Why We Must Defend Hyde and Helms Amendments

Steven Mosher
March 12, 2021
Reproduced with Permission
Population Research Institute

Regardless of what opinions one holds on abortion, Americans have long believed that taxpayers - many of whom are deeply opposed to abortion for moral or religious reasons - should, at the very least, not be forced to pay for the cost of a woman's abortion through their taxes. This position has long been non-controversial and widely accepted by even many Americans on the left.

But now, Democrats in Congress and within the Biden administration are calling for the repeal of both the Hyde and Helms amendments, laws which for decades have protected a large subset of Americans from being forced to pay for activities they find deeply morally objectionable.

For decades, both Democrats and Republicans in Congress have worked together to pass middle-of-the-road, compromise legislation that ensures that taxpayer dollars are not used to pay for abortions in federally funded programs. Over the years, dozens of bipartisan bills blocking federal funding for abortion have been passed with the support of both parties in Congress and signed into law by every U.S. president since Richard Nixon.

Perhaps the most well-known example of this is the Hyde Amendment, a provision of law which prohibits federal tax dollars from paying for abortion through Medicare, Medicaid, and the Children's Health Insurance Program (CHIP). The Hyde Amendment bans federal funding for abortion in these federally funded healthcare programs in all cases except in cases of rape, incest, or where a physician certifies that the pregnancy places the mother's life in danger. Medicaid is a health reimbursement program for certain low-income Americans that is jointly funded by the federal government and the states.

The Hyde Amendment has been included every year in the annual budget bill Congress uses to fund the government since 1976. The provision has always been passed as part of Congress' annual omnibus appropriations bill without serious opposition or controversy.

Another well-known law passed long ago by Congress to prevent public funding for abortion is the Helms Amendment.

Passed in 1973 as an amendment to the Foreign Assistance Act of 1961, the Helms Amendment prohibits U.S. foreign aid from being used to pay for abortions in foreign countries. Additionally, the Helms Amendment also forbids U.S. foreign assistance dollars from being used to "motivate or coerce" any woman into having an abortion.

In recent years, politicians on the left have increasingly called for the repeal of the Hyde and Helms amendments.

During the Democratic presidential primaries this past election cycle, every Democratic candidate for president supported a repeal of the Hyde Amendment.

President Joe Biden infamously made headlines in the summer of 2019 when he flip-flopped on the Hyde Amendment during his campaign for president, saying that he would endorse a repeal of the Hyde Amendment after having publicly supported the law for 43 years as a Senator and as former Vice President.

"I can't justify leaving millions of women without access to the care they need and the ability to … exercise their constitutionally protected right," Biden had said at the time.

Then-presidential candidate Biden had dropped his 43-year support of the Hyde Amendment just one day after his campaign had confirmed to NBC News that he still supported the law.

The Democratic Party Platform for the first time called for the repeal of the Hyde and Helms amendments in 2016 . Democrats again reiterated a commitment to repeal Hyde and Helms in their party platform in 2020 , pledging that Democrats will work to "repeal the Hyde Amendment, and protect and codify the right to reproductive freedom" and "will support the repeal of … measures like the Helms Amendment, which limit safe access to abortion."

Some Democratic members of Congress have long called for a repeal of the Hyde Amendment. But with Democrats now having secured the White House, a majority in the House of Representatives, and a slim majority in the Senate, calls for repealing the Hyde Amendment are growing stronger.

"The Hyde Amendment is a discriminatory policy," Democratic Rep. Rosa DeLauro had said at a Congressional hearing last December concerning the status of Hyde Amendment according to NBC News . "This is the last year," NBC quoted her saying.

Recent polling shows that overwhelming majorities of Americans support the aims of both the Hyde and Helms amendments.

A Knights of Columbus/Marist survey from last year found that 59% of Americans are opposed to using tax dollars to pay for abortion procedures (margin of error of ±3.7 percentage points). The Hyde Amendment prevents federal tax dollars from being used to pay for abortion procedures in federally funded health programs.

Public support for the Helms Amendment runs even higher. According to the same survey, a full 76% of Americans say they oppose using tax dollars to pay for abortion in foreign countries (±3.7 percentage points).

Freedom of thought, conscience, and religion are core values at the heart of our democracy and our national identity. Americans are generally opposed to laws which hinder a person's right to freedom of speech, thought, belief, religion, or conscience.

For many Americans, abortion is murder. Many Americans have deeply-held moral or religious reasons for opposing abortion. They believe strongly that paying for abortion through their tax dollars compels them to act against their deeply-held beliefs by funding activities with their own money that they find gravely immoral and evil.

Progressives have attempted to argue that public funding for abortion is necessary for low-income women to effectively exercise their so-called "right" to abortion because without government assistance, they cannot afford an abortion. Progressives have also argued that compelling people who have moral or religious objections to abortion to pay for abortion procedures through their tax dollars is justifiable because all citizens are required to pay taxes for many things they disagree with.

The unjust killing of an innocent human being, however, can never be considered a right. From a moral perspective, no court decision or law passed by Congress can ever make abortion a right.

But even if we set aside moral considerations and just focus on the jurisprudence on abortion handed down by the courts, there can be found no right to government funded abortion. The Supreme Court in Roe v. Wade erroneously held that a woman has a qualified "right" to abortion. But the Court has never held that the government must provide the means by which a person can effectively exercise any right, let alone the so-called "right" to abortion.

Under the Bill of Rights, all Americans have the right to freedom of speech, right to peaceable assembly, freedom of the press, and so on. But the government is under no compulsion to provide funding for anyone to effectively exercise any of these rights.

A person is not entitled to a government grant to exercise his right to freedom of speech, even if the person does not have the financial means to exercise that right. A blind person does not have the right to demand that the government purchase for her expensive speech recognition software even if such would dramatically improve her career prospects. A person who wants to set up a television station to express his views on politics has no right to demand the government give him the money for studio equipment. Everyone has the right to marry and found a family, but the government is under no obligation to pay for the expenses that make starting a family possible. In the same way, no person has the right to receive government funding to pay for an elective abortion, even if women have a so-called "right" to an abortion (according to Roe v. Wade ).

The Supreme Court has made this point clear in its decision in Harris vs. McRae , a 1980 Supreme Court decision in which the Court upheld the Hyde Amendment as constitutionally valid. In Harris vs. McRae , the Supreme Court addressed this very question, stipulating that "it does not follow that a woman's freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices."[1] Moreover, the Court found that "A refusal to fund protected activity, without more, cannot be equated with the imposition of a "penalty" on that activity."[2]

The government has no obligation to pay for abortions and in fact should not do so, particularly when most Americans are deeply morally opposed to subsidizing the cost of abortion procedures.

As for paying for things through taxes that you do not agree with, a comparison can hardly be made when it comes to abortion. There is no moral equivalence between paying for the killing of an unborn child and federal expenditures one may disagree with, even fervently. There are always government expenditures that seem pointless, frivolous, or even downright wasteful to many people. But for Americans who view abortion as the killing of an unborn child, public funding for abortion is not just unreasonable or dislikeable, it violates their fundamental beliefs and hinders their ability to live according to their consciences.

A democracy cannot exist when its citizens are not free to live according to the dictates of their consciences. Forcing citizens who deeply oppose abortion to pay for abortion procedures through their own hard-earned wages is tantamount to government coercion. Any law which hinders a person's ability to act on their deeply-held beliefs or which compels them to act in opposition to their deeply-held beliefs is not only antithetical to American values but also a violation of their fundamental human right to live their lives in accordance with their deeply-held beliefs.

The Hyde Amendment has not only protected the conscience rights of roughly half of the country, the law is also directly responsible for saving the lives of millions of Americans.

According to a study from Michael New, the Hyde Amendment has saved an estimated 2.46 million lives since 1976. I would challenge anyone to say which of these 2.46 million lives - many of whom are with us today as children, teens, and adults - should have never been born.

Thanks to the passage of the Helms Amendment soon after Roe v. Wade , the U.S. government has never funded abortion procedures through foreign assistance. It is thus not possible to estimate a counterfactual for how many infant lives have been saved as a result of the Helms Amendment. But the Helms Amendment has no doubt saved many lives even if the number of lives saved cannot be quantified.

In addition to saving lives, the Helms Amendment has also protected the international image of the United States. In most of the countries that the U.S. government provides significant foreign assistance, people are generally opposed to abortion. Allowing the government to fund abortion in foreign countries would harm U.S. foreign aid efforts and would erode the trust that U.S. aid programs in foreign countries have with their beneficiaries. Funding abortion through foreign assistance would also send a hostile message to people opposed to abortion in foreign countries that the U.S. government does not respect their values, their beliefs, or their culture.

While many pro-abortion activists complain about the funding restrictions contained in the Hyde Amendment, the law is actually less restrictive than it used to be. The original version of the Hyde Amendment passed by Congress in 1976 only made exceptions in cases necessary to save the life of the mother. This version of the Hyde Amendment garnered support from all political parties in Congress at the time (Democrats, Republicans, Independents, and Conservatives alike). The bill was even passed over a veto by then-President Gerald Ford. Ford actually supported the Hyde Amendment but vetoed the bill for fiscal reasons that were unrelated to the Hyde Amendment.

During the Carter administration, exceptions to the Hyde Amendment were added in cases of rape, incest, and long-lasting damage to the physical health of the mother as certified by two physicians. After the U.S. Supreme Court upheld the constitutionality of the original Hyde Amendment in its landmark decision in Harris v. McRae , Congress removed the exceptions in cases of rape, incest, and health from the Hyde Amendment. From 1981 until 1993, the Hyde Amendment banned public funding for all abortion through Medicaid and Medicare except in cases necessary to save the life of the mother alone. In 1993, Congress added back exceptions in cases of rape and incest, and it is this version of the Hyde Amendment that has been passed by Congress every year since to this day.

While the Hyde Amendment prevents federal dollars for Medicaid from being used to pay for abortion procedures, states are free to use their own state contributions to Medicaid to pay for abortions. The vast majority of states follow the Hyde Amendment and only fund abortion in cases to save the life of the mother, or in cases of rape or incest. However, a few states have freely chosen to adopt legislation that allows the state to pay for all "medically necessary" abortions for persons who qualify for Medicaid. In these states, state taxes are used to pay for "medically necessary" abortions. Several more states have also been forced by the courts to pay for "medically necessary" abortions through Medicaid in their state.

Currently, 28 states prohibit Medicaid dollars from being used to pay for abortion except under the Hyde exceptions (life of the mother, rape, and incest). If the Hyde Amendment were repealed, however, all Americans would be forced to pay for abortion through their federal taxes. The map below illustrates the net impact that repealing the Hyde Amendment would have on American taxpayers.

Click here to see map : https://www.pop.org/why-we-must-defend-hyde-and-helms-amendments/?eType=EmailBlastContent&eId=bad5036a-5e9f-44df-b144-93bba9aee2b2

If you live in a green state, your state does not use state funds to pay for abortion procedures through Medicaid. The only abortions that are paid for through Medicaid in your state are abortions that qualify for one of the Hyde exceptions (life of the mother, rape, and incest). Abortions under these rare circumstances are paid for only with federal funding, not with state funding (except in North Carolina). In South Dakota, Medicaid funds can only be used to pay for an abortion when the mother's life is at risk.

If you live in a red state, your state does not use state funds to pay for abortion procedures through Medicaid except in rare cases such as grave risk to the physical health of the mother or in cases of fetal disability. Medicaid dollars are also used to pay for abortions in cases of life of the mother, rape, or incest, but federal dollars are typically used to pay for this, not state funds.

If you live in a blue state, then your state already pays for all "medically necessary" abortions for women who qualify for Medicaid.

Lawmakers and elected officials do not just represent people who share their partisan ideological leanings. They represent all their constituents. And on the federal level, their decisions affect all Americans. Americans should not be forced to pay for abortion procedures through their tax dollars. Policymakers must respect the conscience rights and deeply held beliefs of all citizens and not seek to force them to support government funded objectives that deeply offend their moral principles. The government never get involved with funding abortion or the termination of life in the womb.

Lawmakers of all political leanings should get behind and support the Hyde and Helms amendments and other policies which prevent federal funding for abortion. Americans except this of their leaders and citizens of this country should hold elected leaders accountable to it.