Hyde Amendment

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.[1][2] Before the Hyde Amendment took effect, an estimated 300,000 abortions were performed annually using taxpayer funds.[3]

This article is about the abortion-funding amendment. For the unrelated 1997 amendment, see Hyde Amendment (1997).

The original Hyde Amendment was passed in 1976 on September 30 by the House of Representatives with a 312–93 vote to override the veto of a funding bill for the Department of Health, Education, and Welfare (HEW).[4][5][6][7] It was named for its chief sponsor, Republican Congressman Henry Hyde of Illinois.[3] 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,[8] 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.[3] 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."[9] 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.[10] 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.[11]

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.[1][2] As of 2016, Medicaid currently serves approximately 15.6 million women in the United States, including 1 in 5 women of reproductive age (women aged 15–44).[12][13] In 2018, 37% of Americans said that the practice of abortion should be illegal in most cases, while 58% said it should be legal in most cases, results consistent with prior years.[14] A minority of U.S. adults take an absolutist position, that abortion should be either illegal (15%) or legal (25%) in all cases.[14] The Hyde Amendment itself was supported by 57% of voters and opposed by 36%, as of 2016.[15]

The 2016 Democratic platform marked the first time the party included an explicit call to repeal the Hyde Amendment in its platform.[16] 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."[17] The bill failed to pass the Senate and did not become law.

Background
Pro-life Congressman Henry J. Hyde

The Hyde Amendment was introduced by pro-life Congressman Henry J. Hyde and first passed by Congress in 1977, four 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.[13] 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.[3]

The Hyde Amendment has been reenacted every year since 1976, but exceptions have varied.[3]

For example, the 1978 Amendment presented new exceptions for rape survivors and incest cases.[13] 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.[18] 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.[13] 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.[3] 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.[18]

Later in Williams v. Zbaraz (1980), the United States Supreme Court upheld that states could constitutionally make their own versions of the Hyde Amendment,[13] and states/the federal government have no statutory or constitutional obligation to fund elective abortions.[19]

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.[12] 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.[13]

On January 24, 2017, the House voted to make the Hyde Amendment (H.R. 7) permanent. 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.[20] The bill failed to become law after it was never brought to a vote in the Senate.

Supporting arguments

Supporters of Hyde argue that it protects the conscience of taxpayers opposed to abortion.[21] Proponents of the amendment maintain that the Hyde Amendment is an enforcement of "religious liberty and conscience" of Pro-Life Americans who do not wish to financially support the act of abortion.[19]

Proponents of Hyde also point out the fact that it is supported by 57% of the American public and opposed by 36%, as of 2016.[15]

The Federalist argues that Hyde has saved the lives of 2 million fetuses, which are considered human beings in their view. [22]

An argument 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 argue that the reason many of them are unwilling to compromise on abortion and the Hyde Amendment is that a life is at risk and when the choice to have sex is consensual and not from rape, women should take responsibility for the consequences.[23]

Opposing arguments

Critics argue the Hyde Amendment disproportionately affects low-income women, women of color, younger women, and immigrants, as an estimated 42% of abortion recipients live below the poverty line.[24][25] 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. Eighteen to 33 percent of Medicaid-eligible women who want abortions have been forced to give birth because they live in states that do not provide funding.[26][27]

Opponents also argue that people should be legally allowed to make their own choices about their bodies, and have access to the resources necessary to execute those choices. With the Hyde Amendment in effect, 60% of Planned Parenthood's 2.4 million patients cannot use public health aid for abortion care.[28]

Effects and implications of the Hyde Amendment

The Hyde Amendment restricts abortion coverage for federally-funded healthcare recipients, specifically women enrolled in Medicare and Medicaid, Native American women, U.S. servicewomen and veterans, women in Peace Corps, female federal employees, D.C. women residents, and women in immigration detention facilities and prisons.[29] The Hyde Amendment does not preclude women who receive healthcare through the U.S. government the option of paying for the procedure out of pocket. According to a 2014 national survey of abortion patients, women in states without Medicaid coverage of abortion were three times as likely to pay for their abortions out of pocket and five times as likely to rely on financial assistance from an abortion fund compared to women in states with Medicaid coverage.[30]

State actions
States that fund abortions
  State funds abortions voluntarily
  State funds abortions under court order

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.[31]

Even with the passage of the Hyde Amendment, some 17 states have a policy to use their own Medicaid funds to pay for abortion care beyond the Hyde Amendment requirements, and an estimated 20% of abortions are paid through Medicaid.[32][33]

There are currently 16 states who use their own state funds to pay for elective 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, and Washington.[34]

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.[35]

Currently, 15 states restrict coverage in accordance with the Hyde Amendment. 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.[34] In Iowa, Mississippi, and Virginia, a provision has been made for the case of fetal impairment.[34]

Further developments

Stupak-Pitts 2010

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,[36] 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.[37]

Hillary Clinton 2016

The 2016 Democratic platform marked the first major political party platform to include an explicit call to repeal the Hyde Amendment.[16] 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.[38]

Hillary Clinton advocated for a repeal of the Hyde Amendment throughout her 2016 Presidential campaign.[15] 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.[39] 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.[40]

2018

In 2018, Republicans proposed adding the Hyde Amendment to the Affordable Care Act in the 2018 spending bill in exchange for increased funding to reduce insurance premiums and adding reinsurance. However, this was rejected by Democrats.[41] Former Speaker Paul Ryan had said that he would not bring measures to the floor on reducing ACA premiums without adding the Hyde Amendment language.[42]

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See also

References
  1. "Abortion Funding Ban Has Evolved Over The Years". NPR.org. Retrieved March 10, 2019.
  2. "Archived copy". Archived from the original on March 7, 2016. Retrieved February 23, 2016.CS1 maint: archived copy as title (link)
  3. Rovner, Julie (December 15, 2009). "Abortion Funding Ban Has Evolved Over The Years". National Public Radio Inc. Retrieved June 7, 2019.
  4. Flood, Daniel J. (September 30, 1976). "H.R.14232 - 94th Congress (1975-1976): An Act making appropriations for the Departments of Labor, and Health, Education, and Welfare, and related agencies, for the fiscal year ending September 30, 1977, and for other purposes". www.congress.gov. Retrieved July 10, 2019.
  5. "House overrides veto of HEW funding bill". Eugene Register-Guard. (Oregon). UPI. September 30, 1976. p. 1A.
  6. "Labor-HEW bill forced into law over Ford veto". Toledo Blade. (Ohio). Washington Post. October 1, 1976. p. 1.
  7. "Congress overrides veto, to adjourn". Spokesman-Review. (Spokane, Washington). Associated Press. October 1, 1976. p. 1.
  8. New York Times, November 27, 1977, IV, 4
  9. See, e.g., Pub.L. No. 101-166, § 204, 103 Stat. 1159, 1177 (1989).
  10. Pub.L. No. 103-112, 107 Stat. 1082 (1993). Uscode.house.gov
  11. Id. § 509, 107 Stat. at 1113 (the 1994 Hyde Amendment).
  12. "Hyde Amendment". Plannedparenthoodaction.org. Retrieved April 16, 2017.
  13. "Access Denied: Origins of the Hyde Amendment and Other Restrictions on Public Funding for Abortion". American Civil Liberties Union. Retrieved April 13, 2017.
  14. "Public Opinion on Abortion". Pew Research Center. Retrieved February 27, 2019.
  15. Haberkorn, Jennifer (October 26, 2016). "POLITICO-Harvard poll: Clinton voters eager to scrap Hyde Amendment". Politico Magazine. Retrieved June 7, 2019.
  16. "DNC Platform Includes Historic Call to Repeal Anti-Choice Hyde Amendment". Democracy Now!. June 27, 2016. Retrieved July 27, 2016.
  17. "House Votes to Make Hyde Amendment Permanent". Speaker.gov. January 24, 2017. Retrieved April 11, 2017.
  18. Shimabukuro, Jon O. (October 13, 2016). "Abortion: Judicial History and Legislative Response" (PDF). Congressional Research Service.
  19. "Four Things You Need To Know About the Hyde Amendment & Federally Funded Abortion | American Center for Law and Justice". American Center for Law and Justice. August 5, 2016. Retrieved April 13, 2017.
  20. "House Votes to Make Hyde Amendment Permanent". Speaker.gov. January 24, 2017. Retrieved April 16, 2017.
  21. "'We are a pro-life Congress': House votes to make Hyde amendment permanent". TheBlaze. January 24, 2017. Retrieved April 21, 2017.
  22. Grossu, Ariana (September 30, 2016). "The Hyde Amendments Has Saved 2 Million Lives". The Fedealist. Retrieved June 7, 2019.
  23. Bandow, Doug. "The Democrats Go Full Anti-Life | The American Spectator | Politics Is Too Important To Be Taken Seriously". The American Spectator. Retrieved May 2, 2020.
  24. "Characteristics of U.S. Abortion Patients, 2008". Guttmacher Institute. January 28, 2016. Retrieved June 14, 2019.
  25. "Hyde Amendment". www.plannedparenthoodaction.org. Retrieved May 2, 2020.
  26. "Five Facts You Should Know About the Hyde Amendment | BillMoyers.com". BillMoyers.com. Retrieved April 11, 2017.
  27. "Whose Choice? How the Hyde Amendment Harms Poor Women" (PDF). Center for Reproductive Rights.
  28. "Hyde Amendment". www.plannedparenthoodaction.org. Retrieved May 2, 2020.
  29. "Legislative Restrictions on Access to Abortion". NARAL Pro-Choice America. Retrieved April 11, 2017.
  30. Jerman, J.; Jones, R.K.; Onda, T. (May 2016). "Characteristics of U.S. abortion patients in 2014 and changes since 2008". Guttmacher Institute. Retrieved August 27, 2019.
  31. "The Hyde Amendment Has Perpetuated Inequality in Abortion Access for 40 Years - Center for American Progress". Center for American Progress. Retrieved April 21, 2017.
  32. "Characteristics of U.S. Abortion Patients, 2008" (PDF). Guttmacher.org. Retrieved June 14, 2019.
  33. "Medicaid Funding of Abortion". Guttmacher Institute. December 21, 2016. Retrieved March 27, 2019.
  34. "State Funding of Abortions Under Medicaid". The Henry J. Kaiser Family Foundation. April 18, 2017. Retrieved April 19, 2017.
  35. Francis Roberta W. "Frequently Asked Questions". Equal Rights Amendment. Alice Paul Institute. Archived from the original on April 17, 2009. Retrieved September 13, 2009.
  36. "November 7, 2009 CONGRESSIONAL RECORD—HOUSE H12921". Frwebgate.access.gpo.gov. Retrieved June 14, 2019.
  37. Hall, Mimi (March 25, 2010). "Both sides of abortion issue quick to dismiss order". USA Today.
  38. Lucas, Fred (July 25, 2016). "Democratic Platform Topples Consensus on Abortion". The Daily Signal. Retrieved April 17, 2017.
  39. "The Abortion Policy Hillary Clinton Keeps Talking About, Explained". ThinkProgress. January 12, 2016. Retrieved April 17, 2017.
  40. "Kaine Now Backs Lifting Abortion Funding Ban". NBC News. Retrieved April 17, 2017.
  41. News, Julie Rovner, Kaiser Health (March 21, 2018). "Clash Over Abortion Hobbles A Health Bill. Again. Here's How". Washington Post. ISSN 0190-8286. Retrieved March 22, 2018.
  42. Cunningham, Paige Winfield (March 8, 2018). "Analysis | The Health 202: Congress still can't agree on stabilizing Obamacare marketplaces". Washington Post. ISSN 0190-8286. Retrieved March 22, 2018.
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