Is the Hyde Amendment Safe After All?

Joe Biden speaks at the Mississippi Valley Fairgrounds in Davenport, Iowa, June 11, 2019. (Jordan Gale/Reuters)
Don’t bet on it.

Nearly four out of ten Democratic primary voters support the Hyde amendment, the ban on federal funding for elective abortions under Medicaid. But following Democratic front-runner Joe Biden’s flip-flop last week, none of the 20-plus Democrats running for president support the measure.

Not to worry, columnist Bill Scher advises pro-lifers: “The Hyde Amendment Isn’t Going Anywhere.” Scher writes at RealClearPolitics: “Democratic presidential nominees always campaign on repealing the amendment, yet Democratic presidents never actually work toward repeal — because if they did, they would lose the fight.”

The Hyde amendment was first passed in 1976 by a Democratic-controlled Congress and signed into law by a Democratic president (Jimmy Carter), but the last two Democratic presidents who opposed the Hyde amendment (Bill Clinton and Barack Obama) did weaken the law governing taxpayer funding of abortion. They did not repeal the Hyde amendment for a simple reason: They didn’t have the votes, despite strong Democratic congressional majorities.

The House, in 1993, strongly supported the Hyde amendment once exceptions for the cases of rape and incest were added. In 2009, 64 House Democrats voted for a measure to block taxpayer subsidies for Obamacare plans that cover elective abortion. (Obamacare ultimately became law with weaker language — taxpayer-subsidized plans would cover elective abortion unless a state outlawed abortion coverage. But Obamacare only passed with the support of self-described pro-life Democrats who pretended it didn’t expand taxpayer subsidies for abortion, and President Obama signed a meaningless executive order affirming that the Hyde amendment would still apply to Medicaid.)

But if Democrats gain control of Congress in 2021, they would very likely have majorities who oppose the Hyde amendment. In 2017, when the House voted to make the Hyde amendment permanent and apply it to Obamacare, only three Democrats supported it. When the Senate voted on that measure in January 2019, two Democrats voted for it (Joe Manchin of West Virginia and Bob Casey of Pennsylvania), but two Republicans voted against it (Susan Collins of Maine and Lisa Murkowski of Alaska).

Even so, Scher argues, “if Democrats won a slim majority in the chamber, and that slim majority voted to junk the legislative filibuster (two very big ‘ifs’), with polls indicating weak support for public funding of abortions, enough purple state Democrats may refuse to go along.”

Now we get to the real issue. Would Senate Democrats kill the legislative filibuster or not? Scher is dubious, but it seems fairly likely if an energized Democratic party takes over Congress and finds out it can’t accomplish much. And even if the Senate doesn’t repeal the filibuster, could Senate Democrats still find a way to effectively fund abortion with a simple majority under budget reconciliation rules? The only person who knows the answer for sure is the Senate parliamentarian.

And if all it takes is a simple majority to kill the Hyde amendment, who are these purple-state Democrats who would save it? Where were they in January when the Senate blocked a bill making the Hyde amendment permanent? Is Tim Kaine, who tied himself in knots on the issue as Hillary Clinton’s running mate, really going to be the decisive vote to save the Hyde amendment? Color me skeptical.

Elected Democrats, unlike Democratic voters, have become almost uniformly supportive of taxpayer funding of abortion. The fact that the Hyde amendment has survived Democratic congresses for the last four decades is no indication of what would happen the next time Democrats gain complete control of government. The Hyde amendment is in real peril like never before.

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