Photo credit: Lorie Shaull, 2019. Lorie’s work is available at www.lorieshaull.com
President Biden’s proposed budget does not include provisions barring federal funding for abortion procedures. The lack of this policy is a significant win for protecting abortion rights, because banning federal funding for abortion care has been commonplace since shortly after Roe v. Wade. Best known as the Hyde Amendment, the ban on the use of federal funding for elective abortion procedures has been in place since the late 1970’s and has drastically limited a pregnant person’s ability to access abortion care.
The Hyde Amendment is designed to bar federal funding from being used for abortions, unless the pregnancy was the result of rape or incest or the pregnancy is endangering the life of the pregnant person. Any elective abortion, meaning any abortion that does not fit in the three narrow exceptions, is prohibited from being paid for with federal dollars. Although the right to access an abortion has been legally protected since Roe, barriers to access have made it almost impossible for some to actually access care. The Hyde Amendment has been a major barrier since its enactment.
Anti-abortion provisions have been used to restrict abortion care funding under many, if not all, federal health care coverage programs. Since its first implementation in 1977, the Hyde Amendment has been attached to the Department of Health and Human Services (HHS) appropriations bills, barring the use of federal funding for elective abortion care under Medicaid, Medicare, the Indian Health Service, and the Children’s Health Insurance Program (CHIP). Language mirroring the Hyde Amendment has also been included in a multitude of other federal health care coverage programs, including the TRICARE program (which provides coverage to military personnel, veterans, and dependents), health care provided in federal prisons, the Peace Corps, and the Federal Employees Health Benefits Program.
President Obama issued an executive order to ensure the enforcement and implementation of abortion restrictions under the Affordable Care Act (ACA), including enforcing Hyde Amendment restrictions on healthcare plans receiving federal funding and protecting conscience laws, which allow healthcare providers to refuse to provide coverage, pay for, or even provide referrals for abortion care. The ACA also explicitly allows states to prohibit plans that provide abortion coverage from their insurance marketplaces. Currently, twenty-six states bar or restrict abortion coverage in health insurance plans offered through their state marketplace.
The reversal of Hyde would help overcome one of the biggest barriers to abortion care: cost. Almost 20% of women of reproductive age and 50% of women below the federal poverty line are insured by Medicaid. Due to the Hyde Amendment, people who get pregnant while on Medicaid have no real source of financial aid for paying for an abortion. Although some Planned Parenthood locations offer a sliding pay scale to help keep abortion care affordable, and abortion funds exist across the country to help cover the costs, it is still extremely difficult to pay for an abortion without health insurance coverage, making care inaccessible to financially insecure people.
A significant number of people seeking abortion care must pay out of pocket. The cost of an abortion varies based on type of procedure, geographic location, and gestational age at the time of the procedure. In general, abortion care can cost a person between $0 to $1,000, not including any secondary costs a person may face including travel expenses, childcare costs, and loss of wages.
If a person does not have health insurance that provides abortion care coverage, they are expected to cover the cost of the procedure themselves. However, in 2014, 75% of people seeking abortion care were low-income and could not afford to pay for the procedure. Even if a person seeking care doesn’t live below the poverty line, many cannot afford the unexpected cost of an abortion. In actuality, 40% of adults in the United States cannot afford to pay for a $400 emergency expense. People have reported skipping medical treatment simply because they cannot afford to pay out of pocket for the care.
The removal of Hyde would be a huge win for making abortion care more accessible because Medicaid and other federally funded coverage programs would provide the needed coverage for abortion procedures. Although the Hyde Amendment is not the only legal barrier to abortion access, as TRAP laws, crisis pregnancy centers, fetal personhood laws, and heartbeat bills are repeatedly advocated for by anti-abortion law makers, seeing the end of Hyde will help mitigate financial barriers to abortion care.
Although the Biden Administration refuses to actually say the word “abortion,” there have been some significant wins for abortion rights under the administration, including the end of Hyde. During the first eight days of his presidency, Biden repealed the global gag rule, which bars all international non-profit organizations that receive U.S. funding from providing abortion care, counseling, or referrals. The Biden Administration has proposed new HHS rules that will allow for abortion providers to receive Title X funding again, undoing Trump’s domestic gag rule.
Much more needs to be done to ensure reproductive justice for all, but these wins will go a long way in protecting abortion care access for people with low incomes, people of color, young people and people in vulnerable populations, who are disproportionately harmed by racist, sexist, and classist reproductive care policies. Getting rid of the Hyde Amendment will not remove all barriers to abortion care, but it is a step in the right direction and will go a long way in protecting a person’s ability to exercise their right to abortion.
The President’s proposed budget is a significant guiding document for Congress as spending bills are being drafted. With Democratic control of the House and Senate, there is a strong chance Hyde will not make an appearance in the upcoming 2022 budget. In December, the Subcommittee on the Department of Labor, Education, HHS, and Related Agencies, of the House Appropriations Committee, held the hearing “The Impact on Women Seeking An Abortion But Are Denied Because of an Inability to Pay” to discuss the harmful impact of the Hyde Amendment.
On July 11, the House Appropriations Committee released the draft fiscal year 2022 Labor, HHS, Education, and Related Agencies funding bill, which will repeal the Hyde Amendment. Although we are still a long way to go before a budget is passed, the exclusion of the Hyde Amendment in both the President’s Proposed Budget and the House’s funding bill is a great sign that Hyde will be effectively repealed. The exclusion of Hyde from the 2022 budget will be a significant win for abortion access in the short term, but there is a risk that Hyde will be re-introduced in future budgets if the anti-abortion politicians gain back control. Legislative measures, like the EACH Act, should be enacted to ensure on-going protection against abortion coverage bans for years to come.
UPDATE: As of July 29, 2021, the House of Representatives has passed the HHS spending bill without including the Hyde Amendment. This is the first time since 1976 that the Hyde Amendment has not been included in the House’s package of spending bills. It is now up to the Senate to pass the spending bill without restrictions on abortion funding. You can get involved in the fight against abortion restrictions by contacting your representatives and urging them to support legislation that will ensure every person has access to affordable abortion care
Mackenzie Darling is a J.D. Candidate at Northeastern University School of Law, with concentrations in Health Law & Policy and Poverty Law & Economic Justice. Prior to law school, she graduated with a Bachelor of Science in Public Health and a Bachelor of Arts in Philosophy from the University at Albany. She is a graduate legal researcher at the Health in Justice Action Lab and a research assistant at the Center for Health Policy and Law. She has completed co-ops at NARAL Pro-Choice Massachusetts and National Advocates for Pregnant Women, and she will be working with the Women’s Law Project in the fall of 2021. Mackenzie is an intersectional feminist and a very vocal reproductive justice advocate.