funding to coerce compliance with a massive expansion of the program.” The brief argues that states need that federal Medicaid money too much to exercise their theoretical option to turn it down. They simply can’t afford to say no to the deal being offered by the federal government, the states argue, and so that deal amounts to the federal government compelling state policy choices in a way that violates the Constitution.

Of course, Cora McRae was dependent on Medicaid too. That dependence left her with very few real choices in the face of a program that would cover her medical costs if she continued her pregnancy but would withdraw financial support if she did not. It seems unlikely that the Supreme Court will hold the Medicaid expansion unconstitutional —no court has ever so held—but if it does, in essence it will be saying that state budgeters are more dependent on Medicaid than the poor and sick are. It will be saying that while the federal government cannot be held responsible for the lack of real choices available to an indigent pregnant woman who cannot afford to make a choice that comes without Medicaid funding, it can be held responsible when a state complains that it cannot afford to turn down federal Medicaid funding and face the political consequences. Such a result would be a very strange rule indeed.

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