Biden’s proposal is the first major threat to the Hyde Amendment since former president Bill Clinton, who introduced a Hyde-free budget in 1993, when Congress had strong Democratic majorities in both houses. It is also a significant shift for the president, who supported the amendment for decades.
Here’s more on the history of the amendment, what it does and what activists on both sides have to say about it.
The Hyde Amendment is a long-standing restriction that bans federal funding for most abortions. Named for then-Rep. Henry Hyde (R-Ill.), the rule was first passed in 1976, shortly after the Supreme Court’s landmark 1973 Roe v. Wade ruling. It is not a law, but a congressional “rider” tacked onto the Health and Human Services budget, which is renewed every year.
Because its constitutionality was immediately challenged, it wasn’t enforced until 1980, when it was upheld by the Supreme Court in a 5-to-4 decision. In the seven years between Roe v. Wade and the Hyde Amendment taking effect, Medicaid paid for around 300,000 abortions a year.
When it was first passed, Hyde only prevented people from using Medicaid to pay for abortions, but this ban has since expanded to other federal programs, such as Medicare, the Indian Health Service, the military’s Tricare program and the Federal Employees Health Benefits Program.
Because Medicaid pulls from both federal and state funds, it is possible for states to cover abortions with their own money, though most don’t.
While Hyde has been a mainstay of the Health and Human Services budget since then, it has varied in how restrictive it is, depending on the makeup of Congress. For example, it has always included exceptions for cases where the abortion is necessary to save the pregnant person’s life, but this hasn’t always been true for cases of rape or incest.
A rape and incest exception was included in 1980 but taken out the following year. This exception wasn’t included again until 1993, when Clinton, supported by strong Democratic majorities in both houses of Congress, threatened to take Hyde out of the budget altogether.
Activists on both sides of the issue have been anticipating the new budget for months.
Antiabortion activists have long championed the amendment, arguing that taxpayers should not be forced to pay for procedures that they morally object. They also say the Hyde Amendment, by making it harder to terminate a pregnancy, has saved lives.
“For more than four decades, the Hyde family of pro-life policies has kept American taxpayers out of the abortion business, with the Hyde Amendment itself saving nearly 2.5 million lives. The Biden budget throws that long-standing, bipartisan consensus out the window to fulfill a campaign promise to the radical abortion lobby,” Marjorie Dannenfelser, president of the Susan B. Anthony List, an antiabortion advocacy group, said in a statement.
But the amendment, frequently framed as a compromise between Democrats and Republicans, was never a compromise for abortion rights advocates, said Claire McKinney, an assistant professor at the College of William and Mary who studies reproductive politics.
“For a lot of reproductive rights organizations, it’s actually the first sign of real failure of protecting abortion rights,” McKinney said. “[It] made very clear that the state was going to take no obligation to make sure that women actually had access" to an abortion.
Abortion rights activists applauded Biden’s budget proposal.
“At a time when reproductive freedom is under unprecedented attack, and the legal right to abortion is hanging on by a tenuous thread, this critical step from the Biden administration is more important than ever,” said Christian LoBue, NARAL Pro-Choice America chief campaigns and advocacy officer, in a statement.
The new budget highlights the changing landscape of the abortion debate, McKinney said.
In 2008, she said, “this was not on the radar. And the idea that a president would be willing to stake his budget on the question of abortion would not even be entertained,” said McKinney.
This change reflects the ways abortion rights groups have shifted the way they talk about abortion, McKinney said. Rather than focusing on moral absolutes — “absolute liberty or absolute wrongness of abortion” — supporters of abortion rights have instead emphasized the impact abortion restrictions have on the people seeking them.
“For many low-income women, the lack of Medicaid coverage for abortion is effectively an abortion ban,” the Kaiser Family Foundation noted in a recent analysis.
Because of federal and state restrictions on abortion coverage, many abortion seekers pay out of pocket for their procedures. According to a 2014 study from the University of California at San Francisco’s Bixby Center for Global Reproductive Health that interviewed women who received abortions at 30 different geographically isolated clinics in the United States, 29 percent had to pay the full cost of their abortions. The rest relied on private insurance, state Medicare or other organizations, such as abortion funds.
Lifting the Hyde restrictions could ease the cost of paying for an abortion.
That messaging has proven effective, especially as Republican-controlled state legislatures continue restricting access to abortion, McKinney said. Now, more Democrats are willing to take a strong stance on abortion rights in response. This was especially apparent in the 2020 Democratic presidential primary, when several front-runners, including then-California Sen. Kamala D. Harris, vowed to strike the amendment.
Biden himself cited this when he explained his reversal on Hyde in 2019: “There was sufficient monies and circumstances where women were able to exercise that right, women of color, poor women."
“It was not under attack,” Biden said. “As it is now."
Republicans are expected to push back on Biden’s proposal and will probably reinstate the Hyde Amendment during budget negotiations.
Danny Weiss, director of the government affairs program at the Century Foundation, a progressive think tank, predicted a hard road ahead for the amendment’s opponents: Without a 60-vote majority, 10 Republicans would need to come out in favor of striking Hyde, or risk having the budget derailed by a filibuster.
Choosing between the Health and Human Services budget and the Hyde Amendment is “going to be a difficult decision for people to make,” Weiss said.
In a letter sent to congressional leadership last month, antiabortion activists urged lawmakers to fight for the Hyde language.
“Congress has the duty and privilege to continue this legacy of protecting the vulnerable,” they wrote.
The Hyde Amendment is “a piece of a much larger puzzle,” said Alina Salganicoff, senior vice president and director of women’s health policy at the Kaiser Family Foundation
This is because in the past 10 years, many states have imposed abortion restrictions on private insurance plans, on top of banning coverage from publicly funded ones. Whether someone can use Medicaid to help fund their abortions would still depend on the state they live: the reimbursement rates, the availability of providers and state laws.
To substantially expand Medicaid coverage, additional legislation is necessary to bar states from imposing their own coverage restrictions, Salganicoff added.
A handful of states, including New York, Washington and California, have mandated abortion coverage in Medicaid, private insurance and Affordable Care Act plans.
Experts agree that Biden’s Hyde-free budget is unlikely to get passed, but it represents an important shift, McKinney said.
“It does show real cultural and social movement, even if it doesn’t get reflected in legislative change.”