“The Hyde Amendment is designed to deprive poor and minority women of the constitutional right to choose abortion.” – Justice Thurgood Marshall

September 30th marks 40 years of the Hyde Amendment, the federal policy that denies access to abortion to millions who rely on government-funded health insurance plans. The Hyde Amendment affects members of the military, volunteers in the Peace Corps, and those who work for the federal government - as well as every family member enrolled in their insurance plan.

It also targets low-income women who qualify for Medicaid, disabled women who qualify for Medicare, Native women who use the Indian Health Service, and women sentenced to federal prison, among others.

The original sponsor was quite clear that his policy singled out women with the fewest resources. As Representative Henry Hyde of Illinois said:

“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.”

Congress has continued to attach these funding bans to the federal budget, year after year.

Government insurance programs paid for abortion care after the Supreme Court’s decision in Roe v. Wade in 1973. But just a few years later, the Hyde Amendment took away that lifeline, leaving women to scramble to raise money – find more work, find something to sell, decide which bill not to pay; have a baby they are not prepared for; or even find a cheap illegal abortion provider or take matters into their own hands.

A group of Medicaid recipients and abortion providers challenged the policy, and in 1980, the Supreme Court narrowly upheld the Hyde Amendment. In Harris v. McRae, a bare majority of the Court decided, in essence, that women are victims of their poverty, not of federal policy (and apparently government policy has nothing to do with who lives in poverty). They also decided that the government could choose to favor childbirth over abortion as a matter of public policy and allocate or withhold money accordingly.

But the eloquent dissents of four justices show a very different understanding of the Constitution, grounded in the reality of people’s lives. As Justice Brennan said:

“In the abstract, of course, this choice is hers alone… But the reality of the situation is that the Hyde Amendment has effectively removed this choice from the indigent woman’s hands.”

Justice Marshall agreed, calling it an “undeniable fact” that “for women eligible for Medicaid – poor women – denial of a Medicaid-funded abortion is equivalent to denial of legal abortion altogether.”

Justice Stevens took on the idea that Congress can favor one pregnancy outcome over another: “Having decided to alleviate some of the hardships of poverty by providing necessary medical care [through Medicaid],” he argued, “the government must use neutral criteria in distributing benefits.”

As a result of the Court’s decision, today the federal government and about two-thirds of the states restrict access to abortion under Medicaid to a few narrow and heart-wrenching situations, usually when the pregnancy endangers the woman’s life or resulted from rape or incest.  As Justice Marshall observed, these harsh restrictions take a heavy toll on women of color, who are more likely to have incomes low enough to qualify for Medicaid.

Perhaps not surprisingly, the same politicians who oppose funding for abortion typically oppose funding for contraception, reasonable accommodations for pregnant workers, paid family and medical leave, and subsidized childcare and early education – the types of policies that make having and caring for children feasible.

Today, a broad-based coalition is organizing to repeal the Hyde Amendment and restore abortion funding, reinforcing the efforts of abortion funds and groups led by women of color that have long kept this issue at the top of their agenda. Allies in Congress have even introduced legislation to secure women’s constitutional rights once and for all.

Learn more:

EACH Woman Act (Equal Access to Abortion Coverage in Health Insurance) of 2015

All Above All coalition

National Network of Abortion Funds – provides financial help to those who cannot afford an abortion and practical support with transportation, housing, and other needs for those who have to travel long distances to get to an abortion provider

The Center on Reproductive Rights and Justice (UC Berkeley Law School) – initiative to overturn Harris v. McRae and collection of research on abortion funding bans

Rewire series with Physicians for Reproductive Health on the impact of the Hyde Amendment