Why did Biden leave the anti-abortion Hyde Amendment off his budget request?

As a senator, Biden supported the Hyde Amendment, which bans use of federal funds for abortion. Abortion opponents claim he’s bowing to political pressure.

President Joe Biden’s budget proposal for 2022 breaks ranks with four decades’ of history by omitting a ban on using taxpayer dollars to pay for abortion.

The Hyde Amendment was first attached to the fiscal 1977 Medicaid appropriation. It said that abortion could not be funded by federal Medicaid money unless the woman’s life was endangered by the pregnancy. Exceptions for rape and incest were later added.

The American Civil Liberties Union, which supports federal funding of abortion, said abortions paid for by Medicaid decreased to a few thousand from about 300,000 a year as a result of the amendment. In 2019, nearly 14 million women of childbearing age were on Medicaid — that’s 1 in 5 women ages 15-49, according to the Kaiser Family Foundation

Though Congress has the final word on the budget, leaving the amendment out of the proposal is believed to signal a change in Biden’s personal position on the issue.

“For more than four decades, the Hyde Amendment, an annual budget rider, has prohibited federal Medicaid funding of abortion except in rare circumstances. For most of that time, Joe Biden supported the Hyde Amendment,” the National Review reported. “‘The government should not tell those with strong convictions against abortion, such as you and I, that we must pay for them,’ Biden wrote to a constituent in 1994. Biden finally decided to support Medicaid funding of abortion in June 2019 because of pressure from Democratic rivals and progressive activists during the presidential primary.”

Public polls generally find most Americans, including many who are not opposed to abortion, do not want taxpayer dollars to pay for abortion.

“In every poll, a plurality of Americans opposes public funding of abortions. In every poll but one, that plurality is a majority,” Slate reported. “The questions vary, but the result is the same.” Slate noted that respondents support banning federal abortion funding except in rape cases or to save the woman’s life, according to a 2019 Politico/Morning Consult poll, as well as surveys by PRRI (2018), Marist (2019) and Politico/Harvard (2016). The findings were true as well in a 2016 YouGov poll.

“These polls aren’t close. The average gap between the pro-funding and anti-funding positions is 19 percentage points,” the article said.

Slate cited the YouGov poll: While “66% of respondents said abortion decisions should be made by a woman and her doctor, 55% supported barring the use of federal funds. A lot of people seem to think that the right to choose abortion is compatible with the right not to pay for other people’s abortions,” Slate added.

A history of change

The Hyde Amendment is named after former Rep. Henry J. Hyde, R-Ill., who was noted for his opposition to abortion.

By the early 1980s, the ban on use of federal funds for abortion spanned much further than Medicaid. According to the Kaiser Family Foundation, the Children’s Health Insurance Program, Indian Health Services, Medicare, federal health insurance for military families, immigration enforcement, Veterans Affairs, the federal prison system, federal employee insurance, the Peace Corps and residents of Washington, D.C., were all subject to the ban.

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The House approved making the Hyde Amendment permanent in 2017, but the Senate never considered that measure.

Other laws have also tackled public funding for abortion. In 1980, the United States Supreme Court upheld the constitutionality of states creating their own versions of the Hyde Amendment. Some states have added provisions that allow government funding of abortion in case of fetal impairment or when the pregnancy threatens “severe health problems” for the woman.

A Guttmacher Institute briefing says that as of June 1, 33 states and Washington, D.C., follow the federal standard that no abortion can be paid for with federal funds except in cases of life endangerment, rape and incest. Four provide state funds for abortion “in cases of fetal impairment.” Another four, including Utah, fund abortions to prevent “grave, long-lasting damage to the person’s physical health.” It says one state doesn’t apply the federal exceptions to the ban for rape or incest. And 16 states direct Medicaid to cover all or most of the cost of medically necessary abortions — seven of them voluntarily, while the other nine follow the guidelines under court order.

Other amendments address use of federal funding for abortion in different arenas. The Helms amendment, for example, bars U.S. foreign aid from paying for abortion or to promote abortion. Helms preceded the Hyde Amendment. And the Mexico City policy, created in 1984 by then-President Ronald Reagan — the so-called “global gag rule” — prevents foreign nongovernmental organizations that get money from the U.S. for family planning from using any funding, regardless of the source, to provide abortion services, counseling or referral for abortion. Ever since, Republican presidents have invoked that policy, while Democrat presidents have revoked it, according to Guttmacher Institute

Guttmacher said the United States is the “leading donor in the field of international family planning and reproductive health,” which it deemed an effective tool to prevent unplanned pregnancies.

Divisive issue

Reaction to not including the amendment in the president’s budget proposal has been swift — and widely divided.

President “Joe Biden used to support the Hyde Amendment, before he realized he couldn’t get the Democratic Party nomination without making big promises to the abortion lobby,” Eric J. Scheidler, executive director of the Pro-Life Action League, told the Deseret News by email. “Now abortion policy is being set by Planned Parenthood, rather than the American voters Biden claims he wants to unite. Americans are united in their opposition to taxpayer funding of abortion, but Biden is ignoring them to do Planned Parenthood’s bidding.”

The U.S. Conference of Catholic Bishops has been debating whether to allow Biden and other elected Catholic officials to take communion if they support abortion rights. NPR reported that the 158 Catholics in Congress don’t all agree on abortion. It said that the Vatican’s “top enforcer of doctrine,” Cardinal Luis Ladaria counseled against withholding communion. He warned in a letter that such a policy would first require conversations among the Catholic bishops and then with the politicians who might be impacted.

The chairman of the conference directly addressed removing the Hyde Amendment. “No member of our great nation is weaker, more vulnerable, or less protected, than the child in the womb,” said Archbishop Joseph F. Naumann of Kansas City in Kansas. “There are aspects to President Biden’s budget proposal that will assist vulnerable people. However, Congress must reject the administration’s proposal to subsidize the deaths of unborn children,” noting both broad bipartisan agreement and diverse support among citizens.

Among those hailing the omission of the amendment, Fatima Goss Graves, president and CEO of the National Women’s Law Center, released a statement that said budgets represent a nation’s values “and Biden’s budget is an examination of what it means to truly center women and their families in our nation’s recovery. Removing barriers to abortion care is a critical part of these efforts.”

She called leaving the amendment out of the budget “an important first move toward ending the many ways our federal budget and policies make it harder to access this critical care,” and said the bans put the “heaviest burdens on people of color and those who can least afford care.

“We now turn to Congress to take bold action that protects everyone’s right to available and affordable abortion care,” she said.  

The American Civil Liberties Union has called “restoring abortion funding for poor women … an immediate priority for the ACLU Reproductive Freedom Project.” State and federal rules, the agency says, “make it impossible for Medicaid recipients to exercise their constitutional right to safe and legal abortion.”

While the Hyde Amendment could change federal funding policy, state legislatures are also taking aim at abortion in unrelated measures, many of them hoping to capitalize on a conservative shift in the Supreme Court. Some predict Roe v. Wade, which legalized abortion, will be whittled down.

By May 16, state legislatures had introduced 549 new abortion restrictions, including 165 abortion bans in 47 states. Guttmacher reported that “a whopping 69 of those restrictions have been enacted across 14 states, including nine bans.” 

Those opposed to abortion are pinning hopes, as well, on a case the Supreme Court has agreed to consider. The Mississippi law being challenged bans most abortions at 15 weeks. NPR calls it a case that could “open the door to deeply eroding Roe” and related precedents guaranteeing abortion rights.”

“Abortion destroys both lives and families,” said Terry Schilling, president of the American Principles Project. “For this reason, it is highly encouraging to see the Supreme Court agree to take up the case of Mississippi’s law protecting the unborn. 

“Half a century of legalized abortion has been devastating on the American family. If the death of over 60 million unborn children weren’t bad enough — and it is horrifying — research has also suggested a connection between the legalization of abortion and our country’s collapsing marriage rate,” Schilling told the Deseret News.

He said he hopes the Supreme Court will “finally address the pernicious anti-life, anti-family precedent of Roe v. Wade” and declare laws like Mississippi’s constitutional.