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5 Facts about the Hyde Amendment

Earlier this week former Vice President Joe Biden’s presidential campaign had confirmed that he still supports the Hyde Amendment, which for forty years has prevented government health programs like Medicaid from paying for abortions. But last night Biden announced he no longer supports the Amendment, reversing a position he has held for the past forty years. 

Here are five facts you should know about the Hyde Amendment:

1. Since 1976, a legislative provision known as the Hyde Amendment Codification Act—or language similar to the Amendment—has been routinely attached to annual appropriations bills. The Amendment is not a permanent law, but is attached each year as a temporary “rider” to the Congressional appropriations bill for the Department of Health and Human Services (HHS). The Hyde Amendment is named after Henry Hyde, a Republican Congressman and who served Illinois’ 6th District from 1975–2006. Although always associated with Hyde, the amendment was originally written by Rep. Silvio Conte (R-MA) who drafted the then-compromise language allowing an exception to the ban “where the life of the mother would be endangered if the fetus were carried to term.”

2. The Hyde Amendment prohibits federal funds from being expended for abortion or health coverage that includes coverage of abortion. The Amendment language states that abortions are eligible for federal funding only in cases of rape or incest, or where the performance of an abortion is necessary to prevent the mother from suffering a physical disorder, physical injury, or physical illness, including a life-endangering physical condition. Federal funding of abortion and health coverage that includes abortion is also prohibited, with the same exceptions.

3. Congress first passed the Hyde Amendment in 1976, which limited the use of federal funds to reimburse the cost of abortions under the Medicaid program. Cora McRae, a pregnant Medicaid recipient, challenged the constitutionality of the Hyde Amendment and took action against Patricia R. Harris, Secretary of Health and Human Services. In the case of Harris v. McRae, the plantiff claimed the Amendment violated the right to privacy, the Due Process Clause of the Fifth Amendment, and the Religion Clauses of the First Amendment. In 1980, the Supreme Court ruled 5-4 that a woman’s freedom of choice did not carry with it “a constitutional entitlement to the financial resources to avail herself of the full range of protected choices.” The court also ruled that the funding restrictions of the Hyde Amendment did not violate either the Fifth Amendment or the Establishment Clause of the First Amendment.

4. Since 1980 the Hyde Amendment has been renewed annually by Congress, often with broad bipartisan support. President Carter endorsed it during its challenge before the Supreme Court. Presidents Reagan and Bush also supported it from 1981 to 1993. President Bill Clinton campaigned against it in 1992, but continued to sign a slightly modified version of the Hyde Amendment into law each year. President Bush also supported it for all eight years of his term in office. President Barack Obama even used similar language in an executive order relating to the Affordable Care Act.  

5. Despite being a historically bipartisan amendment, the Democratic Party has since become adamantly opposed to any restrictions on federal funding of abortion. The 2016 Democratic Party platform states, “We will continue to oppose—and seek to overturn—federal and state laws and policies that impede a woman’s access to abortion, including by repealing the Hyde Amendment.” Eight current Democratic presidential candidates—Sens. Michael Bennet (D-Colo.), Cory Booker (D-N.J.), Kirsten Gillibrand (D-N.Y.), Kamala Harris (D-Calif.), Amy Klobuchar (D-Minn.), Beto O’Rourke (D-Texas), Eric Swalwell (D-Calif.), and Elizabeth Warren (D-Mass.), as well as Rep. Eric Swalwell (D-Calif.)—voted for a 2018 appropriations bill that contained Hyde Amendment language while only one—Bernie Sanders (I-Vt.)—voted against it. But since then Booker, Gillibrand, Harris, O’Rourke, and Warren—along with Sanders and Bill de Blasio—have publicly called for the repeal of the Amendment. The Republican Party, in contrast, seeks to codify the Hyde Amendment, making the limitation on the use of federal funds for abortion a permanent law.

 See also: ERLC Supports Hyde Amendment Protection

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