The Departments of Labor, Health and Human Services, and Education, and Related Agencies Omnibus Appropriations Act of 2009 (H.R. 1105), signed into law Mar. 11, 2009 (Public Law 111–8), provides the text of the Hyde Amendment law, in part, as follows:
"SEC. 507. (a) None of the funds appropriated in this Act, and none of
the funds in any trust fund to which funds are appropriated in this
Act, shall be expended for any abortion...
SEC. 508. (a) The limitations established in
the preceding section shall not apply to an abortion - (1) if the
pregnancy is the result of an act of rape or incest; or (2) in the case
where a woman suffers from a physical disorder, physical injury, or
physical illness, including a life-endangering physical condition
caused by or arising from the pregnancy itself, that would, as
certified by a physician, place the woman in danger of death unless an
abortion is performed...
(d) - (1)
None of the funds made available in this Act may be made available to a
Federal agency or program, or to a State or local government, if such
agency, program, or government subjects any institutional or individual
health care entity to discrimination on the basis that the health care
entity does not provide, pay for, provide coverage of, or refer for
abortions. (2) In this subsection, the term 'health care entity'
includes an individual physician or other health care professional, a
hospital, a provider-sponsored organization, a health maintenance
organization, a health insurance plan, or any other kind of health care
facility, organization, or plan."
[Editor's Note:The Hyde Amendment first passed as an amendment to the Departments of Labor, Health, Education, and Welfare (now the Department of Health and Human Services) annual Appropriations Act on Sep. 30, 1976 by the US House in a 207-167 vote. Authorized Health and Human Services programs are provided funds annually through the passage of its appropriations bill.Along with the bill, the Hyde Amendment has been renewed with various revisions every yearsince its inception. Above is the Hyde Amendment's current (as of Feb. 11, 2010) version.]
Does the Hyde Amendment, Prohibiting the Use of Federal Funds for Abortions and Allowing Health Care Professionals to Refuse to Perform Abortions, Conflict with Women's Reproductive Rights?
The American Civil Liberties Union (ACLU) wrote the following information in its July 21, 2004 report titled "Public Funding for Abortion," published on its website, www.aclu.org:
"The Hyde Amendment and other bans
should be repealed because they are discriminatory and harm women's
health. If a woman chooses to carry to term, Medicaid (and other
federal insurance programs) offer her assistance for the necessary
medical care. But if the same woman needs to end her pregnancy,
Medicaid (and other federal insurance programs) will not provide
coverage for her abortion, even if continuing the pregnancy will harm
her health. The government should not discriminate in this way. It
should not use its dollars to intrude on a poor woman's decision
whether to carry to term or to terminate her pregnancy and selectively
withhold benefits because she seeks to exercise her right of
reproductive choice in a manner the government disfavors...
Our tax dollars fund many programs that individual people oppose. For
example, those who oppose war on moral or religious grounds pay taxes
that are applied to military programs. The congressional bans on
abortion funding impose a particular religious or moral viewpoint on
those women who rely on government-funded health care. Providing
funding for abortion does not encourage or compel women to have
abortions, but denying funding compels many women to carry their
pregnancies to term. Nondiscriminatory funding would simply place the
profoundly personal decision about how to treat a pregnancy back where
it belongs - in the hands of the woman who must live with the
consequences of that decision."
The Alan Guttmacher Institute (AGI), a sexual and reproduction research organization, reported in its Apr. 2000 report "Rights Without Access: Revisiting Public Funding of Abortion for Poor Women":
"One of the first concerns immediately following the Hyde Amendment's initial implementation was whether large numbers of poor women would resort to illegal or self-induced abortions as a result of the public policy change. Indeed, a 1979 study by the Center for Disease Control... linked four deaths to the unavailability of Medicaid funding.
Six million women of reproductive
age obtain health care through the Medicaid system... The results [of
studies] show, with little exception, that restrictions on funding have
considerable impact on women's reproductive decisions. In the absence
of funding, a significant percentage of pregnancies that would have
otherwise been aborted are instead carried to term...
Studies also have found
that women who are able to raise the money needed for an abortion do so
at a great sacrifice to themselves and their families...
women wait on average 2-3 weeks longer than other women to have an
abortion because of difficulties they have in obtaining the necessary
funds... Such delays also can have health implications, because the
risk of complications following an induced abortion increases as the
procedure is done later in gestation."
The Michigan Daily, a student newspaper at the University of Michigan, reported in its Nov. 4, 1997 editorial titled "Desperate Measures: Medicaid Could Reduce Dangerous Abortions":
"Kawana Ashley, a 19-year-old Florida resident, shot herself in the
stomach after failing to raise enough money for an abortion. Doctors
delivered her child by an emergency Cesarean section, but it died of
organ failure two weeks later. Ashley was charged with third-degree
murder and manslaughter... [T]he Florida Supreme Court
struck down both charges, ruling that a woman cannot be prosecuted for
harming her fetus. While Ashley no longer fears a life behind bars, her
case is a grim reminder of abortion's exclusion from the federal
As the Hyde Amendment stands,
millions of women are denied safe and legal abortions simply because of
their low-income status. Oftentimes these women cannot raise the
necessary funds for an abortion until later in the pregnancy, at which
time the cost is significantly higher. Also, after eight weeks of
pregnancy, the risks involved with the abortion procedure greatly
Some proponents of the Hyde Amendment argue that public funds should
not be used for a procedure that many find 'immoral.' But to base
government's funding upon taxpayers' personal objections or moral
conflicts is fundamentally skewed. The government must look at each
issue from a more objective stance."
In Harris v. McRae (448 US 297), decided June 30, 1980, the US Supreme Court concluded in a 5-4 opinion:
"[T]he Hyde Amendment violates no constitutionally protected substantive rights...
The financial constraints that restrict an indigent woman's ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions on access to abortions, but rather of her indigency. Although Congress has opted to subsidize medically necessary services generally, but not certain medically necessary abortions, the fact remains that the Hyde Amendment leaves an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all. We are thus not persuaded that the Hyde Amendment impinges on the constitutionally protected freedom of choice...
Hyde Amendment places no governmental obstacle in the path of a woman
who chooses to terminate her pregnancy, but rather, by means of unequal
subsidization of abortion and other medical services, encourages
alternative activity deemed in the public interest... Although the liberty protected by the Due Process Clause affords protection against unwarranted government interference with freedom of choice in the context of certain personal decisions, it does not confer an entitlement to such funds as may be necessary to realize all the advantages of that freedom. To hold otherwise would mark a drastic change in our understanding of the Constitution...
It is the Government's position that the Hyde Amendment bears a rational relationship to its legitimate interest in protecting the potential life of the fetus. We agree."
[Editor's Note:To read the ACLU.ProCon.org summary of this US Supreme Court case click here: Harris v. McRae.]
Maureen Kramlich, Secretariat for Pro-Life Activities of the United States Conference of Catholic Bishops, wrote in a Mar. 2004 article for the Fordham Urban Law Journal, entitled "The Current State of Abortion Law and Reproductive Rights: The Abortion Debate Thirty Years Later: From Choice to Coercion":
ACLU would deny conscience protection to any hospital that received
government funding to care for the poor through, for example, the
of whether the freedom of a woman to choose to terminate her pregnancy
for health reasons lies at the core or the periphery of the due process
liberty recognized in [Roe v.] Wade,
it simply does not follow that a woman's freedom of choice carries with
it a constitutional entitlement to the financial resources to avail
herself of the full range of protected choices.
a matter of constitutional law, then, conscience protection does not
conflict with the abortion right created by the Court...
federal government and the states are free to enact laws protecting the
conscience rights of health care providers who object to participation
in abortion... But if the state were to compel a health care provider
to kill or to engage in acts that the provider regards as killing, such
compulsion may be so objectionable that it takes on constitutional
Concerned Women for America (CWA), a Christian women's organization, wrote in their Nov. 24, 2004 press release titled "Omnibus Spending Gets 'A' Grades":
"[The Hyde Amendment] is important because 86 percent of US hospitals will not
Congress has given health care
providers a choice: If they don’t want to provide abortions, they don’t
have to, and their funding will not be affected. That is Democracy and
that is freedom of choice."