WASHINGTON — A nearly 50-year-old federal law backed by Republicans allows the use of federal dollars for abortions in cases of rape, incest, or the life of the pregnant person.
That so-called Hyde Amendment, which is folded into spending bills, is less stringent than new or planned abortion bans in some GOP-led states, where governors and lawmakers want to remove exceptions for rape and incest. In Missouri, for example, abortions are now permitted only in cases of a medical emergency. There are no exceptions for rape or incest under state law.
But Republicans in Congress interviewed by The Capital-Star’s Washington Bureau said if they take control in the midterm elections, they expect to keep the Hyde Amendment intact in bills passed by Congress.
That means Medicaid patients and millions of other Americans who rely on federal health care programs — members of the military, federal employees, federal prisoners, veterans — may be able to continue to terminate pregnancies in cases of rape, incest, or the life of the patient, possibly setting up a legal dispute between state criminal laws and federal funding provisions.
Oklahoma Rep. Tom Cole, the top Republican on the funding panel that includes the Hyde Amendment in its bills, said he believes “there’s a broad national consensus about” the three exceptions.
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“I think we would be making a mistake to try and be overly aggressive in these areas,” Cole said. “Now, sometimes you put things in bills, knowing you’re gonna pull them out later to make a statement, or render a message. But again, I think on Hyde, status quo is what we should shoot for.”
Arkansas Sen. John Boozman said he thinks the Hyde amendment “should remain as it is.”
Florida Rep. Mario Díaz-Balart said Republican lawmakers should do the “same thing we’ve always done.”
“Remember, Hyde has been bipartisan until very recently. There’s always been an understanding that taxpayers’ funding should not go to fund abortions,” Díaz-Balart said.
Democratic objections
The first version of the Hyde amendment, in fiscal 1977, not long after the landmark Roe v. Wade decision created a constitutional right to abortion, didn’t include exceptions for rape or incest, only for the life of the pregnant person. It was named for Illinois Republican Rep. Henry Hyde, a strong opponent of abortion.
When drafting the fiscal 1979 legislation, U.S. lawmakers added in exemptions for rape or incest if the crime had been “promptly” reported to police or public health services.
The exceptions for rape and incest were removed between fiscal years 1981 and 1993, then added back into the fiscal 1994 bill, this time without the reporting requirement, according to the Congressional Research Service.
More recently, the amendment has been the subject of tensions since Democrats took over control of Congress and the White House.
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Rep. Rosa DeLauro, chairperson of the House Appropriations Committee, removed Hyde Amendment language from the original batch of spending bills Democrats released in the summer of 2021, calling the policy “discriminatory.”
“I know that this is an issue on which many of us disagree. But regardless of the original intent of Hyde, it has disproportionately impacted women of color and it has ultimately led to more unintended pregnancies, and later, riskier and more costly abortions,” DeLauro said during a committee markup.
“Quite frankly, allowing the Hyde Amendment to remain on the books is a disservice, not only to our constituents but also to the values that we espouse as a nation,” she added.
Senate Democrats removed those elements from their original batch of government funding bills as well, but they were all added back into the conferenced versions that President Joe Biden signed into law.
The move represented a victory for Republican lawmakers that likely wouldn’t have been possible without the U.S. Senate’s 60-vote legislative filibuster, the same procedural hurdle that would likely block GOP lawmakers from making any changes to the Hyde Amendment if they wanted to.
Keep amendment intact
Republicans interviewed by The Capital-Star’s Washington Bureau nearly all said they want to keep the Hyde Amendment and its three exceptions for rape, incest, or the life of the pregnant person — the language in spending bills is “mother” or “woman”— as is.
“I don’t think we need to change it. But I think we need to make sure that it’s front and center,” said Kansas Republican Sen. Roger Marshall, who worked as an OB-GYN for more than two decades before being elected to Congress.
Marshall said he doesn’t think lawmakers need to change the language to say “life or health” of the patient because doctors have “plenty of leeway just the way it is.”
“If we expand it to health, I think it’ll be way too controversial, and they’ll use it to bring in other diagnoses,” Marshall said. “Look, every woman is stressed when they’re pregnant with anxiety, and they have nausea, but their life is not being threatened. So I would leave it just like it is.”
Cole didn’t want to comment on whether the provision should say “life and health” of the pregnant person because he didn’t “want to be in a discussion at that level of detail right now” and because he hadn’t “thought about it.”
Cole did say that appropriators generally take a different approach to policy changes than their colleagues on other committees, in part, because the panel’s legislation must pass to avoid government shutdowns.
“Appropriations have to be bipartisan, so you can’t just come tell me what’s the best policy, you have to tell me what’s the best policy that can attract the Democrats’ support that I need to pass the bill,” Cole said.
“The president is still the president; he can veto anything. The Senate is still going to have the filibuster. And we’ll have a number of our members that won’t vote for any appropriations bill,” Cole added. “They’ll tell you what they want in them, they’ll yell and scream about what you’re doing, but they’re never going to be there. So in that situation, I have to have Democratic votes.”
Break with states
Republicans’ expectation party leaders won’t try to remove the Hyde Amendment’s exceptions for rape and incest would represent a break with some state lawmakers back home, who are advancing bills and enacting laws that would bar abortion access in those cases.
Some laws passed by conservative Republican state lawmakers, or in the works, muddy the waters around whether doctors can end ectopic pregnancies or treat miscarriages, which often require the same medications or procedures as elective abortions.
Whether women must carry pregnancies to term after a fatal fetal anomaly is diagnosed is also unclear in some Republican-held states following new abortion restrictions.
And doctors in those states have questioned exactly how unwell a pregnant patient must become before state laws will allow pregnancy termination, bluntly asking how much blood a woman must hemorrhage or how far an infection must spread before they could perform an abortion without risking prison time.
Republicans in Congress don’t seem inclined to go down that path with respect to when federal funds should be allowed for abortions.
Rep. Ken Calvert of California predicted that “Hyde’s not going anywhere” and the three exceptions will “probably” stay exactly as they are now, though he does expect the GOP will discuss it broadly if they regain control of the U.S. House.
“I’m sure there will be conversations, but I think it will stay in it,” he said, giving a firm “no” when asked if there’s any possibility the exceptions for rape and incest are removed.
Maryland Rep. Andy Harris became somewhat agitated when asked whether there’s a possibility the GOP would remove those two exemptions, saying he had no comment before commenting, “That’s ridiculous.”
“The premise is a completely unfounded premise,” Harris added.
Iowa Sen. Joni Ernst said if Republicans are back in control of the Senate next Congress, the GOP should “keep the Hyde Amendment.”
When asked if it should remain exactly as it is now, she added, “no taxpayer dollars should be going towards abortion.”
Missouri Sen. Josh Hawley said he was “for the Hyde amendment” and said he backs the three exemptions staying as they are now.
“I support those exemptions in abortion laws generally, so that’s my own personal position. So yes, I’m comfortable with them.,” Hawley said.
Louisiana Rep. Julia Letlow said in a statement, she is “100% committed to fighting on the Appropriations Committee to ensure that longstanding pro-life protections such as the Hyde Amendment remain in place.”
Iowa Rep. Ashley Hinson said in a statement, she’s “proud to have helped lead the charge on the House Appropriations Committee to protect the longstanding, bipartisan Hyde Amendment.”
“It’s wrong to force taxpayers to fund abortions against their will, and next Congress, I’ll continue working to ensure that taxpayer dollars don’t go toward abortions,” Hinson said.
Less certainty
There are, however, some Republicans on Capitol Hill who aren’t entirely sure about their stance on the future of the Hyde Amendment.
Tennessee Sen. Bill Hagerty said he expects the Hyde Amendment will be retained, though he was less certain about his thoughts on removing exemptions for rape or incest.
“You know, I have not had an opportunity to talk with my colleagues about that at this point, so I don’t have any further light to shed on that,” he said. “We haven’t spoken as a conference about modifying the Hyde Amendment at this point.”
Kentucky Rep. Hal Rogers, former chair of the House spending panel and the dean of the chamber, said he didn’t know if a GOP-controlled Congress would move to remove the rape and incest exemptions.
“Well, we’ll see,” Rogers said.
Indiana Sen. Todd Young didn’t have an opinion on keeping the amendment as is or removing the exemptions for rape and incest, saying he hasn’t “given a lot of thought to it.”
“I’m thinking about the cost of living. That’s what most of my constituents are concerned about,” Young said.
Kansas Sen. Jerry Moran had similar sentiments, saying, “I have not even thought about it.”
