Protesters at the Supreme Court in March 2020. (Robin Bravender/States Newsroom)
Since 1976, the Hyde Amendment, named for former Republican U.S. Rep. Henry Hyde, of Illinois, has barred the use of federal funds for abortions in the federal Medicaid program except in exceptional circumstances.
Its language has been extended to other programs so that federal funding of abortion in any program is extremely limited. Critics of Hyde have long maintained that it is an unfair restriction on the right of indigent women to procure an abortion.
Majority Democrats in the U.S. House are now pledging to eliminate the Hyde Amendment, though the chances of the Senate, where the Democrats have a narrow majority, going along are uncertain.
It makes sense that someone like myself, who generally opposes abortion — The Capital-Star does not use the designations pro-life and pro-choice — would oppose eliminating Hyde.
But what has not been recognized is that there is a powerful case to be made that eliminating the Hyde Amendment would both betray the foundation of the abortion rights position and imperil the right to choose more generally.
That is, someone who supports abortion rights should not want the Hyde Amendment repealed.
Just what is the foundation of the right to abortion? That right has never rested on the claim that the fetus is something other than human. Human life plainly begins at conception—when else could it begin? The Supreme Court has never ruled otherwise.
But, contrary to the usual rhetoric of the anti-abortion movement, the recognition of the humanity of life in the womb does not end the debate over abortion rights.
The actual foundation of the right to abortion has always been, as it was in Roe v. Wade, the constitutional right of privacy — the recognition that the abortion decision is one for the pregnant woman to make in her own moral autonomy. She may decide to consult with others, but the ultimate decision must be hers alone.
This ground of abortion rights is broadly in keeping with the usual view of American law in matters of bodily integrity. We don’t force parents to donate kidneys, even if the refusal to do so will result in the death of their child. We — now — condemn the forced participation of soldiers in medical experiments.
The Hyde Amendment is an expression of this moral autonomy. It keeps the government out of the abortion decision.
Government funding always comes with strings. Government funding of abortion would be no exception. Federal money for all abortions, or just some? Not for abortions based on gender selection? Or Down Syndrome?
In contrast, the promise of Roe, admittedly not always kept, was that abortion would not be subject to politics, but would remain personal and private.
If financial support is needed to support the abortion decision, it follows that it should be provided by those who support that right. This not only protects the moral autonomy of taxpayers who object to abortion, which is certainly consistent with the privacy right, but keeps the decision where it belongs—in voluntary associations of civil society and out of the hands of the government.
That is the argument in principle for retaining the Hyde Amendment.
The other objection to repeal is pragmatic. The elimination of the Hyde Amendment would energize and radicalize the anti-abortion movement.
Currently, for all the controversy about the Supreme Court repealing or limiting Roe, there is a kind of compromise in America around the abortion issue. In certain Republican-dominated states, abortion is available in name only. State restrictions have so impaired the ability of abortion clinics to operate that there are few or no clinics left in much of the country.
On the other hand, in many reliably Democratic states, abortion is readily available.
Because of the constitutional right to travel, abortion in America is therefore a bus ride away. That bus ride may be fraught and expensive, but it is there.
This fractured condition broadly reflects the national division over abortion.
The moderate majority of anti-abortion voters have plainly made their peace with this compromise. They oppose the liberal abortion policies of the blue states but are content with the status quo.
The current situation would not change very much even if Roe were overturned and abortion left to the states.
Our uneasy national compromise over abortion is reminiscent of the controversy over slavery before the Dred Scott decision in 1857.
Before Dred Scott, moderate opinion in the North was that slavery was a Southern issue. But, when the Supreme Court ruled that Congress could not effectively bar slavery in the federal territories, the North faced the possibility that slaves could be brought by their masters into the free states. Every state was now potentially a slave state. Instantly, Northern opinion became more receptive to the abolition of slavery.
Repeal of the Hyde Amendment would have the same impact on moderate anti-abortion voters.
At the moment, their sentiment is that the status of abortion should be decided at the state level. Opposition to abortion goes as far as repealing Roe, but no further. There is little political support for outlawing abortion nationally, through legislation or constitutional amendment. Nor is there any indication that the conservative Supreme Court majority would recognize a right to life in the unborn.
There have recently been attempts to raise just those issues in the anti-abortion movement, but they reflect only a fringe element.
All that would change upon the repeal of the Hyde Amendment. Like an earlier generation of anti-slavery voters, anti-abortion voters could no longer remain on the sidelines, content not to be a part of a system of which they disapprove. Now they would be complicit. Every federal taxpayer would now be actively supporting abortions.
That would be intolerable to many and would ignite support for the elimination of abortion rights nationally.
That newly aroused sentiment would greatly exacerbate the partisan divisions that already rend America.
Repeal of the Hyde Amendment would aid a vulnerable population. But that financial aid need not come from the government. It is both more just in principle, and more conducive to national harmony, that government funds not be involved in the abortion decision. That conclusion should be common ground among both those who oppose, and those who support, the right to abortion.
Opinion contributor Bruce Ledewitz teaches constitutional law at Duquesne University Law School in Pittsburgh. His work appears biweekly on the Capital-Star’s Commentary Page. Listen to his podcast, “Bends Toward Justice” here.
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