The Hyde Amendment, the budget rider that has banned most Medicaid funding for abortion, turned 40 this year. In a break from recent tradition, Democrats, including the top of the ticket, now vow to make its days limited.
For years, Democrats have split on the provision: Some said it discriminated against low-income women, disproportionately women of color, while others, spooked by the words "taxpayer funding for abortion," saw it as a necessary political compromise with a divided public.
Hillary Clinton has long declared herself in the first camp, vowing to repeal Hyde amid the strongest yet language on it in the platform. "Because if we have a right, and I think people have a right to health… but certainly the full range of reproductive health rights that women should have includes access to safe and legal abortion," she explained in January at the Brown & Black Forum in Iowa.
Until recently, her running mate, Tim Kaine, was firmly in the second camp. When asked by a Weekly Standard reporter as recently as early July about the Democratic platform including strong anti-Hyde language, Kaine said, "I haven't been informed of that change, but I'm going to check it out. I have traditionally been a supporter of the Hyde Amendment, but I'll check it out."
In comments this week to CNN and Bloomberg News, the Clinton campaign has signaled that Kaine now had indeed checked it out and stands with Clinton on public funding of abortion. "He has said that he will stand with Secretary Clinton to defend a woman's right to choose, to repeal the Hyde Amendment," Clinton campaign manager Robby Mook told CNN.
Some supporters of abortion rights have been uneasy about Kaine's stance, which he has described as personally opposed to abortion and attributes to his Catholic faith. As Virginia governor, Kaine earned a "mixed choice" rating. Still, major pro-choice groups have vouched for him as veep, pointing out Kaine's more recent solid record in favor of abortion rights as a senator.
"Hillary Clinton is the strongest presidential candidate we've seen on reproductive health care in our history and long held the position that we need to repeal the Hyde Amendment," said NARAL president Ilyse Hogue in a statement to NBC News. "We're confident that in Tim Kaine she's chosen a running mate who will help her accomplish her objective of ensuring access to affordable comprehensive health care for women regardless of income."
The Hyde Amendment prevents federal money from being used for abortion unless a patient has been raped or is a victim of incest, or unless her life is in danger. Seventeen states use their own funds to cover abortions more broadly.
More than 1 in 10 American women are insured under Medicaid. According to a study of women across the country by Advancing New Standards in Reproductive Health (ANSIRH) at the University of California, San Francisco, women without insurance or Medicaid coverage typically paid $575 out of pocket for their abortions. For more than half of those women, those costs equaled a third or more of their monthly incomes.
"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," is how Henry Hyde, the late congressman for whom the appropriations rider is named, once described it. "Unfortunately, the only vehicle available is the [Medicaid] bill."
The Supreme Court upheld the amendment in 1980. In his dissent, Justice Thurgood Marshall wrote that for low-income women, "denial of a Medicaid-funded abortion is equivalent to denial of legal abortion altogether," calling it "a form of discrimination repugnant to the equal protection of the laws guaranteed by the Constitution."
Opponents of abortion rights have celebrated the amendment has a major victory. "We believe that the Hyde Amendment has proven itself to be the greatest domestic abortion reduction law ever enacted by Congress," the National Right to Life Committee's Douglas Johnson testified. Citing data showing that a quarter of women who wanted abortions carried to term because of inability to pay, Johnson said, "It means that well over one million Americans are walking around alive today because of the Hyde Amendment."
During the debate over the Affordable Care Act, President Obama affirmed in an executive order that the new law wouldn't change the status quo of the Hyde Amendment, much to the disappointment of abortion rights activist. In fact, under the increased scrutiny, 10 states actually passed bans on private insurance coverage of abortion in plans sold on their exchanges.
Obama's move was largely to placate anti-abortion Democrats in the House, who now barely exist. The anti-abortion Democrats who demanded no change in abortion coverage in the Affordable Care Act eventually lost their seats to Republicans, some after anti-abortion groups unsatisfied by the compromise campaigned against them anyway. According to a tally by political science professor Tobin Grant, there are only two Democrats in the U.S. House of Representatives who identify as pro-life. At the same time, Republicans who support abortion rights have long been even rarer in Congress. "As a result, partisanship is now a near-perfect predictor of how members of Congress vote on abortion-related bills," Grant wrote.
This heightened polarization has freed Democrats to listen to abortion rights activists urging them to rally the base by pushing harder against Hyde. Still, White House spokesman Eric Schultz told reporters this week that the White House had no new position on the Hyde Amendment.
Last week's Republican National Convention was surprisingly silent on abortion altogether. But some advocacy groups hope to change that. "It's time to expose the Democratic Party's extreme stance on abortion, especially their support of later term abortions and their call for taxpayer-funded abortions by repealing Hyde," Marjorie Dannenfelser, president of the anti-abortion Susan B. Anthony List, wrote in Time. She said the group would be "targeting pro-life Democrats, including Hispanics."