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.