Defending Hyde: An abortion policy most Americans can embrace
We are told that abortion is one of the most divisive issues in American politics, but one thing has remained remarkably consistent: Most Americans oppose taxpayer funding for abortion. Therefore I was startled recently to see an article by Jessica Arons of the Center for American Progress (The Daily Beast, 9/30) deploring the 36th “unhappy birthday” of the federal abortion funding ban known as the Hyde Amendment—and tagging it as “the amendment that started the war on women.”
“War on women” is the slogan now used to label objections to the Obama administration’s mandate for contraception and sterilization coverage in almost all private health plans, including plans provided by many Catholic employers. The slogan has always shed more heat than light. The mandate in question is as much an imposition on women who do not want to be forced to pay for these items as it is on their employers. And objections arose precisely because the mandate itself is an unprecedented innovation in federal law, threatening to derail a longstanding balance between “pro-life” and “pro-choice” voices in our society.
Since the Supreme Court cases in Eisenstadt v. Baird (1972) and Roe v. Wade (1973), the government has not had legal authority to prevent women who want contraception, sterilization or even abortion from choosing them. But those who disagree have not been forced to facilitate or purchase these drugs and procedures, or to pay taxes for them in the case of abortion. The breakdown of that balance—symbolized in the current Democratic platform’s pledge to uphold women’s right to abortion “regardless of ability to pay”—is increasingly visible.
The Hyde Amendment, in particular, is an odd choice for emphasizing the extremism of the pro-life side. It first took effect on Oct. 1, 1976, sponsored by Republican Henry Hyde of Illinois, but passed by a House and Senate that were overwhelmingly Democratic. As a rider to the annual appropriations bill governing domestic federal health programs, it has been renewed with little change for 36 years, supported by congressional majorities and presidents of both parties as well as by public opinion. It would be difficult to name an abortion-related policy that has garnered more bipartisan support over a longer period of time.
Challenges to the Amendment
The amendment was not always so secure. When first enacted 36 years ago, it faced three objections or challenges: It was said to endanger women’s lives, conflict with the right to abortion defined in Roe v. Wade and even impose an unconstitutional “establishment of religion.”
First, in the years following enactment, government officials and private researchers who opposed the amendment scoured the nation, seeking evidence that it had driven many low-income women to unsafe “back alley” abortions that endangered their lives. They could not find that evidence. The Centers for Disease Control and Prevention found “no evidence of a statistically significant increase in the number of complications from illegal abortions,” but rather a decrease in reported complications from legal abortions.
Second, opponents filed suit against the amendment to claim that it violated the newfound constitutional “right” to abortion—and specifically that it nullified that right for low-income women who cannot otherwise afford to pay for an abortion. But in the landmark case of Harris v. McRae in 1980, the Supreme Court explained that the abortion right, like most constitutional rights, is a right to be free from government interference. In other words, it did not translate into a right to demand active government assistance to obtain abortions.
Third, these suits argued that the amendment rested on nothing but theological ideas about “when life begins” and the moral wrongness of abortion—ideas that could not be written into law without violating constitutional guarantees against an “establishment of religion.” But here, too, the Supreme Court showed a great deal of common sense. The court said it could not find all laws against larceny unconstitutional just because the Bible has a commandment against stealing. Whatever views may be held by different religions, the Hyde Amendment served a legitimate secular interest—that of “encouraging childbirth over abortion” in all but the most extreme circumstances. After all, said the court, “[a]bortion is inherently different from other medical procedures, because no other procedure involves the purposeful termination of a potential life.”
In later cases the court has moved away from the biologically uninformed term “potential life.” In Planned Parenthood v. Casey in 1992, for example, the justices said the government may regulate (though not prohibit) abortion in ways that “express profound respect for the life of the unborn” (emphasis added). Such regulations have been passed in many states and have had a real impact on abortion rates.
As for Hyde itself: If it has not endangered women, violated Roe or established Catholicism as the official religion of the United States, what has it done? Chiefly, it has done something that people on all sides of the abortion debate say they want—it has reduced abortions.
Before Hyde went into effect, the federal Medicaid program was paying for almost 300,000 abortions a year for low-income women. Legal authorities had concluded that once abortion was permitted as a medical procedure under Roe, the Medicaid statute’s general requirement for funding all “medically necessary” procedures covered any abortion that a woman and her physician agreed on—unless Congress passed a law stating otherwise. Under Hyde, the number of federally funded abortions plummeted to a fraction of one percent of this figure, and has stayed there.
This does not mean that the amendment has prevented 300,000 abortions a year nationwide. Seventeen states provide their own public funding for abortion for Medicaid-eligible women, usually because state judges have declared an abortion “right” in state constitutions that goes beyond Roe v. Wade to demand public funding. And many women covered by the amendment have used private resources to have abortions. But by conservative estimates, a ban on public funding of abortion in programs like Medicaid reduces abortions among women in the program by about 20 to 35 percent.
Some estimates go further. In 2002, a study in the journal of the Guttmacher Institute (formerly the research arm of Planned Parenthood) found that the abortion rate among Medicaid-eligible women is twice that of other women in states that do not provide public funding for abortion. If the state does fund abortions, these women’s abortion rate doubles again, rising to four times the rate of other women.
Mother and Child
A question has circulated among Catholics for some time about reducing abortions: Do we achieve this by combating poverty or by passing abortion funding bans and other pro-life laws? The answer to the question is: Yes. We need to do both, especially because we reverence the dignity of both the mother and her child. But if you want to reduce abortion rates, even while abortion remains legal under Roe, laws like the Hyde Amendment provide an important part of the answer.
Even more remarkably, some studies have concluded that unintended pregnancy rates are lower in states that ban public funding of abortion: When abortion is more expensive, or harder to access in other ways, men and women take more care not to begin a pregnancy in the first place.
By contrast, programs to expand access to contraception have often failed to reduce unintended pregnancies or abortions. An apparent exception, a new study in St. Louis called Contraceptive Choice, claims to have reduced both pregnancy and abortion rates among low-income women. But it required persuading 75 percent of the subjects to accept a hormonal implant or an intrauterine device that can be removed only by a physician; participants were then regularly followed throughout the study to make sure they stayed with the program.
For 36 years the Hyde Amendment has reduced abortions, encouraged men and women to be more responsible about risking pregnancy and respected the consciences of the majority of taxpayers who morally object to abortion. More broadly, it has implemented a federal policy of seeking to respect unborn life and prefer live birth to abortion, even while abortion remains legal. It is the most positive federal policy to be maintained on abortion since Roe was handed down almost 40 years ago. If abortion advocates want to attack it as part of an alleged “war on women,” that may only highlight the extreme nature of their own agenda.