Why Democrats Ditched the Hyde Amendment

There used to be a middle ground in the national conversation on abortion. Not anymore.

Senator Joe Biden with President Jimmy Carter in 1978. At that time, both Democrats supported a ban on federal funding for abortion. (Barry Thumma / AP)

Despite promises from 2020 presidential candidates and efforts from left-wing Democrats, the ban on federal funding for most abortions remains in place. This week, amid spending negotiations in the House, a freshman representative from Massachusetts, Ayanna Pressley, pushed a proposal to eliminate the Hyde Amendment, which bans reimbursement for most abortions through programs such as Medicaid, from the Health and Human Services budget. Democratic leaders quickly shut Pressley down, refusing to even bring her amendment to the House floor for a vote. Speaker Nancy Pelosi said she doesn’t “see an opportunity to get rid of [Hyde]” given Republican control of the White House and Senate. This quiet face-off contrasts with the anti-Hyde rhetoric Democratic candidates are using on the 2020 campaign trail; even former Vice President Joe Biden, who consistently voted for the abortion-funding ban throughout his career in the U.S. Senate, recently bowed to pressure to reverse his position.

Since the Hyde Amendment was first attached to the federal budget in 1976, it has proved remarkably resilient, surviving multiple court cases and congressional challenges. The funding ban was just as contentious in the 1970s as it is today: Henry Hyde, the Republican representative from Illinois who was the amendment’s ardent defender and namesake, viewed it as a way to save unborn lives “which otherwise might be destroyed with the use of taxpayers' funds.” Hyde’s progressive opponents, such as Democratic Representative Elizabeth Holtzman of New York, called it cowardly, creating a form of discrimination against poor women that “is both morally [and] constitutionally repugnant.”

[Read: 2020 Democrats are going all in on abortion]

In the years since Hyde first passed, however, the debate about abortion in America has transformed. The abortion conversation in the 2020 race is already wildly different than it was in 1976, when both the Democratic and Republican presidential nominees, Jimmy Carter and Gerald Ford, respectively, said they opposed abortion. While American public opinion has remained mixed on this issue, largely favoring legalized abortion with limitations, the two parties now represent the extremes of the debate. Hyde might still be with us, but gone are the days of compromise that allowed politicians to remain somewhere in the middle on abortion, signaling to voters that they respected their feelings of moral complexity.

The Supreme Court established a constitutional right to abortion in 1973 with its decisions in Roe v. Wade and Doe v. Bolton, stating that abortion is protected up to the point of fetal viability outside the womb and occasionally afterwards, if the mother’s health is endangered. In the years immediately following these decisions, the federal government paid for abortions through Medicaid, covering an estimated 250,000 to 300,000 procedures per year. In 1974, the year after Roe was decided, this accounted for roughly one-third of all abortions nationwide. The cost to taxpayers was between $45 and $55 million per year.

[Read: How Biden’s campaign confronted him on abortion]

Just a few years later, Hyde’s proposed ban on federal funding for abortion brought congressional business to a months-long standstill. In those years, the House of Representatives was considered more strongly anti-abortion than the Senate. In the summer months of 1976, the two chambers kept coming up short in negotiations over Hyde’s amendment to the appropriations bill that determined the budget for the Department of Labor and what was then the Department of Health, Education, and Welfare (later named the Department of Health and Human Services). By September, legislators reached a compromise, moderating the original, total ban to allow funding for abortions when “the life of the mother would be endangered if the fetus were carried to term.” President Gerald Ford vetoed the appropriations bill because it exceeded his proposed budget, but Congress overrode his decision.

In Congress’s final debates before Hyde became federal law, legislators spoke of how high the stakes felt. Bella Abzug, a prominent feminist and Democratic representative from New York who opposed the ban on abortion funding, argued that “a majority of Americans believe the abortion decision should be left up to the woman and her doctor, free from government interference. This must apply equally to poor women as well as rich women.” This was a common view among women’s-rights activists and progressive Democrats at the time, who opposed the amendment. Hyde, who did not support the bill’s expanded spending, voted to override Ford’s veto anyway, because he thought the federal-funding ban was so important: “Human life cannot be measured in terms of dollars,” he said. “My choice is as clear as it is unpleasant.”

As all of this was happening in Congress, a presidential contest was under way. During the 1976 Democratic primary, candidates were repeatedly asked about their views on a constitutional amendment banning abortion, which had by then gained significant traction among abortion opponents. Prominent Democrats such as Birch Bayh of Indiana and Sargent Shriver, the founder of the Peace Corps, underscored their personal moral opposition to abortion, but would not support a constitutional amendment banning the procedure. Alabama’s notorious segregationist governor, George Wallace, backed a constitutional ban. Carter, the Georgia Democrat who eventually won the party’s nomination, said he preferred a federal statue restricting abortion. During the general election that fall, both Ford and Carter said they opposed federal funding for abortion.

[Read: The new abortion bills are a dare.]

Hyde officially became part of federal law on September 30, 1976. The ban on federal funding for abortion did not permanently go into effect for several more years, however, as various courts weighed whether it was constitutional.* Finally, in its 1980 decision in Harris v. McRae, the Supreme Court determined that states participating in Medicaid were not required to fund abortions, and that Hyde did not violate the Constitution. The ban on federal funding went into effect. While it has shifted in form, it has remained in place ever since.

Public opinion on abortion has been steady since the early years after Roe. In 1976, the year Hyde was passed into law, 54 percent of Americans believed abortion should be legal only under certain circumstances, according to Gallup. Four decades later, in 2018, 50 percent of Americans said the same. What has changed, however, are the politics of abortion, which have become sharply polarized after years of intense activism on both sides of the debate. In 1978, the Republican senator from Pennsylvania, Richard Schweiker, wrote a letter to the editor of The New York Times protesting efforts to link the anti-abortion movement to right-wing Catholics, calling it “a smear against millions of Americans deeply opposed to ‘abortion on demand.’” He praised his Democratic colleagues who supported the ban on federal funding for abortion, including Biden, who was about to win his second term as a U.S. senator from Delaware.

Democrats are not ready to fully take on the Hyde Amendment, at least not in Congress; Pressley’s recent revolt was mostly symbolic. But today’s Democratic Party is more Abzug than Carter: Its leaders have united around describing abortion using the language of discrimination in health care, rather than compromise on a morally challenging issue. The Democratic dream of 2020 is not just to take back the White House, which would allow party leaders to appoint a generation of judges and justices who will support abortion rights. Democrats want to maintain the House and reclaim the Senate as well. If that happens, the reluctant truce that’s held since 1976 may end. If Democrats have their way, taxpayers will fund abortion once again.

* This article originally stated that the Hyde amendment did not immediately go into effect after passing. In fact, the amendment was enacted for a short period in the late 1970s.