After 40 Years, It’s Time To End The Dark Legacy Of The Hyde Amendment

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Abortion will never not be a heated issue in America despite being protected by the Supreme Court under the constitutional right to privacy. Roe v. Wade (1973) struck down a Texas law that criminally punished anyone who helped a woman obtain an abortion. Two decades later, Planned Parenthood v. Casey (1992) established the “undue burden” rule to outlaw any “substantial obstacle” a state placed in front of an abortion-seeking woman. These rulings haven’t stopped opponents, including lawmakers, from waging a continuous war that culminated this summer when SCOTUS struck down Texas’ HB2 law, which attempted to place nitpicky restrictions on abortion facilities. After the court’s ruling, pro-choice advocates celebrated.

But the fight isn’t — nor will it ever be — finished.

One of the harshest abortion obstacles, the Hyde Amendment, still prevents many women from choosing. Hyde isn’t a permanent law, yet it has persisted as an annually renewed rider that’s been so skillfully woven into spending bills that it’s never ceased to exist. Generally speaking, the bill prohibits federal monies (including Medicaid) from being used to fund abortion except for certain restrictions, which have morphed through the decades. The current Hyde version prohibits these funds from being used other than in cases of rape, incest, or endangerment of the woman’s life.

Opponents of Hyde often speak about it in terms of discrimination against poor women. This is not hyperbole. When abortion became legal in 1973, the procedure was covered by Medicaid (defined as “a government insurance program for persons of all ages whose income and resources are insufficient to pay for health care”), and Hyde ended this coverage eligibility. Now, the termination of a pregnancy is certainly a medical procedure, but we can argue all day long about whether abortion is “health care.” So, let’s do this. Is abortion health care?

The drafters of Texas’ HB2 law treated abortion as health care for the purpose of impeding the procedure. The law placed a number of stringent restrictions (many arbitrary) upon abortion clinics — including double-wide door width and surgical scrub and locker room procedures — which aren’t required by many other types of medical offices that provide outpatient care. These tough standards would lead one to believe that, yes, abortion facilities provide health care. There’s little dispute over how these requirements were put into place to hinder abortion clinics and force a number of them to close. But by that same standard, the laws required the clinics to operate under health care standards upheld by facilities that are covered by Medicaid.

Yet abortion opponents would like to maintain this double standard that only treats abortion clinics like health care facilities for their purposes. That is, when they can enact laws to cripple the clinics and end abortion, it’s cool to treat it like health care. But for purposes of Medicaid coverage? These critics don’t want abortion to be covered like any other health care service. Of course, while Texas may be the go-to example for these restrictive laws, other states — Alabama, Kansas, Louisiana, Mississippi, Oklahoma and Wisconsin — aimed for similar goals. Some of these laws have been dismantled after Texas’ HB2 law went down, but the shady Hyde Amendment remains.

We spoke with some experts to discuss the 40 years of Hyde’s reign and the renewed fight to dethrone the restriction. Their words ring loud and clear as we continue to explore this issue.

The Hyde Amendment Was Drafted With Discriminatory Intent

The Hyde Amendment was first authored by the late Representative Henry Hyde (a devout Roman Catholic) in 1976. He expressed the desire to outlaw all abortions, but Hyde knew that he could only effectively target women in poor communities. This was his exact commentary on the subject:

“I would certainly like to prevent, if I could legally, anybody having an abortion: a rich woman, a middle class woman, or a poor woman … Unfortunately, the only vehicle available is the [Medicaid] bill.”

Hyde freely admitted his intention here. He wished to bar all women from having abortions, but since that wasn’t possible, he settled for targeting poor women. These are women who are funded by insurance, albeit a different kind of insurance than is seen as undesirable by society. And if we view pregnancy as a medical condition — which it surely could be, especially when other insurance-approved methods like IUDs or the Pill fail — then it becomes even more obvious that Hyde tweaked Medicaid recipients’ health care coverage to exclude something that morally offended him.

The percentage of women who are affected by Hyde are staggering. Yamani Hernandez — Executive Director, National Network of Abortion Funds — tells us, “[T]here are approximately 65 million people enrolled in Medicaid, many people who are [otherwise] uninsured, and 42 percent of people having abortions are low-income.” She details how these women are unable to pay for food, rent, and other essential expenses (also risking their jobs and traveling long distances) in order to secure out-of-pocket abortions. This, Hernandez believes, is a denial of “constitutional and human rights because of their race, income, or zip code.”

Year after year, lawmakers have endorsed this discrimination. In fact, many women choose abortion because of their financial situations, only to be crushed by the Hyde Amendment. The exclusion grows even more sinister when one considers how Medicaid places plenty of barriers in front of sterilization requests, and not all birth control methods are reliable. Abortion is also noticeably excluded while Medicaid still covers the cost of prenatal care for women who became pregnant. It’s not a leap of logic, especially with Hyde’s own words, to conclude that the Hyde Amendment was motivated in an attempt to force (often poor) women to carry pregnancies to completion.

The Quest To End Hyde’s Reign

For the first time since Hyde’s 1976 passage, the Democratic platform has formally called to repeal the amendment. The Associated Press recently published a piece that acknowledges both sides of the argument, including how Hyde’s supporters emphasize the need to make sure that “taxpayers who oppose abortion do not have to subsidize it.” But at the same time, this leaves a medical procedure unavailable to poor women as opposed to more affluent ones. And as with Texas’ HB2 law, Hyde disproportionately affects women of color.

These communities are now banding together in an effort to finally stop Hyde as it approaches its 40th anniversary on September 30. Also notable? The fight against Hyde highlights the one significant issue that once threatened to divide Hillary Clinton from her VP pick, Tim Kaine. Perhaps “divide” is too strong a word (especially since the Democratic party has put on a strong show of unity after Bernie Sanders endorsed Clinton), but the running mates’ departure on the issue is definitely awkward. Kaine, who supports the right to choose despite his Roman Catholic faith, previously opposed repealing the Hyde Amendment, but he has now pledged to defend Roe v. Wade and support Clinton’s position to end Hyde once and for all.

The Hyde Amendment’s Cruelty Towards Minorities

Kierra Johnson — Executive Director, Unite for Reproductive and Gender Equity (URGE) — spoke with us about the effects of Hyde’s discrimination against women who can’t afford out-of-pocket abortions. Johnson states, “When politicians deny coverage, the harm falls hardest on low-income people, who are more likely to be women of color, young, immigrants, transgender, or gender non-conforming people.” The effects are notable, and Johnson points out how one-fourth of poor women who’d prefer an abortion will complete their unwanted pregnancies instead. Those women are much more likely to spiral further into poverty than their counterparts who do obtain abortions. For this reason, Johnson believes, “Hyde is a cruel restriction and it’s long past time we got rid of it.” She also stresses how a patient’s type of insurance, whether Medicaid or private, shouldn’t control one of the most important decisions they’ll ever make.

Even more insidious, according to Yamani Hernandez, is how Hyde’s effects “extend past the refusal to fund the actual abortion procedure.” Hyde does this “by giving the public the idea that some people are less entitled to their full reproductive health care options because of their income or zip code, which increases public stigma.” Hernandez calls out the very existence of Hyde as inspiring the “thousands” of other barriers to abortion, which exist on both a state and federal level. This not only affects Medicaid but “a dozen other laws [that] now prevent federal health care programs from covering abortion for federal employees.” This includes those in the military, disabled people, and Native Americans who rely on Indian Health Services.

The effects of Hyde clearly spread to all of the above communities. But Monica Simpson — Executive Director of SisterSong, the National Women of Color Reproductive Justice Collective — believes it’s important to stress who Henry Hyde targeted. Specifically, he moved against low-income women, which works a disproportional effect upon minority communities. Simpson states, “The Hyde Amendment is a reminder of how much the lives and livelihood of women of color are devalued in this country.” As a result, she says, “It magnifies the lack of understanding and blatant disregard of the whole lives of women.”

The Fight To End Hyde Isn’t Just About Abortion

When it comes to dismantling Hyde, Johnson reminds us that Hyde’s prevailed for four decades, which is “40 years too long.” She feels the time is right because “for the first time ever we have a major party platform and a major party candidate committed to getting rid of Hyde.” Johnson relays how many opponents of the legislation were “excited and inspired by this summer’s victory at the Supreme Court and want the victories to keep coming.” She claims that young people, in particular, understand that knocking out Hyde is about more than the abortion issue. Instead, this is about “eradicating inequities that fall the hardest on the most marginalized people,” and removing Hyde is the key to knocking down more barriers of systemic discrimination.

Likewise, Hernandez believes that Hyde’s place in history should cease to exist, and time is long overdue to remove “a violent piece of legislation that keeps anyone with Medicaid insurance from accessing full control over their health and lives.” She hopes that “we have progressed in the last 40 years in our understanding and practice of equality.” Hernandez urges all citizens — no matter what their political beliefs — to understand that Hyde’s continuance stretches beyond the abortion issue, for “we are all impacted by the policies” of “the broken U.S. political system.”

To that end, Hernandez declares that women have waited an inordinate amount of time to wait for Hyde to be repealed, “But it always seems like the most marginalized are asked to wait. We have always resisted forces and legislation that has tried to keep us down. And this fight is no different.” She urges action: “We refuse to wait any longer. Our health should be a priority. Our ability to live self determined lives should be a priority.”

As we approach the 40th anniversary of Hyde, the pressure is mounting for Congress to detach the bill as a spending rider. With a presidential nominee who supports ending Hyde and Democrats who are pushing to take back the U.S. House and Senate, the time could very well be right to end Hyde’s shameful legacy.

You can learn more about the Hyde Amendment and the fight to end it at the National Network Of Abortion Funds, SisterSong, and URGE websites.

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