It was the end of September, 1976. Three years earlier, the U.S. Supreme Court had ruled in Roe v. Wade, upholding women’s Constitutional right to abortion. Many leaders in Congress were outraged. Led by Illinois Representative Henry Hyde, legislators approved an appropriations bill that prohibited federal funding from being used to pay for elective abortions.
The so-called Hyde Amendment, which has been reapproved in various forms by every Congress for the past four decades, has long been a shibboleth for the pro-choice left. Fundamentally, Hyde is about poor women; it only affects those who use Medicaid as their health insurance. Because poor women in the United States are disproportionately women of color, Hyde largely affects women in these groups.
Hyde “has always been understood as a compromise,” said Khiara Bridges, a professor of law at Boston University. “It allows pro-choice folks to be happy because women—‘women’ being read as ‘wealthier women’—to have access to purchasing these services in the market.” At the same time, “anti-choice folks are happy because nobody has to pay for it.”
That status quo changed this summer when the Democratic Party included the repeal of Hyde in its 2016 presidential platform. “The movement really started at the grassroots, with low-income people, people of color, and young people,” wrote California Representative Barbara Lee in an email. “They are helping drive us forward and for the first time in decades, we’ve put the reproductive rights agenda back on the offensive.”
Perhaps party leaders sensed a political opening at the national level as well: Abortion advocates won a major victory in June with the Supreme Court’s decision in Whole Women’s Health v. Hellerstedt, in which the Court ruled that states can’t impose overly burdensome regulations on abortion. By that point, Hillary Clinton had been talking about Hyde on the campaign trail for months. “Any right that requires you to take extraordinary measures to access is no right at all,” she said at a Planned Parenthood event in January.
Nearly 40 years after the amendment first passed, it finally seemed like the party would take on federal funding for abortion. After all this time, as pro-choice groups have said in press release after press release, there is finally momentum on Hyde.
Momentum, however, is much different from the tangible possibility of success. On almost every front, the politics of abortion remain as divided as ever. At the state level, governments could theoretically fund medically necessary abortions through their own Medicaid programs. Only 15 currently do so in practice, according to the Guttmacher Institute, and of those states, 11 only provide funding pursuant to a court order.*
At the federal level, Congress is still mired in conflict: For months, it failed to approve new funding for Zika research—a theoretically bipartisan effort—over disagreements about whether certain Planned Parenthood clinics could use the money. And on the campaign trail, the candidates have been largely quiet about the issue; Lester Holt didn’t ask about abortion, or any reproductive-health issues, at the first presidential debate.
“I was disappointed—this is a huge issue for our country,” said Jennifer Dalven, the head of the Reproductive Freedom Project at the American Civil Liberties Union. “But unfortunately, I can’t say I was surprised. We’ve seen debate after debate after debate in which this issue isn’t surfaced, and we know it’s a tremendously important issue for women, for families, and for voters.”
Most pro-choice groups have been vocal Clinton supporters during this election cycle, eager to talk up the party line and praise her leadership on abortion. But there are limits to what one woman can accomplish from the White House. “Hillary will be great on this, but she needs the Senate and the House,” said Sylvia Law, a professor at the New York University School of Law.
Last summer, Lee introduced the EACH Woman Act, which would effectively repeal Hyde. The bill currently has 124 co-sponsors—roughly two-thirds of House Democrats, but not nearly enough to carry it through Congress. Unless Democrats can pick up at least 30 new seats in the House and roughly five seats in the Senate, Congress will stay red or split—effectively ending the possibility of Hyde’s repeal. Abortion funding for “ordinary poor people? Medicaid coverage? I’m not holding my breath,” Law said.
“There’s been little fights, but we’ve lost them all, basically.”
Even if the prospect of repealing Hyde is unlikely, pro-choice scholars see it as a victory that legislators and advocates are talking about it at all. “I’m actually surprised, to be completely honest with you, about the recent attention that’s been paid to the Hyde Amendment,” said Bridges. “Part of the reason why Hyde has not been as visible … as a subject of political debate is because there hasn’t been any organizing around it. … Those organizations that fight for reproductive rights tend to be led by women with privilege, who aren’t impacted by Medicaid restrictions.”
Under the Affordable Care Act, people with incomes up to 133 percent of the poverty line qualify for Medicaid, although not all states have expanded their Medicaid programs to include this increased number of eligible residents. The recent push to repeal Hyde suggests pro-choice groups might be realigning their priorities to better serve the poor women and particularly women of color who use these services, especially as the proportion of African Americans and Hispanics, who often vote Democratic, grows in the U.S.
Kaylie Hanson Long, the communications director of NARAL Pro-Choice America, a D.C. advocacy group, noted that “we owe everything we’ve got, and all the progress we’ve made on this issue, to these reproductive-justice groups that are led by women of color.”
Some pro-choice advocates have long recognized the importance of public funding for abortion, said Law, but they’ve largely been unsuccessful in advocating for it. Law was one of the attorneys who briefed Harris v. McRae, a 1980 Supreme Court case that upheld the constitutionality of Hyde. “There’s been little fights, but we’ve lost them all, basically,” Law said. “This is the first time that there’s any chance that this might change. It’s wonderful.”
This year, NARAL has campaigns going in five states to support pro-choice legislators—an unusual move for the nationally focused group, Hanson Long said. And the ACLU is pursuing suits in Alaska and Maine that challenge effective restrictions on state funding for medically necessary abortions, Dalven said.
They’re narrow pursuits, but then again, abortion supporters like Bridges feel like “it was only a couple of years ago when it seemed like we would enter the dark ages again,” as Democrats made concessions on abortion funding in the Affordable Care Act in 2010 and the Supreme Court ruled that private employers should not have to include birth control in their employee insurance plans in 2014.
Pro-choice groups’ new efforts, along with the campaign against Hyde, almost seem like an attempt to self-soothe after years of defeat. And perhaps they hope talking up the momentum will make it so—even if it takes another four decades to actually repeal Hyde. Dalven, for one, thinks it can happen. “Absolutely,” she said. “The question is only when.”
* This article originally implied that women have to seek court orders to receive state Medicaid funding for medically necessary abortions in certain states, and misstated the number of states where funding is currently provided. We regret the error.