The Hyde Amendment at 35: a new abortion divide
On March 21, 2010, President Obama made the final move to secure the health reform law’s passage: He issued an executive order barring federal funding of abortion under the Affordable Care Act. The executive order expressly stated that health reform would “maintain current Hyde Amendment restrictions,” referencing the law that bars federal funding for abortions. The order won over a handful of reticent Congressional Democrats who opposed abortion rights but wanted to see health reform pass.
Abortion rights supporters have long rallied against the Hyde Amendment; they say the law, first passed in 1976 and reauthorized every year since, places an undue burden on women who rely on government programs like Medicaid for health care. Abortion opponents strongly support it: the Hyde Amendment, they contend, sets up an appropriate boundary between private and public dollars for a controversial procedure.
But as the Hyde Amendment hit its 35th anniversary Friday, both sides of the abortion debate could agree on one thing: health reform quietly transformed Hyde’s funding restrictions into a new status quo. Lawmakers across the political spectrum came to support federal abortion-funding bans as neutral, neither enabling or restricting access, which abortion rights supporters describe as a major setback.
“Unfortunately, this idea that there shouldn’t be public insurance coverage for abortion got cemented in the public’s mind,” says Jessica Arons, director of the women’s health and rights program at the Center for American Progress. “Politicians have gotten used to saying that.”
Congress first passed the Hyde Amendment, named for its sponsor Rep. Henry Hyde, three years after the Supreme Court affirmed the legality of abortion in Roe v. Wade. The biggest impact is on Medicaid, which cannot provide abortions except in cases of rape, incest or to save the life or health of the mother.
The landscape around Hyde shifted during the health reform battle, when a near-consensus developed that no federal funds would go toward abortion. President Obama vocally endorsed that position. “I’m pro-choice, but I think we also have the tradition in this town, historically, of not financing abortions as part of government-funded health care,” he told CBS News during the health reform debate. A CNN poll in November 2009 found that 61 percent of Americans favor banning public funding for abortions.
Even some of the staunchest supporters of abortion rights endorsed maintaining the Hyde Amendment as a means to passing the health reform law. “]M]y whole thing is that I want to see the status quo preserved, which is the Hyde idea,” Sen. Barbara Boxer (D-Calif.) told reporters during the health reform debate. She went on to describe the idea of barring federal funding of abortions as an “uneasy truce” between supporters and opponents of abortion rights.
That truce has become less easy since the health reform law passed. The 35th anniversary of the Hyde Amendment has supporters of abortion rights worried about the precedent that the health reform debate set for barring federal funding of abortion. “The debate put people in a box where we were saying ‘don’t worry, there won’t be taxpayer funding for abortion in this bill,” Arons said. “What pro-choice advocates have realized since then is we need to focus on health insurance that’s inclusive of all reproductive health needs.”
Marlene G. Fried made a similar point in a recent essay, “Hyde at 35: How One Law Continues To Divide a Movement,” where she argues that the health reform debate normalized the idea of barring federal funding for abortion.
“The persistence of the Hyde Amendment also created a series of disastrous roadblocks to inclusive reproductive health coverage in other legislation,” Fried, a professor at Hampshire College who both studies and supports the abortion rights movement, wrote. “Compounding this specific policy loss was the profound ideological loss of normalizing the exclusion of abortion from health insurance.”
Health reform also made the Hyde Amendment a mainstream election issue. Susan B. Anthony List, a group that opposes abortion rights, poured millions of dollars into billboards and television ads accusing Congressional Democrats of supporting tax-payer funded abortion.
“Health reform certainly made the issue electorally powerful,” says Susan B. Anthony List president Marjorie Dannenfelser. “You do not want a billboard saying you voted for tax payer funding for abortion. It wasn’t like that 10 or even five years ago.”
Abortion rights supporters concede that moving back to the environment prior to health reform is a challenge. Fried hopes that it will catalyze “new champions” to come forward on the issue. She’s already seen a bit of that. “It was sort of a wakeup call for activists,” she told me in a recent interview. “I’m heartened by what I’m seeing so far.”
Others aren’t so optimistic. Arons describes the process as “digging out of a hole” and a big challenge. “We have a lot of work to do,” she says. “I really can’t argue with that.”