WASHINGTON — President Joe Biden recently released his $6-trillion budget proposal — and notably absent, for the first time in the Roe v. Wade era, were Hyde Amendment protections against taxpayer funding of abortion. 

The budget comes as battle lines have been drawn in Congress on the issue and Biden’s proposal marks where the administration stands, backing the abortion lobby’s longtime push for taxpayer-funded abortion without restrictions. 

However, there are indications that the amendment still commands majority support in the U.S. Senate, and if so, congressional supporters of tax-funded abortion are eyeing other ways of funneling more federal funds in support of abortion.

The Hyde Amendment, enacted in 1976 three years after Roe legalized abortion nationally, is a bipartisan appropriations rider prohibiting taxpayer funding of abortion in health-care funds with exceptions for rape, incest and the life of the mother. During his time in the Senate, Biden supported the amendment and once wrote that “those of us who are opposed to abortions should not be compelled to pay for them.” 

As vice president, he attempted to get Republican support for “Obamacare” in 2010 by assuring lawmakers that the legislation maintained “the principle” of the Hyde Amendment. However, he reversed his stance in June 2019 while campaigning for president and said at the time, “If I believe health care is a right, as I do, I can no longer support an amendment that makes that right dependent on someone’s ZIP code.”

 

 

Democrats’ Push Against Hyde

Making good on his campaign promise, Biden sent a budget to Congress that excludes the amendment in line with the intensified push from many Democratic lawmakers to do away with Hyde. 

House Speaker Nancy Pelosi, D-Calif., told reporters in December that doing away with the Hyde Amendment was “long overdue,” calling it “an issue as to the impact that it has in terms of unfairness to women in our country.” U.S. Rep. Rosa DeLauro, D-Conn., the chair of the House Appropriations Committee, said in a December hearing that “the Hyde Amendment is a discriminatory policy, and for more than 40 years it has been routinely extended every year as a legislative rider, but the time has come in the current moment to reckon with the norm.”

The party divide over the Hyde Amendment was not always so severe. “Both parties have become far more rigid in their view towards abortion rights in general. Virtually no pro-life Democrats or pro-choice Republicans serve in Congress now,” Matthew Green, a professor of politics and associate fellow at the Institute for Policy Research and Catholic Studies at The Catholic University of America, told the Register. 

“When the Hyde Amendment was nearly eliminated in 1993, it was restored by a cross-party vote in the House of Representatives, with many members of both parties voting for it,” said Green. “It’s difficult to imagine a vote like that today.” 

Still, he noted that “taxpayer funding for abortion remains controversial, and there may be a number of Democrats, particularly ones from swing districts, who will be hesitant to vote against the Hyde Amendment if they have the opportunity.”

While Democrats now appear to have the votes in the House to do away with the amendment, their razor-thin majority in the Senate means that Biden’s budget is not likely to pass without the inclusion of Hyde Amendment language. 

In addition to 48 Senate Republicans who signed a letter in February vowing to “vote against the advancement of any legislation that would eliminate or weaken the Hyde Amendment,” there are a few Democrats in the Senate who still support the Hyde Amendment.

Sens. Joe Manchin, D-W.Va., Bob Casey, D-Pa., and Tim Kaine, D-Va., who are all Catholics, maintain their support for the Hyde Amendment amid the ongoing efforts in their party to do away with it. Casey’s office told the Register last week that his “position remains the same,” and he “supports the Hyde Amendment.” Manchin’s office highlighted to the Register his statement to National Review in March that “we should have the Hyde Amendment. The Hyde Amendment’s something I’ve always supported.” Kaine’s office told the Register that his support for the amendment “still holds true.” 

Manchin, Casey and Kaine all supported the $1.9-trillion COVID relief bill in March, which did not include Hyde Amendment language. However, prior to the final bill’s passage, all three voted for a version of the bill that included the Hyde language. But the effort fell short of the 60 votes it needed to pass.

Green said the roadblock in the Senate “could galvanize liberal activists to lobby hard on behalf of the budget and possibly win the votes of one or two moderate Republicans. But it’s unclear whether that would be enough to get a majority in the Senate.” 

Even staunch abortion advocates in the Senate like Sen. Mazie Hirono, D-Hawaii, have acknowledged that getting rid of Hyde is “one of those things where it’s hard to change people’s minds,” telling Politico, “I don’t think we’re quite there yet.”

 

Abortion Activists Want More

Melanie Israel, a research associate at the DeVos Center for Religion and Civil Society at the Heritage Foundation, told the Register that Biden’s omission of the Hyde Amendment from his budget “speaks to just how powerful of a hold the pro-abortion lobby has on the left.” 

She pointed out how “key members of Congress who are going to play a big role in the appropriations process, people like Rep. DeLauro and Sen. Patty Murray, D-Wash., really want to go for it all and strip all pro-life protections out of the appropriations process.”

Israel noted that Democrats were also taking aim at pro-life protections like the Helms Amendment, a provision that bars the use of taxpayer funds for abortions overseas that Biden’s budget retained, to the disappointment of some abortion advocates. 

“It’s interesting to see this dynamic of members of Congress who are in these key positions calling to go all the way and President Biden in his budget has partially given what they’re asking for, but not all the way,” Israel said.

Part of some Democrats’ aggressive stance against Hyde, Green said, could be “the larger majority of conservatives on the U.S. Supreme Court, and the very real possibility that the court overturns Roe v. Wade, gives Democrats an incentive to take on stronger pro-choice positions. By getting ahead on the issue, they would be well-positioned politically should there be a public backlash against the repeal of Roe v. Wade.”

According to Politico, Murray, who chairs the Senate appropriations panel overseeing health spending, is “currently talking to colleagues to build support not only for scrapping the abortion-funding ban in the upcoming budget but also for passing a bill that would remove the issue altogether from annual budget wrangling.” Murray has been a longtime advocate of the EACH Act, which would end the Hyde Amendment, guarantee abortion coverage in federal programs, and bar the federal government from prohibiting “insurance coverage of abortion services by state or local government or by private health plans.” She is also a past supporter of the Women’s Health Protection Act, which was reintroduced by Sen. Richard Blumenthal, D-Conn., this week and would enshrine abortion in federal law, ending virtually all state limits on abortions, including waiting periods and 20-week bans. 

“Especially with a conservative Supreme Court taking up a direct challenge to Roe v. Wade, we’ve got to do everything we can to stand up for reproductive health care,” Murray told Politico.

Israel said the debate over Hyde is happening “under the backdrop of some Democratic members of Congress not necessarily being on board with that kind of radical move to strip all of these pro-life protections, and almost 200 Republican members of Congress have sent a letter to congressional leadership saying we will not support any kind of funding measure that strips existing pro-life protections from the bill. It’s going to be a question of who blinks first, because the two sides are just completely on the opposite ends of the spectrum.”

 

Other Factors

But with Manchin’s recent statement that he would “not vote to weaken or eliminate the filibuster,” lawmakers advancing the abortion agenda have grasped for every option to secure votes in the Senate, where the partisan divide is 50-50, with Vice President Kamala Harris casting the tie-breaking vote.

The reconciliation process, for example, was used to pass the COVID relief package without Hyde language in March, as it allows bills to pass the Senate with a simple 51-vote majority rather than a filibuster-proof 60-vote majority. However, the reconciliation process has significant limits and is typically permitted only once per fiscal year for laws related to taxes or spending. The Senate parliamentarian ruled in April that the Democrats could use reconciliation a second time this year to advance the president’s budget. 

“We all know as a caucus we will not be able to do all the things the country needs in a bipartisan way,” Senate Majority Leader Chuck Schumer, D-N.Y., said Tuesday of Biden’s infrastructure proposal. “It may well be that part of the bill that’ll pass will be bipartisan and part of it will be through reconciliation.”

Every Democratic senator, including Hyde supporters like Manchin and Casey, would need to vote along party lines with the 51-vote majority to pass a proposal through reconciliation. Manchin has indicated to reporters that he would prefer “looking for that moderate, reasonable, middle” to pass the infrastructure proposal in a bipartisan fashion rather than through reconciliation. 

Israel said that abortion activists have attempted to include abortion in bills like the infrastructure proposal that can be passed through reconciliation. She pointed out the insistence by some activists  that “abortion is infrastructure.” 

One article on the pro-abortion site Rewire News outlined “modest proposals for how reproductive rights should be included in infrastructure packages,” including the provision of “financial incentives to open new abortion clinics, with additional incentives to states hostile to abortion access and to states bordering them” and “financial incentives for mobile health units that provide the full range of reproductive health care in specially fitted RVs.”

Despite this die-hard push, polls consistently show that a majority of Americans do not want taxpayer-funded abortion. January Marist polling found that 58% of Americans oppose taxpayer-funded abortion, including more than a third of Americans who identify as “pro-choice.” When it comes to taxpayer-funded abortion overseas, 77% of Americans are opposed. 

“As the appropriations fight heats up on Capitol Hill,” Israel wondered, “how much are members going to be willing to stick their necks out to strip these pro-life protections when they know that the American people don’t support that?”

 

Biden’s Priorities

One unknown factor is how committed Biden is to overturning the Hyde Amendment. 

Israel said the president’s budget is “a proposal outlining his spending priorities,” and while “the ball is in Congress’ court to actually craft those appropriations bills,” they’re “going to be looking at Biden’s budget priorities as they craft that.” 

She said Biden’s budget is “showing us where he stands,” and “seeing that President Biden is walking away from this position that he has held for decades, knowing how aggressive the pro-abortion lobby is getting, knowing how adamant certain Democratic senators and representatives have been about repealing the pro-life restrictions, they’re under threat in a way that they’ve never experienced before.” 

CUA’s Green said, at this point, it’s “hard to say” how much of a priority repealing Hyde is for the Biden administration and “a lot will depend on how much attention this gets, positive or negative.”

“It’s really going to come down to members of Congress holding the line with what the American people actually believe,” Israel said of the current debate on Hyde, adding it should be “an opportunity to find a consensus issue and come together on something where the American people actually agree, but I just don’t think the abortion lobby is going to let that happen.”