The Hyde Amendment and Coverage for Abortion Services
Since the Supreme Court’s 1973 decision in Roe v. Wade, abortion has been squarely in the middle of political debates at the national and state levels. Soon after the Court’s ruling, Congress enacted the Hyde Amendment which blocks federal funds from being used to pay for abortion outside of the exceptions for rape, incest, or if the pregnancy is determined to endanger the woman’s life. Since its passage 40 years ago, the law has dramatically limited coverage of abortion under Medicaid, as well as other federal programs. The amendment was sponsored and supported by legislators who opposed abortion and, in particular, objected to the federal government’s use of taxpayer money for abortion services. The policy was not passed as a permanent law, but rather was attached as a temporary “rider” to the Congressional appropriations bill for the Department of Health and Human Services (HHS). Since then, the Hyde Amendment has been renewed annually by Congress. While abortion policy has been a hotly contested issue in most presidential elections, the Hyde Amendment had not been the focus of these debates until the 2016 election. Following their party’s platforms, Hillary Clinton, the Democratic candidate, called for the repeal of the Hyde Amendment during the 2016 presidential election, and Donald J. Trump, the Republican candidate and current president, called for the annual provision to become permanent law.1 Any change to the policy would require approval by Congress, which is unlikely given its current composition. This perspective details the federal programs that are affected by the Hyde Amendment, provides estimates on the share of women insured by Medicaid affected by the law, the impact on their access to abortion services, and the potential effect if the law were to be repealed or codified.
What programs does the Hyde Amendment affect?
Initially, the Hyde Amendment only affected funding for abortions under Medicaid, a state and federal health program for low-income individuals. Because it is reauthorized annually as an attachment to the appropriations bill for HHS, the Hyde Amendment’s reach also includes the Indian Health Service, Medicare, and the Children’s Health Insurance Program. In addition, language similar to that in the Hyde Amendment has been incorporated into a range of other federal programs that provide or pay for health services to women including: the military’s TRICARE program, federal prisons, the Peace Corps, and the Federal Employees Health Benefits Program. The Affordable Care Act (ACA) also included a provision that applied similar abortion coverage limitations to plans that are sold through the Marketplace for women who receive federal income-based subsidies to purchase private health insurance.
Because Medicaid is jointly funded by the federal and state governments, states can choose to pay for abortions under Medicaid in other instances, but must use their own revenues, and not federal funds, to cover the service. Currently, 17 states have a policy directing the use of their own funds to pay for abortions for low-income women insured by Medicaid beyond the Hyde limitations, 12 of which provide coverage as the result of a court order (Figure 1).2 Still, the state Medicaid program in Arizona does not pay for abortions outside of circumstances permitted by Hyde despite court orders directing it to do so. Illinois had also not been complying with their court order to pay for non-Hyde abortions; however, the state enacted a law in September 2017 that expanded Medicaid and state employee insurance coverage to abortion, the first state to do so in decades.
What is the Hyde Amendment’s impact on women on Medicaid?
Medicaid is a significant and growing source of health coverage for low-income women in the nation. Today, Medicaid covers two in ten women of reproductive age (15-49). In 2016, nearly half (48%) of women below the Federal Poverty Level (FPL) were insured by Medicaid (Figure 2).3 The ACA has enabled states to increase eligibility for Medicaid to 138% of the FPL ($20,160 for a family of three in 2016). However, 19 states have not expanded the program. In those states, the median income eligibility limit is just 47% of the FPL, or an annual income of $9,442.30 for a family of three.
Despite the news that unintended pregnancy and abortion rates have fallen in the general population, abortions are becoming increasingly concentrated among poor women and black women. Women of color are more likely than white women to be insured by Medicaid, and have higher rates of unintended pregnancy and abortion.45 In 2014, 75% of abortions were among low-income patients, and 64% were among black or Latina women (Figure 3).6 Young adults and teens, who are less likely to have a steady source of income, make up the majority (72%) of abortion patients.7
Without coverage for abortion under Medicaid, women must pay out-of-pocket for the procedure. Costs vary by location, facility, and gestational age, but on average an abortion costs $485 among women who had out-of-pocket costs, with some paying upwards of $3500.8 Hillary Clinton has argued that the Hyde Amendment creates a barrier for poor and low-income women who have limited means to pay for an abortion on their own, “making it harder for [them] to exercise their full rights.”9 In contrast, Donald Trump committed to “protect taxpayers from having to pay for abortions” in a letter announcing the creation of his “pro-life coalition.”10
What would be the impact on abortion coverage if the Hyde Restrictions were lifted?
As a rider to the annual appropriations bill that Congress must pass in order to fund the operations of federal programs, the Hyde Amendment affects millions of women. If the ban were lifted, it could potentially provide federal support for abortion coverage for the 14.5 million reproductive-age women enrolled in Medicaid, as well as millions of others in similarly restricted federal programs. In particular, it could broaden abortion coverage for 8 million women on Medicaid who live in 34 states and the District of Columbia (Table 1) that currently follow Hyde restrictions, which represents over half (55%) of reproductive-age women enrolled in Medicaid (Figure 4).11
A recent study found that in 2014 52% of abortion patients residing in states that use their own funds to pay for abortion had the procedure covered by Medicaid, compared to 1.5% of patients who live in states adhering to Hyde restrictions. 12 This stark differential strongly suggests that if abortion coverage were expanded under Medicaid, the number of abortions paid for by the program would rise. However, the extent of the change in Medicaid-funded abortions would likely vary considerably by state as it will be affected by a range of factors including state laws, reimbursement rates, and the availability of providers. For example, some states have (or could enact) laws that would prohibit state dollars from being used for abortion in the same way that they ban coverage through private plans and the ACA Marketplace plans. Advocates who support abortion rights are working to counteract these efforts through federal legislation such as the EACH Woman Act, which would prohibit the federal and state governments from restricting insurance coverage for abortion in both public and private health insurance programs. Advocates who oppose abortion are working to make Hyde permanent law and are endorsing the passage of legislation such as the Pain Capable Unborn Child Protection Act, which focuses on restricting abortion procedures later in pregnancy.
The removal of the Hyde Amendment from the appropriations bill would also affect nearly one million women of reproductive age who are currently enrolled in Medicare,13 and many others who receive their care through the Indian Health Service and the Children’s Health Insurance Program. In order for women in the military and the Peace Corps, federal employees, and others who are receiving federally funded health benefits (outside of the HHS Appropriations bill) to obtain abortion coverage, the Hyde-like provisions would either need to be repealed from the authorizing law or lifted from the Congressionally approved appropriations bills that fund those federal programs.
During the 2016 presidential election, the Democratic Platform called for the repeal of the Hyde Amendment for the first time, which the party asserts impedes a woman’s constitutional right to an abortion. While this statement set a significant precedent for a presidential candidate’s public position on the issue, it would need sufficient support among members of Congress to make this policy change. Prior efforts to lift the federal funding ban by abortion rights supporters have not been successful and given the current make-up of the House and Senate, it would still be very challenging to pass. The Republican Party, on the other hand, seeks to codify the Hyde Amendment, thus permanently limiting the use of federal funds for abortion. Anti-abortion advocates efforts to make the Hyde Amendment permanent law have also been blocked by numerous political obstacles, leaving the policy as a temporary law that must be approved annually.
Despite higher shares of women with private insurance and Medicaid resulting from the coverage expansions established by the ACA, coverage for abortion services remains limited. While the removal of the Hyde Amendment could broaden this abortion coverage for millions of poor and low-income women who receive federally subsidized health coverage, the true impact of such a policy change may vary by program and state. As we mark the 40th anniversary of the first time the Hyde Amendment was applied to a federal appropriations bill, the law is still being debated. The election refocused the national dialogue on the Hyde Amendment, once again highlighting the importance of elections in shaping health policy for women at the federal and state level.
|Table 1: Medicaid Coverage of Women, Ages 15-49|
|State||Total||% of Women on Medicaid||Number of Women on Medicaid|
|NOTES: Numbers may not add up due to rounding.
*Arizona follows Hyde restrictions despite court orders to fund all medically necessary abortions.
** South Dakota pays for abortion only in cases of life endangerment.
Blue shading indicates states restricting Medicaid abortion coverage to Hyde Amendment rules.
SOURCE: Kaiser Family Foundation analysis based on the 2017 Current Population Survey, U.S. Census Bureau.
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