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In the landmark case of Roe v. Wade, the Supreme Court held that the constitutional right to privacy included a woman’s decision on whether to terminate her pregnancy. The right to terminate the pregnancy, however, was not absolute, and had to be weighed, at various stages of the pregnancy, against the state’s “important and legitimate interest in preserving and protecting the health of the pregnant woman … [and] in protecting the potentiality of human life.” Justice Blackmun, at the outset of his majority opinion, acknowledged the Court’s “awareness of the sensitive and emotional nature of the abortion controversy, and of the vigorous opposing views, … and of the deep and seemingly absolute convictions that the subject inspires.” In view of this aura of emotionalism that surrounds the topic of abortion, it is not surprising that Roe has born the progeny it has in the six years since the case was decided.

A rather predictable problem, once the Court has declared that a woman has a right to choose to undergo an abortion, is the source of the funds that will enable indigent women to exercise their right. The first attack on this issue, in Beal v. Doe, focused on whether states participating in the Medicaid program should be required to provide indigent women with funds for abortions which were nontherapeutic. The Beal Court held that the states were not so required.

Congress’ enactment of the Hyde Amendment, a rider to the 1977 Health, Education and Welfare (HEW) Appropriation Act, precluded states in the Medicaid program from receiving federal funding for abortions except where the abortion was necessary to save the life of the mother. This limitation on funding goes beyond the holding of Beal in that Beal merely allowed states to withhold funds for purely elective abortions. Under the Hyde Amendment, women seeking abortions which would be considered medically necessary, that is, necessary for the mental or physical well-being of the mother, could not receive money through state Medicaid programs unless the state was willing to absorb the cost.

Several states have not been willing to absorb the costs of those abortions made ineligible for federal funding by the Hyde Amendment, and herein lies a new, vital area of litigation. In reaction to the federal Hyde Amendment, states have begun to enact their own “Hyde-type” amendments. These state statutes, insofar as they deprive Medicaid recipients of the ability to obtain “necessary” therapeutic abortions, are currently being attacked. These attacks, the most recent progeny of the abortion issue, will serve as the focus of this comment.

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