Since 1976, each federal budget has contained a provision known as the Hyde Amendment, a provision that severely limits the use of federal Medicaid funds to pay for abortion services (with narrow exceptions such as for when the mother’s life is on the line). One of this measure’s earliest supporters was a young Sen. Joe Biden. Democratic and Republican Presidents have generally supported the Hyde Amendment, including President Obama, who didn’t want to touch this third rail issue. The general consensus has been that because abortion is such a divisive issue, taxpayers should not be required to fund it.
Under the Hyde Amendment, federal funds cannot generally go to fund abortion, which means that individuals on Medicaid do not have coverage for abortion. However, 17 states offer state funding for abortion, and so in those states those on Medicaid do have coverage.
In a 1980 court case, Harris v. McRae, the Supreme Court upheld the Hyde Amendment in the face of an Equal Protection and Establishment Clause challenge. The Supreme Court applied very deferential review because it emphasized that poverty and financial status is not a protected class. And it found that despite similarities to some religious doctrines, the anti-abortion policy position was not an establishment of religion. This was a narrow decision at the time it was issued, but given the current Supreme Court there is practically no chance that the decision will be overturned. On the other hand, most of the 17 states that fund abortions do so because of court decisions identifying a right to funding under state constitutions.
And yet, despite political pressure from pro-abortion groups, there has been almost no movement on the Hyde Amendment at the federal level for decades.
That changed this week when President Biden introduced a $6 trillion budget that did not include the Hyde Amendment.
It is unlikely that a budget will pass without the Hyde Amendment because there is universal Republican support for the Hyde Amendment, as well as support among moderate Democrats like Sens. Joe Manchin of West Virginia and Bob Casey of Pennsylvania. A ban on federal funding for abortion is also quite popular, with 58% of Americans in a recent Marist poll voicing opposition to federal funding for abortions.
But this shift is nevertheless significant. It shows how the Democratic party has become more emboldened to embrace a strong pro-abortion position even as the Republican base is increasingly against it.
This is a striking change for someone like President Biden who is Catholic and who has long expressed hesitation about abortion. On the campaign trail, President Biden promised to end the Hyde Amendment, stating, “If I believe health care is a right, as I do, I can no longer support an amendment that makes that right dependent on someone’s ZIP code … I can’t justify leaving millions of women without the access to care they need, and the ability to exercise their constitutionally protected right(.)” But his willingness to follow through and please his base suggests that he is increasingly beholden to the extremes of his party rather than any promises of bipartisanship. And on this move, President Biden cannot point to widespread bipartisan approval.
This effort is also significant in at least one other respect. For the past several decades, most battles over abortion have been fought at the state level, with the exception of the federal ban on partial-birth abortion, which went up to the United States Supreme Court. Pro-abortion advocates have had some victories, such as in New York and Virginia, but the overall trend in the states has swung unmistakeably in an anti-abortion direction. The courts also have more anti-abortion jurists today than anytime since Roe v. Wade was decided.
But the effort to go after the Hyde Amendment represents a pro-abortion counter offensive at the federal level that is likely to intensify so long as Democrats control the presidency and Congress. And if Roe is overturned, then we could see a battle where Congress tries to pressure states to continue to offer abortions.
Daniel Ortner is a public interest attorney at Pacific Legal Foundation, which litigates nationwide to achieve court victories enforcing the Constitution’s guarantee of individual liberty.
