PRICED
Harris v. McRae
448 U.S. 297 (1980) · 1980
The clearest statement in American law that a right and the ability to use it are different objects.
“Although government may not place obstacles in the path of a woman's exercise of her freedom of choice, it need not remove those not of its own creation, and indigency falls within the latter category.”
The Ruling
5–4: The Hyde Amendment is constitutional. A government that funds childbirth is not required to fund medically necessary procedures it declines to cover, and poverty is not an obstacle of the government's making.
The Personhood Argument Not Made
This case states the execution gap almost as a rule of law: a right restrains what the state may do to you, and says nothing about whether you can reach it. The Court is explicit that the obstacle is real and simply not the government's problem. Two people hold the identical right; only one holds a version that operates. The other's is intact, formal, and inert.
The Execution Gap Created
The entitlement is unchanged on paper for every person in the country. Its exercise is conditioned on money. Rather than being denied, the right is priced — and a right that must be purchased is a right that the poorest holder does not functionally have.
Primary sources & research
Related cases
Part of The Personhood Prism, the companion to The Execution Gap by Thomas William Hornig. See all personhood cases →