The Hyde Amendment has blocked millions of women from being able to obtain an abortion, but that could change now.
But unlike Donald Trump, President-elect Joe Biden opposes Hyde, and his election doesn't bode well for the discriminatory law.
The amendment, named for former GOP Rep. Henry Hyde, a staunch opponent of abortion rights, first became law in 1976. With narrow exceptions, the law bans any Medicaid funds from being used for an abortion.
Fifteen states circumvent this restriction by covering abortion with state funds. Still, across the rest of the country, the law serves as a significant obstacle for poor people to obtain an abortion.
While running for president in 2016, Trump aligned himself with anti-abortion activists who wanted to make the Hyde Amendment permanent. Currently, the law requires reauthorization every year. Within a week of Trump taking office, the then-GOP-controlled House passed a law making the measure permanent, but it never came up for a Senate vote.
Many Democratic lawmakers have consistently voted in favor of Hyde, but in 2016 the party made repealing Hyde an official part of its platform. For decades, Biden had supported Hyde, but he reversed that position in 2019.
Biden did so in part thanks to reproductive health groups, including NARAL Pro-Choice America and Planned Parenthood, who pointed out to him that supporting Hyde also meant supporting restricting access to abortion for people of color and poor people.
The effects of Hyde have been well-documented for years. Women of color are disproportionately likely to be impoverished and therefore insured through Medicaid. Seven million women of childbearing age are affected by the Amendment and can't get Medicaid funding for abortion. Over 50% of those are women of color.
When people can't use Medicaid funding, they may have a delay in obtaining an abortion or may not be able to get one at all. Last year, research group Advancing New Standards in Reproductive Health looked at the effects of Hyde in Louisiana. What they learned was that roughly 29% of people who would have chosen to have an abortion if it had been covered by Medicaid instead had to give birth.
As president, Biden can't single-handedly end Hyde. However, he could start by taking some other actions, such as rescinding a 2010 executive order that stated that Hyde Amendment restrictions remain intact under the Affordable Care Act and required "strict compliance" with prohibitions on using any tax credits or cost-reduction payments to pay for abortions. Rescinding that order would begin to decouple Hyde from the Affordable Care Act and pave the way for further expansion of abortion availability.
Biden can also help shepherd a permanent rollback through Congress, particularly if Democrats take the Senate following the Georgia runoff elections in January.
The EACH Woman Act, sponsored by several senators — including Vice President-elect Kamala Harris — was proposed in 2019. The proposal would reverse the Hyde Amendment and ensure that abortion would be covered by Medicaid.
In the event the Democrats do take the Senate, Harris, in her role as vice president, could serve as a tiebreaking vote on EACH or other abortion rights legislation. That's similar to the role Trump's Vice President Mike Pence fulfilled for Trump, casting a tie-breaking vote in 2017 on a bill that targeted funding for Planned Parenthood.
Biden can also use a mixture of executive actions and regulations, just as Trump did. The Trump administration imposed the "domestic gag rule," which bars abortion providers from receiving any Title X funds. Title X provides federal money for birth control and other family planning services for people with low incomes. A Biden administration could reverse that rule.
And where Trump packed federal agencies with anti-abortion zealots, Biden can install people who understand the necessity of robust reproductive health services.
The Hyde Amendment has harmed poor people and people of color for decades, but its time could be at an end.
Published with permission of The American Independent Foundation.