In U.S. politics, the Hyde Amendment is a legislative provision barring the use of federal funds to pay for abortion except to save the life of the woman, or if the pregnancy arises from incest or rape. Legislation, including the Hyde Amendment, generally restricts the use of funds allocated for the Department of Health and Human Services and consequently has significant effects involving Medicaid recipients. Medicaid currently serves approximately 6.5 million women in the United States, including 1 in 5 women of reproductive age (women aged 15–44).
The original Hyde Amendment was passed on September 30, 1976 by the House of Representatives, by a 207-167 vote. It was named for its chief sponsor, Republican Congressman Henry Hyde of Illinois. The measure represents one of the first major legislative gains by the United States pro-life movement, especially the National Committee for a Human Life Amendment led by lobbyist Mark Gallagher, after the striking-down of anti-abortion laws following the 1973 Supreme Court case Roe v. Wade. Congress subsequently altered the Hyde Amendment several times. The version in force from 1981 until 1993 prohibited the use of federal funds for abortions “except where the life of the mother would be endangered if the fetus were carried to term.”
On October 22, 1993, President Clinton signed into law the Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act, 1994. The Act contained a new version of the Hyde Amendment that expanded the category of abortions for which federal funds are available under Medicaid to include cases of rape and incest.
The 2016 platform marked the first time the Democratic platform had an explicit call to repeal the Hyde Amendment. On January 24, 2017, the House of Representatives passed H.R. 7, which, according to the press office of Speaker Paul Ryan, "makes the Hyde amendment permanent."
Amendment Content and Language
The Hyde Amendment is now included as a sub-section of a larger piece of legislation, The No Tax Payer Funding for Abortion and Abortion Insurance Full Disclosure Act of 2017. Although the exact language of the Hyde Amendment has changed over the years, the 2017 appropriations bill for the Departments of Labor, Health and Human Services, and Education contained the following limitations on federal spending for abortion that is typical of Hyde Amendment language generally:
TITLE I--PROHIBITING FEDERALLY FUNDED ABORTIONS
(Sec. 101) This bill makes permanent the prohibition on the use of federal funds, including funds in the budget of the District of Columbia, for abortion or health coverage that includes abortion. The prohibitions in this bill, and current prohibitions, do not apply to abortions in cases of rape or incest, or where a physical condition endangers a woman's life unless an abortion is performed.
Abortions may not be provided in a federal health care facility or by a federal employee.
TITLE II--APPLICATION UNDER THE AFFORDABLE CARE ACT
(Sec. 201) This bill amends the Internal Revenue Code and the Patient Protection and Affordable Care Act to prohibit qualified health plans from including coverage for abortions. (Qualified health plans are sold on health insurance exchanges, are the only plans eligible for premium subsidies and small employer health insurance tax credits, and fulfill an individual's requirement to maintain minimum essential coverage.) Currently, qualified health plans may cover abortion, but the portion of the premium attributable to abortion coverage is not eligible for subsidies.(Sec. 202) The bill revises notification requirements for qualified health plans regarding abortion coverage and charges for abortion coverage.
The Hyde Amendment was introduced by pro-life Congressman Henry J. Hyde and first passed by Congress in 1977, three years after Roe vs. Wade. Implementation of the initial amendment was blocked for almost a year by an injunction in the McRae v. Matthews case. During this case, the Reproductive Freedom Project, the Center for Constitutional Rights, and Planned Parenthood collectively represented a pregnant Medicaid recipient and health care providers who challenged the Hyde Amendment. The United States Supreme Court vacated the injunction in August 1977, leading abortions financed by federal Medicaid to drop from 300,000 per year to a few thousand. Other bans were modeled after the Hyde Amendment, extending to other annual spending bills in the late 1970s and early 1980s. This eventually led federal funds to be banned in federal worker health plans, women in federal prisons, women in the military, peace corps volunteers, and international family planning programs that use non-U.S. funds to perform or advocate for abortion.
The Hyde Amendment has been reenacted every year since 1976, but exceptions have varied. For example, the 1978 Amendment presented new exceptions for rape survivors and incest cases. However, in 1980, the Supreme Court upheld the constitutionality of the original Hyde Amendment language with a 5-4 vote in Harris v. McRae. The majority found that the Hyde Amendment did not violate the Establishment Clause under the First Amendment or due process/equal protection provided by the Fifth Amendment. This case decided the single exception for the Amendment would be in cases where the woman's life is endangered. This decision was upheld from fiscal years 1981-1993. While the Supreme Court came close to reintroducing exceptions for cases of rape or incest in Webster v. Reproductive Health Services of Missouri, President George H.W. Bush succeeded in vetoing the bill despite an attempted House override. This decision left the Amendment with the sole exception of concern being endangered life of the mother. The language was not altered until the Clinton Administration in 1993. At this time, the Hyde Amendment was once again expanded to include exceptions for rape and incest cases.
Later in William v. Zbaraz, the United States Supreme Court upheld that states could constitutionally make their own versions of the Hyde Amendment, and states/the federal government have no statutory or constitutional obligation to fund medically necessary abortions.
Currently, 17 states extend abortion coverage to women enrolled in Medicaid through their own budgets, and 6 states extend abortion coverage when a woman's health is at risk. The remainder of the country abides by the Hyde Amendment. South Dakota expands on the Hyde Amendment and restricts funding even in cases of rape or incest. As of 1994, federal law mandates all states to pay for abortion cases involving rape or incest, proving South Dakota's actions to be problematic.
On January 24, 2017, the House voted to make the Hyde Amendment (H.R. 7) permanent. In response, Speaker Paul Ryan (R-WI) stated that "We are a pro-life Congress," and he reaffirmed the government's commitment to restricting tax money to funding abortions.
Support for the Amendment
One of the primary arguments surrounding the Hyde Amendment is that of "morality" and the discussion as to whether or not taxpayer money should be used for abortion services. There are many Americans who believe that federal money should not be used to fund abortion practices which was one of the underlying reasons that the bill has had so much support from the start. Proponents of the amendment assert that the Hyde Amendment is an enforcement of "religious liberty and conscience" of Pro-Life Americans who do not wish to support (either fiscally or morally) the act of abortion.
Another argument commonly made by supporters of the Hyde Amendment is that the amendment itself does not prevent women from seeking out an abortion because it does not criminalize abortions themselves, but simply withholds government money from such programs. Supporters would claim that a women's lack of access to such services on the grounds of fiscal matters is "the product not of governmental restrictions on access to abortions, but rather of her indigency". Simply put, this means that supporters of the bill claim that the Hyde Amendment does not prevent a woman from obtaining an abortion, but it prevents the entitlement of government funding to women who wish to have one. Advocates of the Hyde Amendment further state that this ban of federal funding for abortions does not interfere with a woman's freedom to seek out an abortion since the Amendment does not legally outlaw the medical service.
Effects and Implications of the Hyde Amendment
Because the Hyde Amendment bans the use of federal funding for abortions in most cases, the legislative provision restricts abortion access for women who receive their healthcare through the United States government. The affected women include: women enrolled in Medicare and Medicaid, Native American women, U.S. servicewomen and veterans, Peace Corps volunteers, federal employees, women who live in Washington, D.C., and women in immigration detention facilities and prisons.
Studies show that low-income women, women of color, young women, and immigrants disproportionately rely on Medicaid for health care coverage. 15.6 million women (ages 19 to 64) have Medicaid coverage. Additionally, Medicaid provides coverage to 1 in 5 women of reproductive age (15-44). Due to the structural inequalities in the United States that perpetuate the link between race, sex and economic inequality, women of color disproportionately comprise the majority of enrollment with Medicaid. Compared to the 14% of white women enrolled, 30% of African American women and 24% of Hispanic women are in enrolled in Medicaid.
The Hyde Amendment does not criminalize abortion; the women who receive healthcare through the U.S. government have the option of paying for the procedure out of pocket. However, about 42% of women who have abortions live below the poverty line. Therefore, these women are forced to either forgo paying for necessities - food, rent, electricity, etc. - in order to pay for the procedure, or carry out the pregnancy to term. Since the passage of the Hyde Amendment, more than one million women have not been able to afford abortions and so have had to carry unwanted pregnancies to term.
The Hyde Amendment has been criticized for being discriminatory due to the disproportionate effect on women who are unable to afford private insurance or the costs of the abortion itself. Opponents of the amendment argue that the Hyde Amendment "creates more barriers to women lifting themselves out of poverty." The discriminatory nature of the legislation was acknowledged even by the creator, Henry J. Hyde, who once said, "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."
Currently, fifteen states restrict coverage in accordance with the Hyde Amendment. However, despite widespread efforts to further restrict abortion coverage at the state level, some states are striving to ensure coverage of abortion services in the face of funding bans. Consequently, the cutoff of federal Medicaid funds prompted some states to provide public funding for abortion services from their own coffers. Over time the number of states doing so has gradually expanded, either through legislation or consequent to judicial rulings mandating equal access to health care for low-income women.
There are currently 17 states who use their own state funds to medically necessary abortions and similar services. These states include Alaska, Arizona, California, Connecticut, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Montana, New Jersey, New Mexico, New York, Oregon, Vermont, Washington, and West Virginia.
Specific stipulations have been put in place by some state governments. Some of these provisions remove restrictions that have been put in place at the federal level while others are used to further extend the reach that Hyde Amendment has put into place. For example, In Iowa, in order to receive an abortion under the Medicaid program, approval must be given from the governor. In Iowa, Mississippi, and Virginia, a provision has been made for the case of fetal impairment.
The 2016 platform marked the first time the Democratic platform had an explicit call to repeal the Hyde Amendment. The platform states:
"We believe unequivocally, like the majority of Americans, that every woman should have access to quality reproductive health care services, including safe and legal abortion—regardless of where she lives, how much money she makes, or how she is insured. We believe that reproductive health is core to women’s, men’s, and young people’s health and well being. We will continue to stand up to Republican efforts to defund Planned Parenthood health centers, which provide critical health services to millions of people. We will continue to oppose—and seek to overturn—federal and state laws and policies that impede a woman’s access to abortion, including by repealing the Hyde Amendment."
Hillary Clinton advocated for a repeal of the Hyde Amendment throughout her 2016 Presidential campaign. She was quoted as saying, “Any right that requires you to take extraordinary measures to access it is no right at all” at a campaign rally in New Hampshire. The Democratic Vice Presidential candidate Tim Kaine reportedly stood with his running mate on the issue, despite formerly having been a supporter of the Hyde Amendment.
However, despite the efforts of Hillary Clinton and the Democratic party, recent actions have given roots to the Amendment. Much of the current discourse concerning the Hyde Amendment stems from the recent passage of the H.R. 7 No Taxpayer Funding for Abortion and Abortion Insurance Full Disclosure Act of 2017. The legislation was passed by the House of Representatives, and if passed by the Senate as well as signed by the president, would give substantial support for the validity of the Hyde Amendment as permanent law. In particular, supporters of the legislation claim that it saves lives and protects the conscience of taxpayers opposed to abortion. However, opponents argue that it discriminates against low-income women by denying them access to medical procedure.
The Stupak–Pitts Amendment, an amendment to the Affordable Health Care for America Act, was introduced by Democratic Rep. Bart Stupak of Michigan. It prohibits use of Federal funds "to pay for any abortion or to cover any part of the costs of any health plan that includes coverage of abortion" except in cases of rape, incest or danger to the life of the mother, and was included in the bill as passed by the House of Representatives on November 7, 2009. However, the Senate bill passed by the House on March 21, 2010 did not contain that Hyde Amendment language. As part of an agreement between Rep. Stupak and President Obama to secure Stupak's vote, the President issued Executive Order 13535 on March 24, 2010 affirming that the Hyde Amendment would extend to the new bill.
- Abortion in the United States
- Helms Amendment, an amendment from 1973 that restricts US federal funding for abortion overseas
- Types of abortion restrictions in the United States
- Abortion Funding Ban Has Evolved Over The Years
- The Hyde Amendment at 35: a new abortion divide
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- New York Times, November 27, 1977, IV, 4
- See, e.g., Pub.L. No. 101-166, § 204, 103 Stat. 1159, 1177 (1989).
- Pub.L. No. 103-112, 107 Stat. 1082 (1993).
- Id. § 509, 107 Stat. at 1113 (the 1994 Hyde Amendment).
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