A Compromise on Abortion: The Hyde Amendment

In 2016, Hillary Clinton became the first major-party candidate to call for the repeal of Hyde Amendment, which bans federal funding of abortion. In general, Americans are fairly supportive of Hyde, and Clinton’s stance made the hard choice faced by social conservatives in the 2016 election a lot harder. The amendment has long stood as a vital conscience-protection measure for abortion opponents, and Clinton’s position would compel people who regard abortion as a terrible crime to finance the procedure against their will.

In that sense, the Democrats’ attack on Hyde is a long way away from traditional centrist pro-choice logic, which has relied on the claim that abortion rights are about protecting individual autonomy. It’s one thing for pro-choicers to tell pro-lifers, “If you don’t like abortion, don’t have one.” It’s quite another for them to add, “and of course, you’re obliged to help pay for them.”

In any case, although Clinton’s loss to Donald Trump means that Hyde will stay on the books for the next few years, it’s clear that the measure is no longer the relatively uncontroversial aspect of American abortion policy that it once was. And with Democrats gunning for Hyde, it wasn’t surprising when Chris Smith, a Republican congressman from New Jersey, took advantage of unified Republican government to introduce H.R. 7, which would make the amendment permanent. H.R. 7 is a new version of a bill that passed in the GOP-controlled House a few times during the Obama administration but never stood much of a chance at becoming law until this year. Smith’s bill passed in the House on January 24 and is awaiting consideration by the Senate finance committee. Meanwhile, Democrats have advanced their own bill—dead on arrival in a Republican congress—that would permanently abolish Hyde.

Although Hyde denies both sides of the abortion debate what they really want, it has long been grudgingly accepted by Americans across the political spectrum. It was first introduced by Silvio Conte, a moderate Republican congressman from deep-blue Massachusetts, in 1976, three years after Roe v. Wade removed abortion restrictions across the country. Conte’s amendment banned federal funding for abortion as a compromise measure in a spending bill for the Department of Health and Human Services. His Republican colleague Henry Hyde sponsored the amendment, which became law in 1977 and was upheld in 1980 in the Supreme Court decision Harris v. McRae.

The Hyde Amendment continued to be appended to various medical appropriations bills with relatively little protest from mainstream pro-choicers. Jimmy Carter, who professed to be personally but not politically opposed to abortion, signed the original Hyde Amendment into law. Bill Clinton signed a later version in 1995, and after the Affordable Care Act passed in 2010, Barack Obama, under pressure from pro-life House Democrats, issued an executive order guaranteeing that federal funds wouldn’t be used for abortion.

But today, as pro-life Democrats dwindle in number and polarization over abortion intensifies, Hyde is coming under sustained attack from the pro-choice movement. That’s a pity, because the amendment reflects the American public’s ambivalence on abortion. Making Hyde permanent would hardly represent a decisive victory for the pro-life movement. It would merely help ensure that Americans who believe that abortion is literally murder won’t have to feel as if they’re paying for it. In that sense, Hyde reflects the same deeply rooted American commitment to value pluralism that abortion rights activists draw on when they use the term “pro-choice.”

Anthony Kennedy’s notorious majority opinion in Planned Parenthood v. Casey, the 1992 decision that upheld most of Roe, justified abortion by appealing to “the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.” That logic, vulnerable to ridicule though it may be, lies at the heart of American abortion jurisprudence—and it compels the conclusion that committed pro-lifers should not be forcibly implicated in abortion through their taxes. Hyde protects their right to feel as though they are doing the right thing. For people who believe that abortion is murder, submission to a government that actively kills unborn children is worse than submission to a government that merely stands by as they are killed. That helps explain why voting for an anti-Hyde candidate was a bridge too far for many social conservatives, even ones who found Donald Trump abhorrent.

To arguments like these, many defenders of abortion reply that the American collectivity has already affirmed that access to abortion is a right, and that rights are meaningless if they aren’t guaranteed materially. Under the current American healthcare regime, of course, most federal funding for abortion would be routed through Medicaid, which provides healthcare to the poor. Hyde opponents make an argument from inequality: we can’t affirm that abortion is acceptable while only making it available to rich women in practice, they say.

The Supreme Court challenged that reasoning in Harris v. McRae, the case that upheld Hyde. Potter Stewart wrote in his majority opinion that “by means of unequal subsidization of abortion and other public services [Hyde] encourages alternative activity deemed in the public interest,” adding that “the Hyde Amendment leaves an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all.” In other words, the state is obeying Roe’s requirement that it not actively restrict abortion access—after all, poor women can still get abortions with help from private funds—while also choosing to use its indirect power to discourage abortion.

As Stewart’s reasoning in Harris indicates, Hyde is about more than keeping pro-lifers’ hands clean: it represents a value-judgment on the part of the state that abortion, while legal under Roe, is not a good thing. So it makes sense that Henry Hyde’s first speeches in defense of his namesake amendment hardly mentioned the issue of conscience protection—they were almost exclusively focused on the tragedy of abortion itself. The Hyde Amendment represents the doctrine that the government has a compelling interest in protecting the lives of unborn children insofar as it can do so without interfering with women’s bodily autonomy.

As it happens, that view lines up well with mainstream opinion on abortion today. Many pro-choice Americans support the Court’s ruling in Roe while continuing to believe that abortion is bad. Hyde enshrines that nuance in public policy. Without placing any legal restrictions on abortion access, the state uses whatever indirect influence it has to discourage abortion and encourage pregnant women to pursue other alternatives. That sounds like a compromise that the many Democrats who still accept the old Clintonite “safe, legal, and rare” mantra should be eager to accept.

Malloy Owen is the publicity chair for UChicago Students for Life.

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