The Dirty Truth about the Politics of Publicly Funded Abortion

Reproductive health advocates agree that the Hyde Amendment is the single most damaging policy in terms of US women’s access to abortion services because it prevents low-income women from obtaining abortions and has spawned a host of similar restrictions on publicly funded abortion. The Guttmacher Institute estimates that one in four women enrolled in the Medicaid program who wants to terminate a pregnancy can’t obtain an abortion because of the Hyde Amendment. Despite the damage done by Hyde and its progeny, politicians of all stripes have consistently whiffed when it comes to repealing Hyde, putting politics over women’s lives again and again—as the sorry political history of public funding of abortion shows.

It took only a few years for the exuberance over the Roe v. Wade decision to subside into the realization that, even with a constitutionally protected right to abortion, women’s access could still be threatened by other avenues—especially if they lacked the resources to afford an abortion. The Catholic hierarchy and its antiabortion allies tried in the years immediately after Roe to get Congress to pass a constitutional amendment to ban abortion, but they failed to win popular support for the measure—even from Catholics. In 1976, Robert Lynch, head of the National Committee for a Human Life Amendment (NCHLA), the Catholic bishops’ antiabortion lobby, admitted that the “overwhelming majority of Catholics” were apathetic about recriminalizing abortion.

So, opponents of legal, safe abortion sought another route to circumvent popular support for abortion rights. Henry Hyde, a first-term conservative Catholic congressman from Illinois, introduced an amendment to the 1976 Labor/Health and Human Services Appropriations Bill to ban the use of federal funds to pay for abortion. The rider cut off funding for abortion under the Medicaid program, meaning that low-income women would no longer have access to abortion. At the time, 300,000 abortions—one-third of all legal abortions—were being funded by Medicaid.

It was the beginning of a strategy to chip away at abortion access by any means possible, as Hyde himself admitted in a congressional debate:

“I certainly would 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.”

Advocates of legal abortion were taken off guard, and the bill passed the Democratically controlled House of Representatives. The Senate, which was also controlled by Democrats, initially refused the amendment. But senators acquiesced when an exception was added for the life of the woman, believing that the Supreme Court would strike down the measure.

When the court upheld the funding restrictions, prochoice forces mobilized to stop it from passing again in 1977. The result was a six-month standoff in Congress over the amendment, as opponents, including Democratic senator Birch Bayh and Republican senator Bob Packwood, battled Hyde and his allies. Hyde worked closely with Mark Gallagher of the NCHLA to lobby Republicans and Democrats on the conference committee deciding the fate of the bill (eight of the 11 conferees were Catholic). “Every time the Senate conferees make a compromise offer, Mr. Gallagher quietly walks to the conference table to tell a staff aid to the 11 House conferees whether the proposal is acceptable to the bishops. His recommendations invariably are followed,” the New York Times reported.

In addition to the influential lobbying of the NCHLA, the Hyde Amendment also received a boost from Democratic president Jimmy Carter, who was opposed to abortion despite his party’s official support for abortion rights. During his third debate with President Gerald Ford in 1976 he said, “I personally don’t believe that the Federal Government ought to finance abortions.”

When asked the following year in an NBC interview whether it was fair that poor women would be denied abortions, Carter replied that “there are many things in life that are not fair; that wealthy people can afford and poor people can’t.” According to Harvard Law professor Laurence Tribe, Carter’s support of the Hyde Amendment was pivotal: “By sending approving signals on the Hyde Amendment … the Carter White House did much to legitimize what had not previously been established as a legitimate political position.” Even for those who generally supported legal abortion, backing the Hyde Amendment was a way to demonstrate their moderation on the issue while acknowledging a “growing anti-welfare sentiment,” notes Tribe.

Facing an ascendant prolife movement and a president who backed funding restrictions, the best the Senate could do was get an amendment with exceptions for the life of a woman; for health conditions in which two doctors certified that the woman faced “severe and long-lasting” damage; and in cases of rape and incest that were reported to law enforcement authorities. But even these limited exceptions were dropped when President Ronald Reagan and the increasingly antichoice Republican Party took control of the White House and Senate in 1980, leaving life endangerment as the sole exception.

With the Religious Right and social conservatives on the political offensive, Hyde-like restrictions were placed on a variety of programs that received public funding: the TRICARE health insurance program for military members and their dependents in 1979, and Peace Corps volunteers the same year; the Federal Employees Health Benefits Program in 1983; women in federal prisons in 1987; and poor women in the District of Columbia in 1989. Even Native American women receiving care through the Indian Health Service weren’t exempt. Prochoice forces in Congress tried several times during the administration of George H. W. Bush to add exceptions for rape and incest, but Bush vetoed the measures.

It wasn’t until Bill Clinton was running for the presidency that a serious effort was made to reverse the Hyde Amendment. As the Democratic candidate, Clinton campaigned on making abortion “safe, legal and rare.” But he also promised during the campaign to get rid of the Hyde Amendment. With control of the House and the Senate, it finally seemed that the 16-year-old amendment might be banished when Clinton announced plans to put forth a budget that didn’t include the amendment. But the effort failed when Henry Hyde shrewdly rounded up enough Democrats to support a slightly less restrictive version of the amendment that allowed federally funded abortion in cases of rape and incest, as well as life endangerment. “I didn’t think the votes were there anymore for a straight ban on abortion funding,” acknowledged Hyde.

In 1997, when the Democrats lost control of Congress, the Republican Congress adopted language applying the Hyde Amendment to Medicaid-managed care plans and to the State Children’s Health Insurance Program. The following year, it applied the Hyde Amendment to Medicare, banning federally funded abortions for disabled women except in cases of life endangerment, rape or incest.

The Republican-controlled Congress also narrowed the life exception in 1997 to cases “where a woman suffers from a physical disorder, physical injury, or physical illness, including a life-endangering physical condition caused by or arising from the pregnancy itself, that would, as certified by a physician, place the woman in danger of death unless an abortion is performed,” creating the version of the Hyde Amendment that’s still in effect.

With the dawn of the 21^st century, there was little hope that the Hyde Amendment would be overturned. There was no question that GOP candidate and Texas governor George W. Bush would rebuff any efforts to overturn federal funding restrictions. But Democratic nominee Sen. Al Gore was also a longtime supporter of the Hyde Amendment. As a congressman from 1977 through 1984, he repeatedly opposed Medicaid financing of abortions for poor women, a stance he maintained as senator. According to the New York Times, in 1987 he wrote to a constituent: “During my 11 years in Congress, I have consistently opposed federal funding for abortions. In my opinion, it is wrong to spend federal funds for what is arguably taking of a human life.”

As the election approached, Gore tried to have it both ways on abortion funding restrictions, downplaying his previous support for the Hyde Amendment while at the same time prevaricating on his current position. As William Saletan notes:

“[Gore] ducked a Des Moines Register survey question about abortion funding. An aide said Gore had long opposed the practice because ‘government should not be involved in those decisions.’ While Gore’s media advisor claimed that Gore endorsed Medicaid-funded abortions, his press secretary said that Gore supported current law allowing Medicaid to pay for the procedure in cases of rape or incest. That language, while allowing liberals to infer that Gore would go further, suggested to conservatives that he wouldn’t.”

Once in office, Bush further tightened the Hyde Amendment by issuing an executive order that stipulated that Hyde restrictions applied to RU-486, the medical abortion pill, under the Medicaid program.

Similarly, in the election of 2004, there was little movement on Hyde. Democratic nominee Sen. John Kerry opposed the Hyde Amendment and had consistently voted against it. But he was dogged by criticisms from prominent Catholic bishops that good Catholics couldn’t vote for him because of his prochoice stance, and pressured from some in the Democratic Party to take a moderate stance on abortion, so he didn’t make overturning Hyde a priority.

It wasn’t until Sen. Barack Obama ran for president in 2008 that a Democratic candidate again made Hyde a campaign issue. Obama said he supported eliminating the Hyde Amendment; in a reproductive health questionnaire for RH Reality Check, his staff provided the following answer to the question of whether he supported the Hyde Amendment:

“Obama does not support the Hyde Amendment. He believes that the federal government should not use its dollars to intrude on a poor woman’s decision whether to carry to term or to terminate her pregnancy and selectively withhold benefits because she seeks to exercise her right of reproductive choice in a manner the government disfavors.”

But once in office, Obama backed down from attempts to roll back Hyde, as well as other proactive prochoice initiatives like the Freedom of Choice Act, as he directed his political capital towards passage of a national healthcare reform plan. Obama had said that any national health plan he developed as president would include “all essential services, including reproductive health care,” which his staff confirmed included abortion. But the issue took an ominous turn when the US Conference of Catholic Bishops and its allies began demanding Hyde-like restrictions on abortion services in any basic benefits package or public plan, advocating that health reform remain “abortion neutral.”

With the bishops lobbying fiercely on the issue and ginning up concern among allies on the Christian Right, Obama caved. In a July 2009 interview with CBS Evening News, he cast abortion coverage—not as an essential health service—but a political distraction:

“As you know, I’m pro-choice. But I think we also have a tradition of, in this town, historically, of not financing abortions as part of government funded health care. Rather than wade into that issue at this point, I think that it’s appropriate for us to figure out how to just deliver on the cost savings, and not get distracted by the abortion debate at this station.”

By the fall, Obama officially announced that healthcare reform would maintain the ban on federal funding. Other Democrats signed on to the “status quo” position. “I also think in this bill it’s important to keep a firewall between private funds and public funds, and that’s been my position. In other words, keep the status quo,” said Sen. Barbara Boxer of California, according to Catholic News Service.

But even that wasn’t enough to mollify critics of the plan. Democratic congressman Bart Stupak rounded up a bloc of 40 prolife Democrats who refused to vote for Obama’s reform plan unless it contained a measure preventing any federal subsidy money from going to private health plans that offered abortion coverage—even if the coverage was paid for with private funds. This would effectively force plans that wanted to participate in health insurance exchanges to drop abortion coverage.

Both Democratic and Republican opponents of abortion argued that it was impossible to adequately segregate public and private funding streams. “[T]he plan itself will be subsidizing abortion on-demand, with taxpayer funding comingled,” Republican congressman Chris Smith of New Jersey remarked to the Weekly Standard.

House Democratic leaders acquiesced to the Stupak Amendment to ensure passage of the healthcare reform plan. When the Senate refused to go along with the measure, Obama broke the stalemate by issuing an executive order stipulating that no federal funds could go to abortion services “consistent with a long-standing Federal statutory restriction that is commonly known as the Hyde Amendment” and requiring the segregation of public and private funds paid into exchange plans.

Reproductive health advocates argued that the outcome was disastrous for women’s reproductive health, as it effectively normalized Hyde restrictions throughout the healthcare system. “Compounding this specific policy loss was the profound ideological loss of normalizing the exclusion of abortion from health insurance,” noted scholar and activist Marlene Gerber Fried.

I said at the time, “The Congressional Democratic leadership allowed the antichoice lobby to amend the final legislation with the result that it will be almost impossible to get coverage for abortions, even with one’s own money. The Democratic Party has a prochoice platform, yet its leaders chose to deal away women’s rights to pass a law that is supposed to improve healthcare.”

With the Hyde Amendment coming up on its 40^th anniversary, this very longevity, resulting from lawmakers’ failure to take a principled stand against the policy, gives it a continued legitimacy. Gerber Fried writes that the “persistence of the Hyde Amendment” has “created a series of disastrous roadblocks to inclusive reproductive health coverage in other legislation.”

In 2012, when the Republican-controlled Congress and Obama were locked in a showdown over the budget, the administration again threw poor women under the bus, agreeing to the Republican demand that Medicaid funding for abortions in the District of Columbia again come packaged with Hyde restrictions—restrictions that Obama had just overturned. “John [Boehner], I will give you D.C. abortion. I am not happy about it,” said Obama, according to the Washington Post.

And it wasn’t just DC. Inspired by the success in limiting access to abortion under the Affordable Care Act (ACA), a number of states have moved to extend Hyde-like limitations to private coverage of abortion. Today, half of all states restrict abortion coverage in plans offered through the state insurance exchanges created by the ACA to some combination of Hyde restrictions, according to the Guttmacher Institute.

And in the spring of 2015, congressional Republicans attempted to add restrictions to an anti-human trafficking bill that would prevent a special victims fund not financed by taxpayers from being used for abortion. “The application of the Hyde Amendment when zero taxpayer dollars are involved is unprecedented. It represents a very significant change in federal policy,” noted Sen. Patrick Leahy of Vermont in a floor speech.

The eventual compromise of splitting the fund into two streams—taxpayer money and criminal fines paid by traffickers—prevented the expansion of the Hyde Amendment into new funding streams. But it maintained the abortion limitations on trafficking victims’ healthcare received through community health centers, demonstrating once again that when it comes to Hyde politics, the only winners are politicians, and the real losers are some of the nation’s most vulnerable women.

The history of Hyde tells a clear and sorry story. Unless those of us from the reproductive health community recommit to fearless advocacy on this issue, we will not foster or develop the sort of brave political leaders we so badly need to champion the end—once and for all—of Hyde.