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Analysis | The Legal Obstacle to Federal Abortion Efforts After Supreme Court's Roe v. Wade Ruling

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A new public policy issue -- whether the federal government can find ways to help Americans access abortions now that Roe v. Wade has been overturned -- is running up against a long-time restriction on federal dollars. The Hyde Amendment, first enacted 45 years ago, and related provisions restrict the use of federal funds for abortions. It's emerged as an obstacle to efforts to maintain abortion services for women in states that outlaw the procedure.

1. What is the Hyde Amendment?

It's the most prominent among a set of abortion-related restrictions on annual federal government spending. It was sponsored by the late Representative Henry Hyde, an Illinois Republican, and attached as an amendment to an annual health spending bill in 1976. The purpose was to prevent Medicaid -- the federal-state health insurance program for low-income Americans -- from spending federal dollars on abortion services. The amendment or some version of it has been included in annual appropriations bills ever since. (President Joe Biden, a supporter of abortion rights, voted for bills extending the Hyde Amendment and related provisions dozens of times during his 36-year career in the Senate.) Hyde spawned additional restrictions in other federal appropriations and authorization bills.

2. What are the additional restrictions?

Hyde-type amendments exist in laws for other government health programs, including the Children's Health Insurance program; TRICARE, which covers members of the military; and the Indian Health Service. They restrict care for veterans receiving care under Veterans Affairs programs and allow states to limit Obamacare coverage for abortion.

3. Does it apply to all abortion services?

No. In 1993, the Hyde language was amended to allow exceptions for abortions in the case of rape, incest or if the life of the mother is in danger.

4. Why is it back in the news?

For the first time in decades, Americans in many states have lost or will lose the right to have an abortion as a result of the Supreme Court's ruling in Dobbs v. Jackson. As part of their response, Democratic lawmakers floated the idea of opening abortion clinics on federal lands as a way to sidestep those restrictions. There also have been suggestions that the government provide transportation for patients who would have to travel out of state to get an abortion. Those and similar ideas, however, could run afoul of the Hyde Amendment.

5. Is there a way around Hyde?

Some Democratic lawmakers have suggested that the federal government could lease land to abortion providers and collect revenue from them as a way around the restriction on spending. But such a maneuver would surely invite legal challenge, and even relying on federal salaried employees to set up such leases could invite a Hyde-related court challenge. 

6. Could Congress overrule Hyde?

Progressive Democrats have long targeted the Hyde Amendment, arguing that it denies equal rights to poor women who rely on Medicaid. But as with many Democratic priorities, the lack of a 60-vote supermajority in the Senate -- which is needed to pass most legislation -- stands in the way.

More stories like this are available on bloomberg.com

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