What Is the Hyde Amendment?

A History, Its Impacts, and How It Might Shape Future Healthcare Reform

The Hyde Amendment effectively prevents federal funding from being used to pay for abortions—with very limited exceptions—via any programs that are administered by the Department of Health and Human Services (HHS).

The amendment, introduced by Rep. Henry Hyde (R, Illinois), was enacted in 1976, and although it has never become a permanent law, Congress has renewed it annually for the last four decades, attaching it as a rider to HHS appropriations bills.

The only exceptions under the Hyde Amendment are cases involving rape or incest, or when the mother's life is in danger.

Whose Coverage Is Impacted?

The amendment primarily affects women who are covered by Medicaid, but it also extends to the Children's Health Insurance Program, Indian Health Services, and Medicare (roughly a million women of child-bearing age are covered under Medicare, as the program covers those with disabilities in addition to the elderly).

And similar provisions have been enacted over the years that apply to coverage provided to women in the military (TRICARE), federal workers who get their coverage via the Federal Employee Health Benefits Program, and women who are serving in the Peace Corps.

The ban on abortion coverage for Peace Corps volunteers and women serving in the military actually went beyond the requirements of the Hyde Amendment, from 1979 through 2014 for Peace Corps Volunteers, and from 1981 to 2013 for women in the military.

The 1979 Peace Corps appropriations bill included a total ban on abortion coverage for volunteers, regardless of rape, incest, or danger to the woman's health. That ban remained in place until 2014, when a new appropriations bill extended abortion coverage to Peace Corps Volunteers in cases of rape or incest, or when the woman's life would be endangered by carrying the pregnancy to term. Since then, Peace Corps volunteers have had abortion coverage equivalent to what the Hyde Amendment provides. That's to say, it's almost never covered, but in cases of rape, incest, or danger to the mother's life, it is.

Starting in 1981, for women serving in the military, abortion was only covered if the woman's life was in danger of continuing the pregnancy. But in 2013, military coverage was extended to include coverage for abortions in cases of rape or incest, bringing it into line with the Hyde Amendment.

Medicaid Coverage of Abortions

Because of the Hyde Amendment, federal Medicaid funds (which flow through HHS) cannot be used to pay for abortions except in cases of rape, incest, or a danger to the mother's life.

Thanks in part to the Affordable Care Act's expansion of Medicaid (which is now in jeopardy following the election of Donald Trump), two out of every 10 American women of reproductive age are covered by Medicaid.

And abortions are disproportionately obtained by women who are low-income. Nearly half of the abortions performed in 2014 were for women with income below the poverty level. Under the Affordable Care Act (ACA), everyone with income under the poverty level would have access to Medicaid, but there are still 19 states that refused to expand Medicaid, and in 18 of them, there's a coverage gap. So some women with income below the poverty level have no realistic option for health insurance. Many of the rest have Medicaid, although the Hyde Amendment blocks federal Medicaid funding for abortions in most cases.

But Medicaid is jointly funded by the state and federal governments. And 15 states use state Medicaid funds to cover abortions in circumstances other than just rape, incest, or a danger to the mother's life:

  • Alaska
  • California
  • Connecticut
  • Hawaii
  • Maryland
  • Massachusetts
  • Minnesota
  • Montana
  • New Jersey
  • New Mexico
  • New York
  • Oregon
  • Vermont
  • Washington
  • West Virginia

Most of these states do so as a result of a court order. Arizona and Illinois are also subject to similar court orders but continue—in violation of the court orders—to only provide Medicaid funding for abortions in cases of rape, incest, or danger to the mother's life.

What About the Health Insurance Exchanges?

Donald Trump won the presidential election in 2016 and has promised to repeal and replace the ACA. So the future of the law is up in the air. But for the time being, the Hyde Amendment does play a role in how coverage is provided and funded in the health insurance exchanges.

The ACA established a health insurance exchange in each state, most of which are run by the federal government via HealthCare.gov. All individual market plans sold since 2014—including those for sale in the exchanges—must include coverage for the 10 essential benefits defined by the ACA. Although well-woman care, contraceptives, and maternity coverage are all required benefits, abortion is not. But at the same time, ACA-compliant health plans are not barred from covering abortions.

States can implement their own rules in terms of whether health plans for sale on the exchange can provide coverage for abortions. As of 2016, there were 25 states that had implemented their own regulations to restrict access to abortion services on plans sold through the exchange. Most of them provided exceptions that align with the Hyde Amendment (ie, cases of rape, incest, or danger to the mother's life).

The exchange is the only place where premium subsidies are available, and advocates for reproductive rights have noted that in those 25 states (along with six other states where insurers are allowed to include coverage for abortion on their exchange plans but have chosen not to do so), there is no access to affordable health insurance with abortion coverage.

But on the other side of the debate, advocates note that in states where abortion coverage in the exchanges is allowed, it can be difficult for pro-life enrollees to determine which plans cover abortions and which don't. As of 2016, there were two states—Hawaii and Vermont—where all of the available exchange plans included coverage for abortion, creating an ethical dilemma for enrollees with philosophical opposition to abortion.

Health insurance plans sold through the exchanges are partially funded via the ACA's premium subsidies. So compliance with the Hyde Amendment requires health insurers in the exchanges that offer abortion coverage—beyond the narrow exceptions in the Hyde Amendment—to collect two separate premium payments and keep them in separate accounts. That's how they ensure that subsidies are only used to offset the cost of coverage for services not related to abortions. But from the consumer's perspective, it's not that complicated, as the law allows the entire premium bill to be paid with a single payment, and the carrier can separate out the amounts after receiving the payment.

An Obstacle to Single-Payer Health Coverage

Although it was resoundingly defeated by Colorado voters in the 2016 election, single-payer advocates attempted to introduce ColoradoCare, a single-payer health coverage system that would have taken effect in 2019. The proposal was, unsurprisingly, rejected by conservatives. But it was also rejected by some progressive groups, who would normally be in favor of a single-payer healthcare proposal. One of the problems for progressive advocates had to do with abortion funding.

NARAL Pro-Choice Colorado opposed ColoradoCare on the grounds that it would eliminate coverage for abortions in the state. Their concern was that the Colorado Constitution has, since 1984, prevented the use of state funds to pay for abortion "except when necessary to prevent the death of the woman or unborn child where every reasonable effort is made to preserve the life of each."

ColoradoCare would have been funded via a combination of state and federal funds under an Affordable Care Act 1332 Innovation waiver. Although the ColoradoCare information that was put forth prior to the election didn't mention abortion at all, pro-choice advocates felt that there was no way the plan would have been able to fund abortion, and they worried that the women in Colorado who currently have abortion coverage via private insurance would lose access to coverage for abortions under ColoradoCare.

Similar concerns were noted when Senator Bernie Sanders (D, Vermont) proposed his single-payer "Medicare for All" approach. Since Sanders' plan would have largely eliminated private plans (where abortion coverage is widely available) and replaced them with federally-funded health insurance overseen by HHS (and thus subject to the Hyde Amendment) millions of women would have lost health insurance coverage for abortion.

But single-payer healthcare is completely off the table for the foreseeable future, following Trump's win in the presidential election and the Republican majority in the House and Senate.

Will the Hyde Amendment Be Codified into Law?

President-elect Donald Trump stated many times during his campaign that he opposed abortion. And although his campaign website didn't include a reference to abortion in his healthcare platform, his transition website has a brief healthcare reform summary that specifically says his Administration will work to " protect innocent human life from conception to natural death."

While the Democrats and Hillary Clinton called for removing the Hyde Amendment altogether, the Republican Party Platform called for codifying it into law. The House of Representatives passed legislation in 2011 that would have made the Hyde Amendment a permanent law, but it didn't pass the Senate.

In September 2016, Trump wrote a letter in which he doubled down on his opposition to abortion, including his plans to appoint anti-abortion justices to the Supreme Court, and his desire to make the Hyde Amendment a permanent law.

It remains to be seen whether the Hyde Amendment will become permanent. For now, we can assume that at a very minimum, it will continue to be added to appropriations bills for the foreseeable future.

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