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31 Case W. Res. L. Rev. 465 (1980-1981)
Harris v. McRae: Clash of a Nonenumerated Right with Legislative Control of the Purse

handle is hein.journals/cwrlrv31 and id is 493 raw text is: Harris v. McRae: Clash of a Nonenumerated Right with Legislative Control of the Purse David T Hardy* One of the most controversial issues surrounding abortion is whether the govern- ment has a duty to finance abortionsfor indgents. This Article examines that issue by juxtaposing the nonenumeratedright ofprivacy with legislativepreeminence in the allocation ofpublicfunds The author reviews the history of the abortion right, the right ofprivacy, and legislative preeminence inpubliefunding. The author then as- serts that the nonenumerated right to obtain an abortion is subordinate to legislative preeminence in the funding area The author explores this conclusion under first amendment, equal protection, and due process analyses and finally concludes that there is no convincing argument infavor ofa governmental duty to fnance abortions for indigents. INTRODUCTION WHILE MOST constitutional issues are controversial, the legal and moral issues relating to abortion and its procurement have been subject to especially uncompromising conflict. The ex- treme view each side has of the other is evidence of this ideologi- cal dichotomy. Those individuals opposed to abortion, for example, are characterized as puritanical Neanderthals, while those persons favoring abortion are referred to as baby-murdering servants of a new Reich. This conflict becomes even more intense when the issue of whether the government has a duty to finance the procurement of abortion by indigents is injected into the de- bate. Those individuals who resist the involuntary payment of taxes to support abortion clash with those persons who want the right to abortion equally available to all members of society. What was formerly only violent invective escalates to total intel- lectual war, with dispassionate analysis and historical perspective as the first casualties. The origin of the abortion conflict can be traced to its statutory * B.A. (1972), J.D. (1975), University of Arizona College of Law. The author is a partner in the law firm of Sando & Hardy.

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