Hyde Amendment has long bipartisan history but an uncertain future

WASHINGTON (CNS) -- The Hyde Amendment, born in 1976, has had a fairly long congressional history, but it could be marked for extinction.

The amendment, which bans federal Medicaid funding of abortions, must be renewed each year. Hyde's reach has extended to bans on federal funds for abortion in federal worker health plans, women in federal prisons, women in the military, Peace Corps volunteers and international family planning programs that use non-U.S. funds to perform or advocate for abortion.

The Hyde Amendment has itself been amended over the years. While it originally barred federal funds for paying for any abortions, it later allowed for abortions when the mother's life is endangered and was modified again to include cases of rape and incest.

It has been a part of every Cabinet-level annual appropriations package that covers health care -- originally the Department of Health, Education and Welfare, and later by the Department of Health and Human Services.

Yet even though the Hyde Amendment has been included in appropriations bills when Democrats controlled both the White House and both chambers of Congress -- taking in the presidencies of Jimmy Carter, Bill Clinton and Barack Obama -- there is the gnawing sense that it won't have that easy a time under President Joe Biden, despite the narrow margins by which Democrats control the House and Senate.

The Democratic National Committee's 2016 platform called for the rescinding of the Hyde Amendment. The Republican-led House, in response, passed a bill in 2017 that would have made the Hyde Amendment permanent. But the GOP-led Senate never took a vote on the bill.

Biden, when he was still an aspirant for the Democratic nomination in 2020, reiterated his support for the Hyde Amendment, but quickly reversed course after an outcry from his fellow Democrats. Rep. Chris Smith, R-N.J., co-chair of the Congressional Pro-Life Caucus, derided Biden's about-face. "He's the abortion president," Smith told Catholic News Service in an April 28 phone interview.

Smith said he was there at the beginning as executive director of New Jersey Right to Life, "lobbying my own congressman" as Henry Hyde, an Illinois Republican, introduced the amendment. He said Hyde found a century-old precedent that convinced the House parliamentarian to rule Hyde's amendment in order. "But that's not going to happen again," said Smith, who has served in the House since 1981.

Pro-life Democrats are an endangered species. The Congressional Pro-Life Caucus, a historically bipartisan group, no longer has a Democrat as co-chair since the primary defeat in Illinois last year of Dan Lipinski. The caucus' website lists only three Democrats among their membership -- and, when contacted by CNS for interviews, two of the  spokesmen said these representatives were no longer caucus members.

It is possible to thread a political needle -- to declare support for legal abortion but to oppose federal funding for it. That's the hope of Democrats for Life of America. Its executive director, Kristen Day, said the group plans to run newspaper ads in the districts of some of the six Democrats still in the House who voted for the Hyde Amendment in 2009. That year, it was attached to the Affordable Care Act and introduced by then-Rep. Bart Stupak, D-Mich.

Stupak was vilified by Democrats for sponsoring a Hyde Amendment-like proviso, and by the GOP for his support of the ACA, which became law in 2010. Stupak chose not to seek reelection, saying that with the ACA's passage, he had accomplished what he had set out to do when he first came to Congress; that seat has been in Republican hands ever since.

One indication of Hyde's wavering support came in February, when the Senate rounded up 53 votes in favor of including it in the American Rescue Plan. However, because of the process used to move the bill through Congress, the amendment needed 60 votes to be part of the bill. Three Democrats could be found to back Hyde in the 50-50 Senate, but not 10.

The U.S. bishops signaled their distaste after the American Rescue Plan's signing. Without mentioning Hyde by name, Archbishop José H. Gomez of Los Angeles, president of the U.S. Conference of Catholic Bishops, along with six bishops who chair committees of the bishops' conference, said it was "unconscionable that Congress has passed the bill without critical protections needed to ensure that billions of taxpayer dollars are used for life-affirming health care and not for abortion."

Why did the bishops get so exercised? "The American Rescue Plan allocated funds that don't go through the appropriations bills, so they wouldn't be subject to Hyde" or the Helms Amendment, its international-policy counterpart, said Greg Schleppenbach, associate director of the U.S. bishops' Secretariat for Pro-Life Activities.

"Any bill that appropriates money separate from the normal appropriations process, we advocate for health care services and funding. We advocated that Hyde has to be a part of that. Otherwise, it doesn't otherwise control those funds," Schleppenbach said.

"The sad reality of the fact that abortion advocates characterize it as health care, and so anything, any legislation that would appropriate money to health care that doesn't go through the health care process, the money can be used for abortion," Schleppenbach said. "The courts have ruled on this. This is why we're always tracking any legislation that has anything to do with health care."

Democrats for Life say the lives of 2 million babies have been saved as a result of the Hyde Amendment. Smith put the figure at 2.4 million. "Sixty thousand a year are alive today because the money was not there to effectuate their demise," he said.

While there may be a cost saving in terms of federal tax dollars not being spent on abortions, some 40% of women who get abortions live in low-income households. If they were to bring their babies to term, those new mothers could be eligible for other federal benefits, among them Temporary Assistance to Needy Families, the Supplemental Nutrition Assistance Program and the Women, Infants and Children feeding program.

How can Hyde survive?

Schleppenbach's predecessor at the secretariat, Richard Doerflinger, detailed the process by which the HHS appropriations bill gets written: The House committee that oversees HHS has a dozen subcommittees. Each subcommittee has a portion of the HHS budget to authorize. Once authorized, it goes to the full committee. If OK'd by the committee, it then goes to the House floor for approval first before being sent to the Senate.

If Hyde isn't in the House-passed version, someone in the Senate would likely move to include the amendment to include it. Doerflinger said he was heartened by the fact that three Democrats had voted to add Hyde language to the American Rescue Plan. "That bodes well when you're back in regular (legislative) process," he said.

One scenario would see continuing resolutions passed until a new bill is authorized, according to Doerflinger; the current HHS funding bill contains Hyde language. A related scenario could have a Senate unwilling to pass an HHS funding bill without the Hyde Amendment, he said, "and you shut down the government for a while, or part of it. Then you have a game of chicken -- who flinches first."

Smith anticipates a Senate filibuster. "The filibuster in the Senate side will be critical to maintaining Hyde," he told CNS, adding he took part in one such filibuster in 1984. "We'll do the most robust debate imaginable," he vowed.

The effects of an appropriations bill without Hyde, Doerflinger said, would include requiring states to use federal funds for abortion services just as they would for any other kind of health care.

A handful of states pay for abortions via legislation, and more than a dozen others do so by court order. There are also some states that have constitutional language forbidding the use of tax dollars to pay for abortion, but Doerflinger said but they would be overridden by the U.S. Constitution's supremacy clause.

So, even after 45 years, Doerflinger said, "it's not the end of the debate, it's the beginning of the debate."