Today in 1976: The Hyde Amendment is passed, the first of many

September 30, 2011

Today in Legal HistoryOn September 30, 1976, the Hyde Amendment was passed in the U.S. House of Representatives.

Named for its primary sponsor, Republican Congressman Henry Hyde of Illinois, the Hyde Amendment was introduced as a response to the Supreme Court ruling Roe v. Wade which legalized abortions nationwide, decided three years prior.

The Amendment barred federal funds from the Department of Health and Human Services (HHS) from being “used to perform abortions except where the life of the mother would be endangered if the fetus were carried to term.”

It wasn’t a permanent law, but was instead attached to the annual appropriations bill for the Departments of Labor, and Health, Education, and Welfare, and therefore its effects only lasted through the 1976-1977 fiscal year.

Every subsequent year, though, some form of the provision has been attached to HHS appropriations bills, with each one still being referred to as a “Hyde Amendment.”

The Amendment predictably saw a challenge to its constitutionality, which the Supreme Court looked at in 1980’s Harris v. McRae.

In a 5-4 ruling, the Court upheld the constitutionality of the Hyde Amendment, reasoning that a woman’s constitutional freedom of choice wasn’t attached to “a constitutional entitlement to the financial resources to avail herself of the full range of protected choices.”

Furthermore, in response to the plaintiffs’ arguments that the Amendment violated the Equal Protection Clause of the Fifth Amendment, the Court held that poverty did not qualify as a “suspect classification” entitled to protection.

The dissent, however, did not buy into the majority’s reasoning.

It, instead, saw the Amendment as a restriction of a woman’s freedom of choice recognized in Roe v. Wade, with the government using a carrot instead of a stick.

For those unfamiliar with the idiom, “carrot and stick” refers to a system of rewards (carrot) and punishments (stick) to encourage certain behaviors.

The dissent illustrates to this point with the example of a poor woman in the early stages of pregnancy who is considering having an abortion.

The dissent agrees with the majority that the Hyde Amendment “places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy.”

It diverges from the majority, though, in saying that the Amendment has “effectively removed this choice from the indigent woman’s hands.”

Specifically, that by funding childbirth and not an abortion, the government “literally makes an offer that the indigent woman cannot afford to refuse.”

Regardless of the accuracy of this assessment, future Court rulings have declined to embrace it.

As a consequence, pro-life advocates have followed Hyde’s example and adopted a broad strategy of cutting off funding for abortion procedures themselves and for organizations that provide such services, a strategy largely, but not entirely, permitted by the courts.

Although a Hyde Amendment has been present every year since the first in 1976, its inclusion is typically the subject of congressional debate and compromise.

In fact, it played a central part in the passage of 2010’s Patient Protection and Affordable Care Act (PPACA), in that Obama issued an executive order effectively integrating a Hyde Amendment into the law in order to secure a pro-life Democratic Representative’s vote.

Despite its widespread use as a political bargaining chip, the Hyde Amendment’s true lasting legacy is the judicial approval of the use of a carrot, rather than a stick, to prevent abortions.