Abortion rights did not fare well in the midterm elections. Alabama voters approved a measure that will grant full legal personhood to fertilized eggs, a move that will massively restrict the rights of pregnant and fertile women and ban all abortions in the state after the fall of Roe v Wade. West Virginians removed state Medicaid funding for abortion procedures via a constitutional amendment.
Meanwhile, Republicans expanded their control of the Senate, allowing them to continue to stuff the federal courts with their rabidly anti-choice judicial nominees. Encouraged by the appointment of the multiply accused sexual assault perpetrator Brett Kavanaugh to the Supreme Court in October, Republican-controlled state legislatures across the country have resumed their favorite habit of forwarding baroquely sexist abortion restriction bills at the state level.
Designed to provoke federal lawsuits that could eventually lead to Roe being overturned or gutted by the Supreme Court, these efforts have included two notable bills in Ohio, one of which would ban abortions after six weeks of gestation – in practical terms, a total abortion ban – and another which would criminalize abortion, making doctors and women vulnerable to prosecution and even the death penalty.
In this hostile political climate, women’s rights advocates are on the back foot. But in the House, where Democrats regained control with a more diverse, more female, class of incoming representatives, one major abortion rights victory is closer than it ever has been before: the end of the odious Hyde Amendment.
Enacted in 1976, the Hyde Amendment is not a law so much as a tradition: It is a provision that is attached to the annual appropriations bill that dictates funding for the Department of Health and Human Services. The Hyde Amendment prohibits any federal money from paying for abortions. Until 1994, the provision was absolute, but since then three narrow, hard-to-attain exceptions have been carved out in which an eligible woman can attain federal money to cover her abortion if she can prove that her pregnancy resulted from rape, resulted from incest, or would endanger her life. The provision has become bloated in its purview over the years, and it now has implications for a wide array of groups who get health insurance through the federal government, including federal employees, soldiers and their families, and some Native Americans.
But the biggest group by far that the Hyde Amendment targets is Medicaid recipients—that is, low-income women, disproportionately young people, immigrants, and women of color, who are already struggling to make ends meet, and who have the fewest resources to pay for an abortion by other means.
Henry Hyde, the Republican congressman who authored the Amendment in the seventies, famously said of his provision, “I would certainly like to prevent, if I could legally, anybody having an abortion, a rich woman, a middle class woman, or a poor woman. Unfortunately, the only vehicle available is the Medicaid bill.”
He targeted the poor because they were the most vulnerable, and the most easily made to suffer. Decades later, the Amendment has effectively made abortion inaccessible for low-income women – suggesting that the dignity, bodily autonomy, and self-determination that abortion access provides for American women are not rights, but privileges which must be purchased and can, all too easily, be taken away.
Finally, things may be changing. A growing awareness of the Hyde Amendment has galvanized pro-choice Americans, and when the new congress is sworn in in January, 183 members will support opposing Hyde and passing a clean appropriations bill.
It’s an unheard-of number, and a testament to tireless organizing by advocates for choice. Women’s rights groups such as Planned Parenthood and NARAL threw their weight behind the effort during the midterm election cycle, choosing candidates committed to ending Hyde for their coveted endorsements. But leading the charge is Representative Barbara Lee of California, who says she will not only oppose Hyde, but has committed to bringing forth a bill called the EACH Woman Act, which would provide affirmative protection for abortion access for those covered by Medicaid and other federal health insurance.
Not all proponents of the Hyde Amendment are as frank as Henry Hyde himself was when he declared that he wished to prevent all women from accessing abortion. But in advocating the measure, Hyde’s supporters rely on a strange conception of rights, citizenship, and taxation that does not hold up to much scrutiny. Pro-Hyde groups like the anti-choice Susan B Anthony List have claimed that the Hyde Amendment is a protection for Americans who oppose abortion, and therefore, by their logic, should not have to fund it through their taxes. But similar exceptions do not exist for other government budget items that some citizens may object to.
The argument conveniently ignores, too, that women who seek abortions are taxpayers themselves, and the Hyde Amendment imposes on them an unequal protection from the state. Since there is no male medical procedure that is banned from federal funding the way that abortion is, men who use Medicaid receive a full range of coverage; women do not. They pay just as much in taxes as their male counterparts, but they do not receive equal benefits.
Abortion is a right. For now, while Roe v Wade stands, it is a constitutional right. But it will always be a human right. The Hyde Amendment specifically aims to stop Americans from exercising this right, and it makes this right partial – not equally held by every person, but contingent on wealth and status. Hyde should be ended because civil freedoms should not depend on a person’s sex, or on how much money she has. And it should be ended because our laws should be aimed at helping Americans exercise their full rights, maintain their full dignity, and fulfill their full potential.
Abortion access is a precious public god that is necessary for women to be complete citizens, truly equal in freedom and opportunity to men. Ending Hyde is the boldest and most compassionate step we can take to protect it.
Moira Donegan is a Guardian US columnist