The Hyde Amendment: How A 43-Year-Old Provision Became A 2020 Issue

The Hyde Amendment prohibits federal health insurance programs from covering abortions except in cases of rape, incest or risk to the woman's life.

Democratic presidential candidate Joe Biden came under scrutiny this week over the former vice president’s support, which he retracted Thursday night, of the Hyde Amendment, a 1976 provision that restricts federal funding for abortions. Here’s a primer on why this 43-year-old measure has been thrust again into the limelight:

What is the Hyde Amendment?

The funding provision was first introduced in 1976 by its namesake, Rep. Henry J. Hyde (R-Ill.). It had only one exception — pregnancies that would put a woman’s life at risk — until 1994, when President Bill Clinton signed an act expanding it to include exceptions for pregnancies resulting from rape and incest.

To this day, the provision bans Medicaid, Medicare and other federal health insurance programs from covering abortions outside of these three exceptions.

Over the years, Hyde has been challenged in courts by abortion rights groups such as Planned Parenthood and the Reproductive Freedom Project. But in 1980, the Supreme Court upheld the constitutionality of the Hyde Amendment, later that year ruling that states had no constitutional obligation to fund abortions either.

In 17 states, Medicaid has been expanded to cover all abortion procedures through state budgets. Six states expanded coverage to include cases in which the health of the woman is at risk. Only South Dakota has elected to implement more restrictive funding, refusing to cover abortions even in cases of rape or incest, and allowing an exception only when the life of the mother is at stake.

Why is it an issue today? 

It’s not just the former vice president’s stance that has propelled the debate on whether to repeal Hyde to the forefront of the Democratic primary. As legal battles wage across the country and states continue to pass increasingly harsh anti-abortion laws, reproductive rights could factor into the 2020 election more prominently than any before. 

The law has faced heavy criticism, especially for its disproportionate effect on low-income women and women of color.

According to the Kaiser Family Foundation, 1 in 5 women of reproductive age is on Medicaid, and in 2014, 75% of abortion patients were low-income women and 64% were women of color. That same year, the median cost of an abortion at 10 weeks was $500, according to the Guttmacher Institute. At 20 weeks, the median cost jumped to $1,195. 

But 4 in 10 Americans would not be able to cover even a $400 emergency expense through savings, the Federal Reserve Board found in 2018. 

Still, the provision has traditionally found a degree of bipartisan support. As part of the annual appropriations process, it must be approved in Congress again every year, packaged within larger spending bills, in order to remain in effect. Hyde has been successfully approved in some form every year since it was first signed into law, even during periods in which Democrats controlled both chambers of Congress.  

In 2017, the House passed a bill attempting to enshrine Hyde permanently in law, but it failed to pass the Senate. 

Where do the other 2020 candidates stand?

Before his reversal Thursday night, Biden had been the only Democratic candidate to openly voice support for the Hyde Amendment, and over a dozen candidates had explicitly said they would support repealing it.

“He’s absolutely wrong on this one,” former Rep. Beto O’Rourke (D-Texas) said Wednesday in an interview with CBS.

When asked at an MSNBC town hall-style event on Wednesday if Biden was wrong to support Hyde, Warren quickly said yes. Even if it is not repealed, she added, “women of means will still have access to abortions.”

“Who won’t will be poor women,” she said. “It will be working women — women who can’t afford to take off three days from work. It will be very young women. It will be women who have been raped and women who have been molested by someone in their own family. We do not pass laws that take away that freedom from the women who are most vulnerable.”

A bill introduced in March, the Equal Access to Abortion Coverage in Health Insurance Act, would effectively repeal the Hyde Amendment, requiring that the federal government ensure abortion coverage through federal programs like Medicaid. Presidential candidates who have co-sponsored the bill are Sens. Kirsten Gillibrand (D-N.Y.), Kamala Harris (D-Calif.), Amy Klobuchar (D-Minn.), Elizabeth Warren (D-Mass.), Cory Booker (D-N.J.) and Bernie Sanders (I-Vt.). The bill is unlikely to pass in Congress, though.

This article has been updated to reflect Joe Biden’s change of mind about the Hyde Amendment at a Democratic gala Thursday night.