Hyde Amendment has a bipartisan past but a cloudy future

By Mark Pattison

(CNS) — Most people who keep an eye on life issues know the shorthand about
the Hyde Amendment — that it bars the federal government from funding
abortions through Medicaid.

But the
amendment does more than that — although not everything pro-lifers may wish it
could do — and with the amendment’s 40th anniversary Sept. 30 just passed, it
may do well to remember how it all came about.

It was
in 1973 that the Roe v. Wade and Doe v. Bolton cases were decided by the Supreme
Court, which ruled that women could obtain abortions virtually on demand. From that point, politicians and citizens opposed to abortion in both
parties were looking for ways to overturn the decision, or at least place
restrictions on abortion.

It was
a time that “we didn’t know which part would claim to be the party of life,”
said Michael New, a visiting professor of education at Ave Maria University, during
a Sept. 29 anniversary observance in Washington sponsored by the March for Life organization.

bipartisan nature of the Hyde Amendment is reflected in its origin.

to Bart Stupak, who represented Michigan’s Upper Peninsula for 18 years as a
Democrat in the House of Representatives, the amendment was developed by James
Oberstar, a freshman Democrat from Minnesota. But because Oberstar was serving
on what is now known as the House Transportation and Infrastructure Committee,
he didn’t have a path to shepherd the bill.

another House freshman, Henry Hyde, a Republican representing Chicago’s
northwest suburbs, was a member of the House Judiciary Committee, and could see
the amendment through to passage. Hyde and Oberstar, Stupak told Catholic News
Service in an Oct. 5 telephone interview, were then co-chairs of the House
Pro-Life Caucus.

of the huge Democratic gains in the House resulting from public disgust over Republican
Richard Nixon’s resignation as president two years previously, Democratic votes
were needed to ensure passage. Stupak said Oberstar got Democrats who sat on
the Judiciary Committee to vote for the amendment.

rider passed Sept. 30, 1976, on a 207-167 vote. It was seen as the first
significant victory for the pro-life movement. Not only did it bar the use of
federal Medicaid funds to pay for abortions, it also banned the use of federal
funds to pay for the abortions of women serving in the military outside the
United States. In 1980, the U.S. Supreme Court upheld the Hyde Amendment as constitutional.

Today, while abortion opponents still reject the notion that
abortion on demand is settled law, the Hyde Amendment itself is not settled
law. As a rider to congressional budget appropriation measures, it is subject
to renewal with each new federal budget.

been contentious all the way through those 24 years I’ve been around Washington,”
said Stupak, who joined a Washington law firm after leaving Congress in 2011. He
is still active with the Washington-based Democrats for Life, and plans to
write a book about the history of abortion legislation in Congress.

1993, pro-lifers came up a few votes short to renew the Hyde Amendment, Stupak
told CNS. Planned Parenthood of Michigan sued to release federal funds for abortion. The
court ruled that, absent legislative guidance one way or the other, a federal
agency’s policy is equivalent to law, so this permitted the U.S. Department of
Health and Human Services to release Medicaid funds to pay for abortions.

the “Contract With America” Republicans took over both houses of Congress in
1995, the Hyde Amendment was restored. “President (Bill) Clinton, I must say,
was always very good about it,” Stupak recalled. “He recognized there were the
moderate-conservative Democrats who were very important and very sincere about
our position, and he respected that. If we wanted to have Democratic majorities,
we needed to have pro-life members.”

1996 Democratic Party convention platform — for an election that followed the 1994
congressional licking, not to mention the 1992 imbroglio over party officials
refusing then-Pennsylvania Gov. Bob Casey a speaking slot at the convention because of his pro-life views — tried to erect a big tent. “We were successful at
putting a provision in the platform: We realize there is a difference of
opinion on the sanctity of life, pro-choice issues, the pro-life members of our
caucus are valuable members of our caucus,” Stupak said.

“For 30
years if you will, there was always a truce between pro-life and pro-choice,”
he added. But that fell apart in 2007, when “Democrats took back the majority (in
both chambers) and (Nancy) Pelosi became speaker. … It was luck. We won our
riders, even though the head of the Rules Committee was Louise Slaughter (D-New
York), who was head of the Pro-Choice Caucus; to get your rules, you had to get
through the Rules Committee.”

At one
point, Stupak and other pro-life Democrats had to threaten to attach the Hyde
Amendment to every piece of legislation, and scuttle others’ amendments, to
force a vote on Hyde.

the 2009-10 debate over the Affordable Care Act, Stupak inserted the Stupak
Amendment into the bill, which would have codified Hyde into law. He won in the
House, but could get only 45 votes in the Senate. The Stupak Amendment was a
precursor to the No Taxpayer Funding for Abortion Act, which has been
introduced in 2011, 2013 and 2015 by Rep. Chris Smith, R-New Jersey, current
co-chair of the House Pro-Life Caucus. The 2015 version passed in the House but
has languished in the Senate Finance Committee since it was referred there in
January 2015.

Tobias, president of the National Right to Life Committee, said she believes
the Hyde Amendment should be made permanent. “Having to go through this year by
year or every couple of years, however it comes about, is ridiculous,” she
declared. “Two-thirds of the American public do not want their tax dollars to
be used for abortion. We should not have to go through that to keep that as

But the
2016 Democratic Party platform signaled the opposite with a plank that supports the
repeal of the Hyde Amendment. “Rather than expand the culture of death and
shred the Hyde amendment — as (Democratic presidential nominee) Hillary
Clinton promises — women and men of conscience have a duty to protect the
weakest and most vulnerable from the violence of abortion,” Smith said in remarks on the
House floor Sept. 28 before the House went into a pre-election recess.

All this
still begs the question: If the levers of government can be pulled to keep poor
women from getting abortions, what can be done to reduce the abortion rate
among women with the financial means to pay for one?

has a suggestion: “Where the pro-life movement has been very effective in
keeping abortion as the issue that no one wants to talk about, it is still not
socially accepted. Women might be talking to a co-worker, ‘I won’t be in
tomorrow, I have a doctor’s appointment, a dentist’s appointment.’ They don’t
say, ‘I’m not coming in to work tomorrow because I’m having an abortion,'” she

keeping that stigma attached to abortion, that’s why more and more women are not
choosing abortion, and choosing life” instead.

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Follow Pattison on Twitter: @MeMarkPattison.


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