Hyde Amendment has a bipartisan past but a cloudy future

A man holds signs and prays during the 2012 March for Life in Washington. (CNS/Bob Roller)

A man holds signs and prays during the 2012 March for Life in Washington. (CNS/Bob Roller)

By Mark Pattison
Catholic News Service

WASHINGTON (CNS) — Most people who keep an eye on life issues know the shorthand about the Hyde Amendment — that it bars the federal government from funding abortions through Medicaid.

But the amendment does more than that — although not everything pro-lifers may wish it could do — and with the amendment’s 40th anniversary Sept. 30 just passed, it may do well to remember how it all came about.

It was in 1973 that the Roe v. Wade and Doe v. Bolton cases were decided by the Supreme Court, which ruled that women could obtain abortions virtually on demand. From that point, politicians and citizens opposed to abortion in both parties were looking for ways to overturn the decision, or at least place restrictions on abortion.

It was a time that “we didn’t know which part would claim to be the party of life,” said Michael New, a visiting professor of education at Ave Maria University, during a Sept 29 anniversary observance in Washington sponsored by the March for Life organization.

The bipartisan nature of the Hyde Amendment is reflected in its origin.

According to Bart Stupak, who represented Michigan’s Upper Peninsula for 18 years as a Democrat in the House of Representatives, the amendment was developed by James Oberstar, a freshman Democrat from Minnesota. But because Oberstar was serving on what is now known as the House Transportation and Infrastructure Committee, he didn’t have a path to shepherd the bill.

However, another House freshman, Henry Hyde, a Republican representing Chicago’s northwest suburbs, was a member of the House Judiciary Committee, and could see the amendment through to passage. Hyde and Oberstar, Stupak told Catholic News Service in an Oct. 5 telephone interview, were then co-chairs of the House Pro-Life Caucus.

Because of the huge Democratic gains in the House resulting from public disgust over Republican Richard Nixon’s resignation as president two years previously, Democratic votes were needed to ensure passage. Stupak said Oberstar got Democrats who sat on the Judiciary Committee to vote for the amendment.

The rider passed Sept. 30, 1976, on a 207-167 vote. It was seen as the first significant victory for the pro-life movement. Not only did it bar the use of federal Medicaid funds to pay for abortions, it also banned the use of federal funds to pay for the abortions of women serving in the military outside the United States. In 1980, the U.S. Supreme Court upheld the Hyde Amendment as constitutional.

Today, while abortion opponents still reject the notion that abortion on demand is settled law, the Hyde Amendment itself is not settled law. As a rider to congressional budget appropriation measures, it is subject to renewal with each new federal budget.

“It’s been contentious all the way through those 24 years I’ve been around Washington,” said Stupak, who joined a Washington law firm after leaving Congress in 2011. He is still active with the Washington-based Democrats for Life, and plans to write a book about the history of abortion legislation in Congress.

In 1993, pro-lifers came up a few votes short to renew the Hyde Amendment, Stupak told CNS. Planned Parenthood of Michigan sued to release federal funds for abortion. The court ruled that, absent legislative guidance one way or the other, a federal agency’s policy is equivalent to law, so this permitted the U.S. Department of Health and Human Services to release Medicaid funds to pay for abortions.

When the “Contract With America” Republicans took over both houses of Congress in 1995, the Hyde Amendment was restored. “President (Bill) Clinton, I must say, was always very good about it,” Stupak recalled. “He recognized there were the moderate-conservative Democrats who were very important and very sincere about our position, and he respected that. If we wanted to have Democratic majorities, we needed to have pro-life members.”

The 1996 Democratic Party convention platform — for an election that followed the 1994 congressional licking, not to mention the 1992 imbroglio over party officials refusing then-Pennsylvania Gov. Bob Casey a speaking slot at the convention  because of his pro-life views — tried to erect a big tent. “We were successful at putting a provision in the platform: We realize there is a difference of opinion on the sanctity of life, pro-choice issues, the pro-life members of our caucus are valuable members of our caucus,” Stupak said.

“For 30 years if you will, there was always a truce between pro-life and pro-choice,” he added. But that fell apart in 2007, when “Democrats took back the majority (in both chambers) and (Nancy) Pelosi became speaker. … It was luck. We won our riders, even though the head of the Rules Committee was Louise Slaughter (D-New York), who was head of the Pro-Choice Caucus; to get your rules, you had to get through the Rules Committee.”

At one point, Stupak and other pro-life Democrats had to threaten to attach the Hyde Amendment to every piece of legislation, and scuttle others’ amendments, to force a vote on Hyde.

During the 2009-10 debate over the Affordable Care Act, Stupak inserted the Stupak Amendment into the bill, which would have codified Hyde into law. He won in the House, but could get only 45 votes in the Senate. The Stupak Amendment was a precursor to the No Taxpayer Funding for Abortion Act, which has been introduced in 2011, 2013 and 2015 by Rep. Chris Smith, R-New Jersey, current co-chair of the House Pro-Life Caucus. The 2015 version passed in the House but has languished in the Senate Finance Committee since it was referred there in January 2015.

Carol Tobias, president of the National Right to Life Committee, said she believes the Hyde Amendment should be made permanent. “Having to go through this year by year or every couple of years, however it comes about, is ridiculous,” she declared. “Two-thirds of the American public do not want their tax dollars to be used for abortion. We should not have to go through that to keep that as law.”

But the 2016 Democratic Party platform signaled the opposite with a plank that supports the repeal of the Hyde Amendment. “Rather than expand the culture of death and shred the Hyde amendment — as (Democratic presidential nominee) Hillary Clinton promises — women and men of conscience have a duty to protect the weakest and most vulnerable from the violence of abortion,” Smith said in remarks on the House floor Sept. 28 before the House went into a pre-election recess.

All this still begs the question: If the levers of government can be pulled to keep poor women from getting abortions, what can be done to reduce the abortion rate among women with the financial means to pay for one?

Tobias has a suggestion: “Where the pro-life movement has been very effective in keeping abortion as the issue that no one wants to talk about, it is still not socially accepted. Women might be talking to a co-worker, ‘I won’t be in tomorrow, I have a doctor’s appointment, a dentist’s appointment.’ They don’t say, ‘I’m not coming in to work tomorrow because I’m having an abortion,'” she said.

“By keeping that stigma attached to abortion, that’s why more and more women are not choosing abortion, and choosing life” instead.

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Follow Pattison on Twitter: @MeMarkPattison.

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