The Hyde Amendment Isn't Going Anywhere
Former Vice President Joe Biden’s jettisoning of his longtime support for the Hyde Amendment is being characterized by some on the right as the final abandonment by Democrats of the middle ground in the abortion debate. “This was the last vestige of an olive branch to the pro-life community among Democrats,” said conservative pundit Philip Klein at the Washington Examiner.
But that conclusion overlooks the history of Democrats and the Hyde Amendment, and in turn, the Hyde Amendment’s probable future. Democratic presidential nominees always campaign on repealing the amendment, yet Democratic presidents never actually work toward repeal — because if they did, they would lose the fight.
A little history is in order. The Hyde Amendment did not begin as an “olive branch” by Democrats to pro-lifers. In the wake of the Supreme Court’s 1973 Roe v. Wade ruling, various anti-abortion Republicans proposed a ban on Medicaid funding of abortions. For a few years after the ruling, the federal government did pay for abortions through Medicaid (costing about $200 million a year in today’s dollars), agitating the nascent pro-life movement.
In 1976, Rep. Henry Hyde introduced an amendment to the annual appropriations bill covering health spending that would ban Medicaid funding for abortions, no exceptions. The House passed it, but the Senate initially resisted. Another Republican, Rep. Silvio Conte, brokered a bicameral compromise allowing an exception for when the life of the mother was in danger. The final bill passed with a strong bipartisan majority, though most of the opponents were Democrats.
As the Hyde Amendment is part of annual appropriations bills, the ban gets voted on every year. And it passes every year, not just in the spending bill covering Medicaid but also with other appropriations legislation. Democrats have not seriously tried to repeal the amendment, though in 1993, in the first year of the Bill Clinton presidency, they brought the annual health spending bill to the floor without including it; Rep. Hyde himself forged a bipartisan coalition to successfully put the amendment back in, albeit with the concession of expanding the exceptions to include cases of rape and incest.
President Clinton had run in 1992 on opposition to the Hyde Amendment, as would future Democratic presidential nominees Al Gore, John Kerry, Barack Obama and Hillary Clinton. (Gore, notably, once supported Hyde, and his “evolution” on the subject opened him up to charges of political expediency in the 2000 Democratic primary similar to those being flung today at Biden.) Those who became president soon had to bow to congressional support for Hyde. In Obama’s case, acceptance of Hyde was the price to pay for Obamacare. This “olive branch” didn’t win Obama much praise from the pro-life movement for finding, however grudgingly, some middle ground. But find it he did.
With Biden’s shift on Hyde, aligning him with the rest of the 2020 Democratic field, it is a certainty that the party’s nominee will again support repealing Hyde. Still, if the Democrat defeats Donald Trump, it is nearly as certain that the next president won’t repeal Hyde. A 60-vote Democratic supermajority in the Senate that can break Republican filibusters is mathematically unrealistic. Even if Democrats won a slim majority in the chamber, and that slim majority voted to junk the legislative filibuster (two very big “ifs”), with polls indicating weak support for public funding of abortions, enough purple state Democrats may refuse to go along.
We will likely see another example of Democratic acquiescence on Hyde in a matter of days. The annual health spending bill is coming up for a vote in the Democratically controlled House, and yet again, the bill includes the Hyde Amendment. According to the Washington Post, a tiny group of Democrats is pushing to strip Hyde out, but their amendment may not get a vote, as leaders don’t want to jeopardize passage of the rest of the bill. Not even Planned Parenthood or NARAL Pro-Choice America is lobbying against it; the appropriations legislation has other provisions they support, and they recognize the Hyde fight is a sure loser.
Four House members and seven senators are running for president right now, many of whom were hounding Biden on Hyde mere days ago. They will soon have to vote on Hyde as part of this health spending bill. The Post reported, “All have voted multiple times for spending bills that included Hyde; none responded Friday to questions about whether they would do so in the future.” Perhaps some will now cast a symbolic protest vote, but that might only open them up to charges of their own flip-flopping.
The Democratic acceptance of public sentiment and congressional math regarding Hyde stands in contrast to recent Republican efforts to end federal funding of Planned Parenthood — a policy that does not directly fund abortions and, like Hyde, attracts strong support in polls. In 2015, John Boehner had to resign as speaker to prevent anti-abortion conservatives from provoking a government shutdown over Planned Parenthood funding, freeing himself to cut a bipartisan deal with Democrats. This year the Trump administration, seeing no hope for defunding Planned Parenthood through legislation, issued regulations that would prevent clinics that receive federal family planning funds from providing abortions or referring patients to abortion clinics; those regulations have been temporarily blocked by a federal judge.
In sum, the Democratic olive branch on Hyde remains extended. Perhaps someday a Republican olive branch on abortion will be extended in return.