The Hyde amendment, which bans the use of federal funds for abortions in all but some exigent circumstances, has been a near-guarantee in annual government spending bills since it was drafted in the 1970s.
Reproductive rights advocates saw this as a sign that the provision might finally be withdrawn, which they felt was critical to offsetting the overturning of Roe v. Wade and the advent of a Republican-controlled House. Republicans, with the backing of anti-abortion groups, doubled down, vowing to vote against any bills that undermined their constituents’ stances against tax dollars funding abortions.
In the end, at some point during closed-door negotiations, Hyde passed during final conference around the 2023 omnibus. Policy experts said it is common for riders and funding levels to change in the final version of the appropriations bills, and because 60 votes are needed to pass a bill in the Senate, modifications require bipartisan compromises.
“And, because the president lacks line-item veto authority, they must sign the appropriations bill as-is, which means policy riders have a high likelihood of becoming law,” according to Indivisible, a progressive advocacy organization.
Now as the White House prepares to talk money all over again in anticipation of Biden’s 2024 budget request, the president may again attempt to upend Hyde’s four-decade precedent. Either way, it will still come down to Congress.
How Hyde works
Undoing Hyde is, in theory, a matter of erasing the language from spending packages, but that’s been unlikely because of the partisan gridlock that has kept the funding ban intact all these years, experts said. Furthermore, removing the amendment would not automatically grant widespread abortion coverage to women covered under other programs with Hyde-like restrictions unless that language was also lifted by congressional action.
It’s why calling Hyde an “amendment” is a bit of a misnomer, explained Jackii Wang, a senior legislative analyst at the National Women’s Law Center.
Hyde is neither law, nor has it been legislatively codified. It’s a statutory provision included in annual appropriations acts.
“We refer to it as the ‘Hyde amendment’ because it was added initially as an amendment and continues to be a rider for the package,” Wang said. “But when it comes down to the brass tacks, it’s really up to the top negotiators [on] what actually comes to the floor to get a vote.”
Suzannah Wilson Overholt, a lawyer for Midwest-based firm Amundsen Davis, said because Hyde is embedded in the appropriations act for agencies, it can be a bargaining chip just like any other element of the budget.
Though it’s hard to know for sure what is said during eleventh-hour negotiations, removing Hyde may come at the expense of passing funding while a shutdown looms, which could explain why the bans have not budged. It comes down to whether legislators are willing to hang their hats on ensuring federal funding for abortions, Overholt said, and risk further stalling a spending bill.
Republicans have said Hyde must be included to honor taxpayers’ stances against public funding for abortions, while Democrats have said lifting the funding ban would remove obstacles for low-income and minority women who have had historically disproportionate access to health care.
How Hyde affects federal employees
When it was first included in 1976, the amendment targeted Medicaid coverage. Today, additional Hyde-like language also restricts federally funded abortions in the Department of Defense, the Indian Health Service, the Veterans Health Administration, Medicare, the Children’s Health Insurance Program, TRICARE, federal prisons and the Peace Corps.
These riders are all distinct in the U.S. Code but have been collectively referred to as the Hyde amendment.
For federal employees, the Financial Services-General Government appropriations bill restricts abortion coverage for those who get their insurance through the FEHB program except in cases of rape, incest or life endangerment. That applies to approximately 335,000 women who are primary policyholders, according to the Guttmacher Institute, a research and policy organization that supports reproductive health.
“Denying anyone insurance coverage for abortion, including federal employees, interferes with their ability to make their own decisions about their lives and futures,” said Morgan Hopkins, president of All* Above All, an abortion justice advocacy group. “And, it pushes care out of reach.”
The abortion restriction on FEHB in particular imposes significant out-of-pocket costs on federal employees and widens the gap between the public and private sector, where abortion-related travel costs have become covered benefits, said Stacey Young, president of DOJ Gender Equality Network, an employee organization of the U.S. Department of Justice that advocates for gender equity and equality.
“Congress has no business actually making decisions about what is in our health care plans,” she said. “They’re not the experts. It shouldn’t be in the realm of their decision making.”
Molly Weisner is a staff reporter for Federal Times where she covers labor, policy and contracting pertaining to the government workforce. She made previous stops at USA Today and McClatchy as a digital producer, and worked at The New York Times as a copy editor. Molly majored in journalism at the University of North Carolina at Chapel Hill.