The Plan to Take Down the Hyde Amendment

For nearly 50 years, the Hyde Amendment has been considered an unassailable fixture of the United States budget. First passed in 1976, just three years after the now-defunct Roe v. Wade ruling, the amendment prohibits federal programs from covering the cost of most abortions, with exceptions for cases of rape, incest, and life-threatening pregnancies. Although the original amendment applied only to Medicaid, Hyde’s restrictions now extend to other programs, including Medicare, the Federal Employees Health Benefits Program, and the Indian Health Service. To many of its supporters, the amendment serves as both a guard against taxpayers funding abortions and a broad-brush check on abortion access.

Hyde has withstood round after round of litigation and congressional challenges. For the amendment’s opponents, even President Joe Biden’s attempts to undo it—however unsuccessful—counted as progress. Now a Harris administration could give them their first chance in decades to not just attack the amendment, but eliminate it.

“Harris has already set the stage,” Nourbese Flint, the president of the national abortion-rights advocacy group All* Above All, told me. With Roe gone, restoring abortion protections would require making new rules, or eliminating old restrictions, and Kamala Harris has signaled she’d do just that by talking about “what we want in the future, not what we had in the past,” Flint said. Practically, repealing Hyde would immediately change abortion’s availability for millions of Americans. Politically, it could be one of the most viable ways for Harris to fulfill any campaign promises to protect abortion access.

The Hyde Amendment is a congressional “rider” attached to the Department of Health and Human Services’ annual budget, so it must be reapproved every year. The Democratic Party first spotlighted the idea of repealing it in 2016 as part of Hillary Clinton’s presidential platform. Reproductive-rights groups had been arguing that Hyde effectively creates a two-tier system of abortion care: one for patients who can afford to pay out of pocket, and another for poor patients and women of color, who disproportionately rely on Medicaid and who are also more likely to need an abortion. Simultaneously, Democrats were growing more reliant on young, nonwhite, and women voters who might care about the issue of abortion rights.

“There was a stronger focus on the intersection between reproductive rights and questions of racial justice and economic inequality,” Mary Ziegler, a legal historian of the U.S. abortion debate, told me. “It’s also not a coincidence that the first presidential nominee to be vocal about repealing Hyde was the first woman” the Democratic Party nominated for president. The Supreme Court’s 2016 ruling in Whole Woman’s Health v. Hellerstedt, which struck down overly burdensome state restrictions on abortion, also suggested a political opening. Opposing the Hyde Amendment, once seen as a “political loser and stance only for single-issue, pro-choice lawmakers,” Ziegler said, gained rapid traction.

The 2016 election did not exactly mark the issue as a political winner. Nonetheless, in the 2020 presidential race, Harris positioned herself as one of Hyde’s fiercest opponents. As a candidate, Biden was more equivocal: His campaign reaffirmed his support for Hyde just a day before he pledged to overturn it. (Harris confronted him about his flip-flop in one primary debate.) Still, as president, Biden consistently omitted Hyde restrictions from his annual HHS budget proposal, though Congress reinserted them into the final federal budget each year. Harris has indicated her continued opposition to Hyde, too: “The Vice President continues to support the repeal of the Hyde amendment,” a spokesperson for the Harris campaign told me in an email.

Repealing Hyde would immediately erase long-standing constraints on abortions. Today, of the 36 states without abortion bans, 17 use their own funds to pay for abortions for Medicaid recipients. In the remaining 19 states and the District of Columbia, which don’t provide such funding, the one in five reproductive-age women insured through Medicaid can’t receive coverage for most abortions. Paying out of pocket is impossible for many of these women; many others are forced to delay their procedure, increasing its costs and risks, while they raise money.

Eliminating the amendment would not override post-Dobbs abortion bans, so Medicaid recipients in abortion-restrictive areas would still need to travel out of state for the procedure. But abortion advocacy groups would be able to redirect funds that now pay for abortions toward emergency travel expenses and similar initiatives. And Medicaid would no longer “treat abortion separate from every other kind of pregnancy-related care,” Madison Roberts, a senior legislative counsel who works on reproductive rights at the American Civil Liberties Union, told me.

Any proposal from a potential President Harris to omit Hyde language from the HHS budget would face an uphill battle in Congress. Biden’s Hyde-free budget did successfully pass the House of Representatives in 2021, before the amendment was reinstated during negotiation with the Republican-controlled Senate. If Republicans regain control of the Senate in November, they could again insist on including Hyde in the budget; even some Democrats who object to abortion bans might hesitate to support Medicaid coverage for abortion services. Still, Harris has a stronger track record of defending access to abortion than Biden, who for years said his Catholic beliefs went against the practice, though he supported others’ right to choose it. Even within the Biden administration, Harris has made the issue one of her priorities: Earlier this year, she undertook a nationwide tour meant to “fight back against extremist attacks” on “reproductive freedoms,” as the White House put it. That she so clearly cares about reinstating abortion protections could make her a more compelling messenger for the effort to repeal Hyde than Biden ever was. (As the president of one anti-abortion group summed up, “While Joe Biden has trouble saying the word abortion, Kamala Harris shouts it.”)

Nationwide backlash to Dobbs may also have convinced more lawmakers that their constituents support abortion access. “Voters who might have been instinctually comfortable with certain abortion restrictions are now turning out in record numbers to protect abortion rights,” Ziegler said. “Each congressional vote over abortion issues gets more attention, and preserving Hyde will be a tougher sell for Republicans.” And because repealing Hyde would leave state abortion laws untouched, it could face less opposition in Congress than attempts to codify Roe protections and supersede state authority.

But the factors that make ending Hyde a possibility also limit its impact, which would vary substantially by state, especially in the context of existing anti-abortion laws. Undoing Hyde would represent a major victory for a Harris administration, but it might not dramatically alter the overall picture of abortion in the U.S. Instead, it would reflect a broader shift in how the country treats abortion, signaling that the federal government—for the first time in half a century—considers it a standard medical procedure to be funded like so many others.