Hyde Amendment fight just the first step in changing abortion coverage

The fight over abortion restrictions will likely be a major flashpoint in appropriations debates and on the campaign trail

Demonstrators rally outside the Supreme Court in June 2016. The fight over abortion restrictions will likely be a major flashpoint in upcoming appropriations debates and on the campaign trail. (Bill Clark/CQ Roll Call file photo)
Demonstrators rally outside the Supreme Court in June 2016. The fight over abortion restrictions will likely be a major flashpoint in upcoming appropriations debates and on the campaign trail. (Bill Clark/CQ Roll Call file photo)
Posted July 21, 2021 at 6:45am

The partisan fight over whether the federal government will fund abortion coverage for Medicaid beneficiaries threatens to stall action on major appropriations bills, but the on-the-ground impact would be less dramatic than the debate suggests.

Democrats are prioritizing the removal of an annual appropriations rider known as the Hyde amendment, which bans federal funding of abortion except in cases of rape, incest or to protect the life of the woman. The policy, which prevents programs like Medicaid or the Children’s Health Insurance Program from using federal money to cover abortion outside of those three situations, has been in every spending law since 1976.

Additional legislative action outside of the fiscal 2022 Labor-HHS-Education funding bill would be needed to broaden abortion coverage for women who receive care through departments such as Defense or Veterans Affairs.

It would be challenging to remove a long-standing abortion policy that every lawmaker who voted for Labor-HHS-Education funding in previous years allowed to continue.

Even if changes to Hyde become law, the effects would be muted, based on state abortion policies, said Laurie Sobel, the Kaiser Family Foundation associate director for women’s health policy.

“It certainly would signal a change in federal policy in the willingness to fund abortions. But given that Medicaid is a federal-state program, there's room for the states to make their own policies,” she said. “It wouldn’t change the policy across the country. What it would do would be to provide federal support for the states that choose to provide abortion services under their Medicaid program.”

Sobel said that unless abortion becomes required under Medicaid, states that oppose the policy could continue to exclude abortion as a benefit. Changing federal benefits is a complicated process.  

Essentially, she said, if the Hyde amendment were to go away at the federal level without any benefit changes, then states that cover abortion could obtain a federal matching payment for those services. But states that do not want to cover abortion would not have to do so. 

“The only real impact would be that the states that include abortion currently would be able to pull down the federal match,” she said.

Data on how many abortions are currently covered by federal funding under the three exceptions is limited.

A 2019 Government Accountability Office report, using state-reported numbers, said the average number of abortions eligible for federal funding per year between 2013 and 2017 was about 1,339 or fewer.

But the number acknowledges various gaps in data, including for several states and for services covered by managed care.

Separate data from 2014 shows that in states that follow Hyde restrictions, Medicaid covered only 1.5 percent of abortions.

“There's very few cases of Medicaid paying for abortion in the Hyde states. Even for the cases of rape, incest and life endangerment, it’s very few abortions being paid for because you have to jump through a whole bunch of hoops to get it covered,” said Sobel.

Meanwhile, the overall number of abortions performed in the United States has been falling.

Still, the fight over abortion restrictions will likely be a major flashpoint in appropriations debates and on the campaign trail. The House is expected to vote next week on a package of seven fiscal 2022 spending bills that will omit the Hyde limits. It’s unlikely that Republicans will sign on without the restrictions.

Democrats say repealing the Hyde amendment would remove barriers for low-income women and women of color who are disproportionately affected by the ban.

But Republicans say the Hyde amendment protects the rights of taxpayers who oppose abortion and has increased the nation’s birth rate.

Differences among states

States can use their own funding to provide abortion coverage for Medicaid and CHIP outside of the three Hyde amendment exceptions, but only 16 do, including Illinois, Maryland and New York.

California is the most populous state that covers abortion broadly. Enrollees don’t pay out-of-pocket costs or have to give medical justification.

Without Hyde limits, the biggest changes might be seen in left-leaning states, like Colorado or Delaware, that currently do not cover most abortions under Medicaid except for the three allowed circumstances.

Thirty-three states and the District of Columbia do not cover abortion except under the three Hyde exceptions for individuals with federal coverage. Additionally, South Dakota, the only state with abortion funding restrictions more restrictive than Hyde, covers abortion under Medicaid only when necessary to protect the life of the woman.

The Guttmacher Institute, which supports abortion rights, estimates that 7.8 million women of reproductive age are covered by Medicaid in these 34 states and D.C., and half of them are women of color.

Elizabeth Nash, interim associate director of state issues at the Guttmacher Institute, said any changes to allow more abortion funding would not have an immediate effect. 

For instance, abortion providers would only be paid if they are Medicaid providers. Nash said state officials who oppose abortion could make it harder for providers to become Medicaid providers or increase red tape.

“I really do think that the lag time will unfortunately be an issue,” she said.

Guttmacher national data also shows that among women of reproductive age, 29 percent of Black women and 25 percent of Hispanic women had Medicaid coverage in 2019. That number drops to 15 percent for white women and 12 percent for Asian women.

Researchers at the Advancing New Standards in Reproductive Health, or ANSIRH, program within the University of California, San Francisco’s Bixby Center for Global Reproductive Health conducted a national study of individuals who were searching online for abortions.

The April study found that residents of states that do not have broad Medicaid coverage of abortion faced more financial barriers and spent more time seeking an abortion. It found Black and Latina women were more likely than white and Asian women to still be pregnant and seeking an abortion when followed up with four weeks later.

“These findings indicate that restoring federal Medicaid coverage of abortion by repealing the Hyde Amendment would remove an often insurmountable barrier to abortion care for low-income people,” the researchers wrote.

ANSIRH data from a 2018 report showed that women who end up giving birth instead of getting a wanted abortion saw an almost four-fold increase in the odds that their household income was below the federal poverty level.

Kaiser Family Foundation data suggests that if abortion coverage were available across Medicaid, more women would have abortions. But the number of Medicaid-funded abortions would depend on factors like the number and availability of local abortion providers, state-level restrictions on abortion, income demographics and local reimbursement rates.

For some low-income women, not having coverage of abortion serves as a de facto ban.

A 2019 peer-reviewed study in BMC Women’s Health showed that in Louisiana, 29 percent of pregnant women who qualify for Medicaid would have had an abortion if it were covered.

Destiny Lopez, co-president of All Above All, which supports repealing the Hyde amendment, called abortion access in the U.S. “a patchwork and a puzzle.”

“You have created an unfair and unjust system because women with means will always be able to get an abortion in this country,” Lopez said.

Hyde amendment supporters see it differently.

Michael New, a research associate of political science and social research at The Catholic University of America and Charlotte Lozier Institute associate scholar, does not want Hyde removed.

The Charlotte Lozier Institute, the research arm of the conservative Susan B. Anthony List, estimates that the Hyde amendment resulted in 2,409,311 births from 1976 to 2020.

“I think that researchers, both pro-life and researchers who support legal abortion, pretty much all agree that the Hyde amendment lowers the abortion rate and saves lives,” he said.

He disagrees that Hyde singles out certain people.

“Hyde is a policy that encourages women to seek life-affirming alternatives like pregnancy help centers and other resources for support. I don't think Hyde is targeting people. I think it’s protecting people,” New said.

Capitol Hill outlook

The fight over the Hyde amendment is just beginning. The House Appropriations Committee advanced its fiscal 2022 Labor-HHS-Education spending bill on Thursday, with all Republicans voting against the measure.

“It’s my hope that members on both sides of the aisle and in both chambers can negotiate spending that is responsible and will not lead to financial disaster. But the first step toward negotiation is the full reinstatement of the Hyde amendment,” said House Labor-HHS-Education Appropriations ranking member Tom Cole, R-Okla., who offered an amendment during the markup to restore Hyde language into the bill. 

It was rejected, with only one Democrat, Henry Cuellar of Texas, voting for it.

Senate Republicans already said they won't support a spending bill without Hyde language. 

Sen. Mike Braun, R-Ind., an appropriator, went to the House markup to show his support for the language. Senate Minority Leader Mitch McConnell also spoke on the Senate floor Thursday in favor of Hyde limits.

Republican opposition to changing this policy has not stopped Democrats from moving forward, which has the blessing of President Joe Biden. Biden had supported Hyde before announcing in 2019 he had changed his stance.