Liberating abortion, p.18
Liberating Abortion, page 18
Photo by Graphic House/Hulton Archive/Getty Images.
How Hyde Happened
Among other things, the Hyde Amendment was retaliation for the 1973 Roe v. Wade Supreme Court decision legalizing abortion nationwide. The antiabortion congressman representing Illinois who introduced the measure, Henry J. Hyde, made no secret of his desire to end access to abortion, but he knew that with Roe in place his only option was to restrict it through the national budget. The congressman was vehemently antiabortion, once stating that “birth is no substantial change, it is merely a change of address.”
Representative Hyde worked hard to find a way to cut off access to abortion, and while he could not legally restrict the procedure, he knew he could cut off financial access for all who depended on the government’s support for their health insurance. Pro-choice lawmakers organized in response to the bill and debated about the impact it would have on low-income people seeking abortions. Tensions were high, as abortion had only been legal for a few years and many legislators knew people who had been harmed by unsafe procedures before legalization. But Representative Hyde was callous and crude in his August 10, 1976, response:
Mr. Speaker, let the poor women of America make a list of those things that society denies them and which are enjoyed by rich women. Decent housing, decent education, decent food, decent income, and then say to them, “Now, those will take second place. But we will encourage you to kill your unborn young children. Besides, there are too many of you anyway.” If rich women want to enjoy their high-priced vices, that is their responsibility. They can get the finest heroin in the world that is not available on the street. They can get a face lift. They can fly to Las Vegas and gamble. That is fine, but not at the taxpayers’ expense.
During later debate on the House floor about the budget rider, Representative Hyde added, “I certainly would 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.”
Congressman Hyde never hid his racism and disdain for people of color seeking abortions. It was baked into every word he uttered. At the time, Representative Barbara Lee worked as a congressional staffer for Representative Ron Dellums and, she told us, she was furious from day one. To her, the racist and discriminatory nature of Hyde’s amendment was clear, as were his words. Representative Lee correctly recalled that in 1977 floor remarks Representative Hyde claimed his policy would affect only “little ghetto kids,” stating that “the life of a little ghetto kid is just as important as the life of a rich person.” Stay classy, Henry.
Hyde believed that it was the government’s role to intervene in the pregnancy decisions of all, explaining, “When the mother, who should be the natural protector of her unborn child, becomes its adversary, then the legislature has a duty to intervene.” That intervention came in the form of a two-tiered medical system, one for the poor and one for the rich. After all, some people with money would continue to access abortions, as they could travel for care.
At first, the Hyde Amendment struggled to get through Congress. The measure failed to get enough votes in the Senate after Democratic Congress members argued that the purpose of the Medicaid program was to fund health care services for the poor, and the failure to cover abortion care would drive these women to “ugly, brutal options” if they could not access abortions through legal means. But antiabortion lawmakers defended Hyde, claiming that although Roe legalized abortion, that ruling “does not translate . . . into an affirmative duty on the part of the federal government to use public funds to finance the termination of human life.” After failing to pass the amendment twice in the Senate, in fall 1976, Congress members agreed on a modified version that would provide exceptions for Medicaid-funded abortion “where the life of the mother would be endangered if the fetus were carried to term.” Former Planned Parenthood president Faye Wattleton observed in her memoir, Life on the Line, that the forthcoming election was what drove the lawmakers to go from not backing the Hyde Amendment to passing an amended version, explaining that they didn’t want to be seen as “disrupting government services over the single issue of abortion for poor women.” They also assumed that the Supreme Court would rule against it, as “everybody knew” the bill was unconstitutional, Wattleton wrote. Indeed, President Gerald Ford vetoed the bill, only for Congress to override his veto. The bill became law on September 30, 1976. A lawsuit prevented it from taking effect for nearly a year until the Supreme Court ruled, allowing the restrictions. That’s when Rosie encountered it.
Today, the Hyde Amendment prevents not only people with low incomes from accessing abortion, but also government employees, people in the military, veterans, and Indigenous people receiving care through the Indian Health Service—basically everyone who receives insurance through a government program. This rule has been one of the most effective ways of restricting access for millions of people in the United States. And since Rosie’s death, many other pregnant people have been forced to seek care outside of a clinic setting or have been forced to continue pregnancies when they would otherwise have had an abortion.
Poster advertising a 1970 demonstration to repeal abortion laws by the Massachusetts Organization for Repeal of Abortion Laws.
Courtesy of the Valley Women’s Center Papers, Sophia Smith Collection, Smith College, Northampton, Massachusetts.
The Legacy of Hyde Lives On
Perhaps one of the most important legacies of the Hyde Amendment is how it rolled back gains civil rights activists had made in integrating a segregated health care system. Under President Johnson’s Medicare program, hospitals had to provide services to both Black and white patients in order to qualify for federal funding. The Hyde Amendment created an avenue for doctors to deny Medicaid patients services, in this case abortions, and many of those patients were people of color. After all, folks with money, often white people, would continue to access abortions, as their insurance covered it. Dr. Curtis Boyd, a white abortion provider who provided care in Dallas and Santa Fe before Roe through referrals from the Clergy Consultation Service on Abortion, told us that prior to 1973, most of the patients he saw were white women, middle- or upper-class, and predominantly university students referred by white clergy. It wasn’t until the end of the 1970s that he noticed a shift in the race of his patients, from white women to predominantly Latinx and Black women, who previously were likely still getting care from community midwives or across the border. “I can’t prove this, but these [white] women all had private doctors; they had money, insurance, access, and they went to their doctor to deal with this problem they had.”
At the same time that Medicaid recipients were denied their abortions, the Medicaid program fully covered prenatal and postnatal care, including labor and delivery. So, in essence, the government has been forcing people to be pregnant, by making it easier for them to receive coverage to stay pregnant than to end their pregnancies. Make no mistake about it: nothing about the Hyde Amendment is normal or okay. People should not be forced into a life-changing situation based solely on the type of insurance coverage that they have.
We also want to note that although racist policies in welfare programs were designed to harm Black communities, other groups have been directly affected. Latinx people have been diverted away from applying for the meager welfare benefits or other social programs available in their communities when they were eligible for them or channeled into low-wage, unstable jobs. Immigrants who qualify for benefits have been discouraged from applying for fear of impacting their ability to live and work in the United States.
As part of its efforts to improve health insurance coverage for children, pregnant women, older people, and people with disabilities, Congress began uncoupling eligibility for Medicaid from welfare programs. Rather than relying on a person’s ability to qualify for public cash assistance, the government measured the person’s income against the federal poverty level. But since that had the inevitable effect of increasing the number of people eligible for Medicaid, in 1996, Congress banned immigrants from receiving coverage. Immigrants now had to wait five years after they entered the United States to qualify. President Bill Clinton signed the law as part of a slew of social welfare reforms that added work requirements and time limits for recipients. There was little challenge from the reproductive rights movement against the pro-choice president’s decision at the time, even though the move was clearly antifamily and antireproduction. This policy impact is very real for undocumented immigrants, who have to go to great lengths to avoid the ever-increasing border patrols and local police who are given the power to question their immigration status as they cross an immigration checkpoint on the way to a clinic. The fear of detention and deportation is added to the list of barriers created by our inequitable health care system.
Map of state policies on public funding of abortion as of March 31, 1978, published by the Committee for Abortion Rights and Against Sterilization Abuse, in CARASA News II, no. 5 (June 1, 1978).
Courtesy of the Karen Stamm collection of Committee for Abortion Rights and Against Sterilization Abuse in CARASA records, Sophia Smith Collection, Smith College, Northampton, Massachusetts.
The Fight to End Hyde
Since the Hyde Amendment went into effect, some reproductive health activists and lawyers have fought against it, but their efforts suffered a major blow on June 30, 1980, when the Supreme Court issued its decision in the Harris v. McRae case. Cora McRae, the lead plaintiff in the case, sought a first-trimester abortion but was denied coverage under Medicaid as a result of the Hyde Amendment. McRae and her co-plaintiffs argued that the Hyde Amendment was a violation of the First, Fourth, Fifth, and Ninth Amendments to the Constitution, because the budget rider limited the public funding of abortion but permitted the public funding of childbirth costs. The case eventually made its way to the Supreme Court, which ruled in a 5–4 decision that a person’s constitutional right to an abortion did not include “a constitutional entitlement to the financial resources to avail herself of the full range of protected choices.” In short, you can have the right to an abortion, but if you cannot afford to exercise your right, the government has no responsibility to help you.
The Harris v. McRae case was the first to undermine Roe v. Wade. Not only did it allow the Hyde Amendment to remain intact, but it also ended coverage for abortion through the Indian Health Service, which had been covering abortion care until that point. The decision meant that the right to an abortion existed only on paper and for those who could afford it. As a result of the decision, for those who could not afford an abortion on their own, the government had the ability to financially coerce Medicaid recipients into continuing their pregnancies by solely covering care related to childbirth, thus ensuring there would always be a broken system of access to abortion. In his dissent in the case, Justice Thurgood Marshall underscored this point, writing, “By thus injecting coercive financial incentives favoring childbirth into a decision that is constitutionally guaranteed to be free from government intrusion, the Hyde Amendment deprives the indigent woman of her freedom to choose abortion over maternity, thereby impinging on the due process liberty right recognized in Roe v. Wade.” Justice Marshall also noted that the Hyde Amendment was “designed to deprive poor and minority women of their constitutional right to choose abortion.”
The outcome of this decision is further complicated by the lack of investment in pregnancy care across the United States, leaving low-income patients with no real options. A study published in 1996 examining the decade following the Harris v. McRae decision noted that financial barriers were the most important factor contributing to pregnant patients receiving inadequate health care.
And yet at the time, the Supreme Court argued that poor people’s options for terminating their pregnancies wouldn’t be any different had the Hyde Amendment not blocked their access to abortion. But they would have been different, as Rosie Jimenez’s case clearly shows: she had had two previous abortions that were covered under Medicaid. It was only after Representative Hyde dismantled a lifeline for Medicaid recipients that Rosie sought an unsafe abortion.
The link between abortion bans and poor maternal health outcomes could not be clearer. Immediately following the Roe ruling, maternal mortality rates steeply declined, falling by 30 to 40 percent for people of color. As abortion became more widely available, maternal health care improved, because patients had legal options for termination rather than the dangerous methods or back-alley providers that were prevalent during the era immediately preceding Roe. Today, the states with the most extreme abortion restrictions also have the highest maternal death rates. A May 2023 New Yorker article documented that in Texas doctors were seeing more incidents of maternal sepsis after the notorious SB8 went into effect. One Houston doctor told the magazine, “We are seeing more frequent first-trimester complications, and my colleagues and I sense that it’s leading to more death.”
Clinicians are reporting that the patients arriving with first-trimester complications have experienced incomplete abortions, when fetal tissue remains in the uterus following a medication abortion or the use of another abortion method. Prior to the 2021 Texas law, most patients would seek follow-up care after their abortions without fear. But the criminal environment has led to fewer people seeking follow-up care. Doctors have also noted an increase in second-trimester deaths from sepsis, which they believe will likely be the leading cause of pregnancy-related deaths in Texas. But the problem isn’t just in Texas, or even just in conservative states. As more hospitals are owned by Catholic churches or operated under Catholic doctrines, we are seeing an increase in patients being turned away from care or being denied abortions until it is too late. Given the maternal morbidity rate for Black and Brown pregnant people, access to an abortion in a timely manner is a life-or-death situation. But politics and money stand in the way of a pregnant person’s right to life.
Political cartoon published by the Committee for Abortion Rights and Against Sterilization Abuse in CARASA News II, no. 5 (June 1, 1978).
Courtesy of the Karen Stamm collection of Committee for Abortion Rights and Against Sterilization Abuse in CARASA records, Sophia Smith Collection, Smith College, Northampton, Massachusetts.
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With the Supreme Court’s 1980 blessing, the Hyde Amendment has remained in place. Abortion rights activists have created abortion funds in communities across the country to fill the access gap. Abortion funds are local organizations that raise money to help people pay for their abortions. One of the first abortion funds was named in Rosie Jimenez’s honor, and although it didn’t have a lot of money to support people seeking abortions during its formative years, it has since transformed into the Lilith Fund, which still operates in Texas. Today, abortion funds work to meet the needs of people traveling across state lines to have their abortions, to cover their transportation, childcare, and other costs related to complying with severe restrictions such as forced waiting period laws or outright bans in their home states. The resources provided by each abortion fund varies depending on the community’s need.
For Rachael Lorenzo (Mescalero Apache / Laguna Pueblo / Xicana), who founded Indigenous Women Rising (IWR) in 2014, it was imperative that the organization provide both financial support to Native people in the United States and Canada for their abortions and funding for perinatal care and other sexual health resources that are not offered in Native communities serviced by the federal Indian Health Service, which is subject to the Hyde Amendment. Rachael started developing the organization shortly after having a harrowing abortion experience of their own in 2013.
At twenty-three, Rachael found out they were pregnant and was excited about having a second child. But at a prenatal appointment, their doctor said that the pregnancy was not progressing properly and that they would have to wait for it to pass on its own. “Abortion wasn’t even presented as an option for me,” Rachael told us. So they waited two or three months, letting the pregnancy progress on its own. Meanwhile, they were working on the Respect ABQ Women campaign, a 2013 effort to defeat an antiabortion ballot measure in Albuquerque, New Mexico. In early December, on the heels of winning the campaign, Rachael began experiencing contractions and could barely stand up. Although Rachael was experiencing “the most pain I’ve ever felt in my life,” they told us the emergency room staff refused to administer pain management due to their weight. Rachael waited for hours and began bleeding on the hospital bedsheets. They felt dehumanized. Once the doctor arrived, Rachael was finally offered a procedural abortion and opioids for pain management (they subsequently developed an addiction). “After that experience, I really wanted to talk to other people about abortion.” Rachael began asking about Indigenous people’s experiences with abortion, such as whether they partook in any traditions or ceremonies following their procedure. “I just wanted to meet other Native people. We have to be able to tell our stories, because I can’t be the only one who had such a painful experience.”
As part of their effort to connect with others, Rachael launched IWR’s abortion fund in 2018. They found the reproductive justice framework and learned about connecting oppressions, such as how fatphobia and racism impact the full spectrum of pregnancy care and all health care. “I started making all of these connections, and then I started realizing like, holy shit, not only was my abortion a dehumanizing experience, but basically my entire life experience with doctors, who commented on my body or different aspects of my body, and how that was actually really sexual harassment.” This became an awakening for Rachael—not only to ways people experience abortion care but also to how we advocate for safety, sexuality, and pleasure. “It’s about creating the life that you want, and that we don’t have to subscribe to colonizer ideals of beauty.”
