Since 1980, a small line item in the annual Health and Human Services appropriations bill has passed with little fanfare. Yet in recent months, the so-called Hyde Amendment – which bans federal tax dollars from paying for abortions – has made headlines and received significant attention as Planned Parenthood, NARAL, and pro-abortion politicians have called for its abolishment.
So what is the Hyde Amendment and why is it so vital to protecting the rights of both born and unborn Americans?
What is the Hyde Amendment?
Originally passed in 1976, three years after the Supreme Court legalized abortion in Roe v. Wade, the Hyde Amendment is named after one of its biggest advocates, the late congressman Henry Hyde. The amendment prohibits federal funding of abortions, and as a rider to the HHS appropriations bill, must be passed each year. There have been various iterations of the amendment’s language over the past 40 years, but the current version includes exceptions that allow Medicaid funds to be used for abortions in cases of rape, incest, or the health of the mother – but all other federal taxpayer funding of abortion is banned.
Although the Hyde Amendment was first passed in 1976, it did not take effect until 1980 when the Supreme Court ruled it to be constitutional. During the years between Roe and the implementation of the Hyde Amendment, federal tax dollars funded roughly 300,000 abortions annually – which amounts to roughly 25% of all abortions during that same period. Before the Hyde Amendment went into effect, America’s taxpayers were paying for nearly a quarter of all abortions in the U.S.
The Hyde Amendment has historically had bipartisan support.
The Hyde Amendment has had bipartisan support in Congress and widespread consensus as a sound and important policy during the post-Roe era for more than four decades. It is a part of the annual appropriations process, is routinely passed, and rarely challenged.
There have been six presidents inaugurated since the Hyde Amendment originally passed in 1976, three from each major political party. President Carter supported the Hyde Amendment as it faced legal challenges all the way to the Supreme Court. Presidents Reagan and Bush supported it from 1981 to 1993. Although President Bill Clinton campaigned against it in 1992, he continued to sign a slightly modified version of the Hyde Amendment into law each year that allowed for taxpayer funding to be used for abortions through Medicaid funding in cases of rape and incest, an extremely small number of abortions.
President George W. Bush supported the Hyde Amendment for both of his terms. And the protections of the Hyde Amendment were even enshrined by the Obama Administration in an executive order pertaining to the Affordable Care Act. Executive Order 13535 establishes “an adequate enforcement mechanism to ensure that Federal funds are not used for abortion services (except in cases of rape or incest, or when the life of the woman would be endangered), consistent with a longstanding Federal statutory restriction that is commonly known as the Hyde Amendment.”
Yet, this year, for the first time in history, Planned Parenthood, NARAL, and the abortion industry are joined by many of their pro-abortion allies, explicitly calling for the Hyde Amendment to be repealed. This is a significant departure from the stance of even the strongest political proponents of abortion over the last 20 years, whose mantra used to be that abortions should be “safe, legal, and rare.”
The Supreme Court has upheld the constitutionality of the Hyde Amendment.
When the Hyde Amendment first passed in 1976, it was challenged in federal court in Harris v. McRae. The case made its way to the Supreme Court in 1980, where the Court upheld the constitutionality of the amendment. The Court held:
The funding restrictions of the Hyde Amendment do not impinge on the "liberty" protected by the Due Process Clause of the Fifth Amendment held in Roe v. Wade, 410 U.S. 113, 168, to include the freedom of a woman to decide whether to terminate a pregnancy. . . .
Regardless of whether the freedom of a woman to choose to terminate her pregnancy for health reasons lies at the core or the periphery of the due process liberty recognized in Wade, supra, it does not follow that a woman's freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices.
A year before in 1979, the Supreme Court held in Maher v. Roe that Roe v. Wade does not establish a woman's right to a free abortion. Holding that Roe v. Wade "did not declare an unqualified 'constitutional right to an abortion'" and "implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion, and to implement that judgment by the allocation of public funds."
These cases make one thing abundantly clear: taxpayer funding of abortion by abandoning the Hyde Amendment is a significant shift and leap from Roe that the government is not obligated to take. Roe did not establish a positive right to an abortion and therefore the government has no obligation to finance that abortion for any woman choosing to have one at any point in her pregnancy.
The Hyde Amendment is a critical protection for the freedom of conscience of Americans.
Abortion has been one of the most divisive topics in American society and politics for more than four decades. The Hyde Amendment has been a unique compromise by Americans on all sides of the abortion debate, declaring that because abortion is so controversial, our federal tax dollars should not be used to end unborn lives. A recent poll, which reveals that a large majority of Americans support the ban on taxpayer-funded abortions, illustrates why such a policy is crucial. Even President Obama, who has been more pro-abortion than any other president in U.S. history, understood the need for compromise to protect the conscience rights of pro-life citizens during his restructuring of our health care system.
The Hyde Amendment is a crucial mechanism by which our society can continue to debate the most fundamental questions of our humanity – when a human life begins and what our obligations are to protect each human life. As Congressman Henry Hyde himself said, “This is a debate about our understanding of human dignity, what it means to be a member of the human family, even though tiny, powerless, and unwanted.”
In Roe v Wade, seven justices ruled that it is not permissible to criminalize abortion. However, the question of whether abortion is good for society and should thus be supported and encouraged through government funding is very much a matter of public debate in which a majority of Americans agree that tax dollars should not fund abortions. Numerous Supreme Court cases have declared this constitutional, making clear that the government is free to incentivize and prioritize childbirth over abortion.
But paramount to providing a venue for debate about the sanctity of life, the Hyde Amendment protects the religious liberty and freedom of conscience for millions of pro-life Americans. Abortion advocates constantly argue that abortion is a decision between a woman and her doctor. Yet if the Hyde Amendment is repealed, every American will become involved in abortions through the use of our tax dollars. For those of us who believe every life is precious no matter the circumstances, the consequences are dire. Taxpayer money may be used for things various Americans disagree with all the time, but decades of bipartisan support for the Hyde Amendment reveal that questions of ending a vulnerable human life are something different altogether.
The move to abolish the Hyde Amendment is yet another signal that abortion activists are moving away from their mantra of “safe, legal, and rare,” to something more akin to abortion “any time, for any reason, at no cost.”
But the problem with that refrain is that it is false advertising. Abortion always has a cost. It costs a mother her child, her child its life, and society the basic understanding of what it means to be human.
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