Restore, fund and reconcile abortion: the case for a new anti-Hyde Amendment

Access to abortion is no longer a constitutional right in the United States. But it remains a human right. And it is time for Congress to step up and protect this right — through budget measures guaranteeing legal and affordable access to abortion.

Sens. Joe Manchin (D-W.Va.), Kyrsten Sinema (D-Ariz.), Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska) must also step up and support the passage of these measures.

The White House is reportedly still working through the process of budget reconciliation to save at least some of its social infrastructure agenda before the November midterms. It must now add federal permission and funding for abortion to its list of items requiring urgent approval through the reconciliation process. 

Abortion rights were in trouble in many states even prior to the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. They were often subject to a range of legislative obstacles. Some of these were minor barriers to access, and hence constitutional under the undue burden test in Casey v. Planned Parenthood.

Others were major obstacles designed to give the court the opportunity to reconsider Casey, in just the way it did in Dobbs.

An even bigger obstacle for some women was economic in nature — i.e., the so-called “Hyde amendment,” or the legislative ban preventing the use of federal funds to support access to abortion.

Initially, the ban included exceptions only for abortions necessary to save the life of the mother. But in 1994, exceptions were added for pregnancies resulting from rape or incest, which federal law required states to cover through Medicaid.

But, even with top ups to Medicaid funding from many states, this has still left millions of poor women without access to abortion in the decades since.

The Biden administration has announced its intention to end its support for the Hyde Amendment. But after Dobbs, this needs to be made an urgent priority.

The White House – and most importantly Sens. Manchin, Sinema, Collins and Murkowski – should support a budget reconciliation bill that includes a guarantee of safe, legal and affordable access to medically necessary abortions.

A bill of this kind would face a range of hurdles: first, a reluctance by many pro-choice Americans to support the use of government funds for choices they respect but don’t want to pay for.   

Second, a desire on the part of certain Democrats to keep the abortion issue alive well into November — to remind voters just how much is at stake when Republicans take control of Congress.

Third, a law of this kind would need to pass the scrutiny of the Senate parliamentarian, who has taken a strict view of the Byrd rule and its requirements of budget neutrality and a close nexus between spending and regulations passed via the reconciliation process.

But none of these hurdles are insurmountable. Many other countries have struggled with these issues and devised similar compromises — including compromises that involve a willingness to fund medically necessary abortions and to adopt a broad definition of physical and mental health for these purposes.

This, for example, was the result of a decades long battle over abortion in Germany. Germany has also long held that constitutional protection must be given to the fetus under the Basic Law, but that this does not prevent the state from funding abortions necessary to preserve women’s physical and psychological health.

A well-designed law of this kind could provide for universal federal funding for medically necessary abortions but require the claw-back of those funds from private insurers in a range of circumstances. This would go a long way toward ensuring budget neutrality.

And by requiring funded access to abortion, as well as the logical corollary that access be treated as legal under federal and state law, such a law would meet with most sensible interpretations of the requirements of the Byrd rule, at least as it was understood and applied by previous officeholders in the context of measures such as the Health Care and Education Reconciliation Act of 2010. 

A law of this kind would not be perfect. It would undoubtedly encounter opposition on both the left and right. For centrist Democrats and Republicans, funding abortion may seem like a step too far. But the only way forward for abortion rights now lies beyond Casey, and in a much more realpolitik approach to guaranteeing access to abortion under federal law.

A couple of months back, it was understandable that Sen. Manchin might oppose attempts to legislate in ways that expanded abortion rights, beyond existing constitutional understandings. It likewise made sense for Sen. Collins and Murkowski to propose legislation attempting to codify the Supreme Court’s decision in Casey.

No longer. In Dobbs, the court ended 50 years of jurisprudence guaranteeing access to abortion under the Constitution. And it poured a large bucket of cold water on the “undue burden” test the court established in Casey, and that Sen. Collins and Murkowski had proposed enshrining into federal law.

On the left, a shift towards a health-based abortion paradigm may be seen as a retreat from the language of reproductive choice. Because of this, a law of this kind could be seen as a placeholder: It could be supplemented by efforts to restore the constitutional protection of abortion rights, under the 14th Amendment, and by a range of state law enshrining rights to abortion on demand.

But it could also be embraced as heralding a broader shift in the U.S. towards understanding abortion as a basic human right to reproductive health care. 

The Biden administration has already taken valuable steps in this direction, by ensuring that federal regulations protect the distribution of pharmaceutical abortion drugs, even in the face of contrary state law. (Though watch this space for further legal challenges to these steps.)

Moreover, health was an important but under-developed part of the court’s decision in Casey and its guarantee of life- and health-preserving abortion in the later stages of pregnancy.

Most other constitutional democracies also see access to abortion in squarely health-based terms. Many give some weight to women’s choices and decisional freedoms, especially in the early stages of pregnancy. But even more give priority to women’s physical and psychological health, including the mental health effects that flow from an unwanted pregnancy.

The language of health and human dignity also explains why no decent society can afford wholly to ban abortion even at quite late stages of pregnancy.

Many religious conservatives want American law to protect and promote the dignity of human life — and fair enough, given their sincere beliefs on the issue. But respect for the dignity of the fetus cannot end the abortion debate. Abortion also involves women’s dignity — including their dignity of choice and physical and psychological dignity and wellbeing. And women are just as, if not more, entitled to respect for their dignity as the fetus they are carrying.

A health-based paradigm also points to the importance of affordable access to abortion, and regulations of the abortion process that promote women’s health, rather than undermine it.

The Supreme Court has made one thing clear: It is Congress, not the court, that must act if access to abortion is to be preserved for American women. And the best way for it to do so, given current political constraints, is through broad funding and urgent efforts at reconciliation.

Rosalind Dixon is a professor of law at The University of New South Wales Sydney and a former assistant professor at the University of Chicago Law School. Her forthcoming book,” Responsive Judicial Review:  Democracy and Dysfunction in the Modern Age (OUP 2022)” examines Roe v. Wade and Casey v. Planned Parenthood in comparative perspective.