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Restricting Spending With the Hyde Amendment

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Most members of Congress seem to want to be known for the way they spend the taxpayer’s money.  They routinely issue press releases claiming credit for obtaining funding for their favorite projects.  Pell grants (named after Senator Claiborne Pell (D-RI)) fund undergraduate students with financial needs.  FEMA spends money for disaster relief under the Stafford Act (named after Senator Robert Stafford (R-VT)).  Countless federal office buildings and roads are named after Congressmen and Senators.  But there is at least one federal law that is named after a very different kind of Congressman — one who wanted to stop spending for one particularly evil purpose.

In 1976, in his first term in Congress, a World War II Navy veteran from Chicago named Henry Hyde (R-IL) sponsored a restriction on federal spending that would long outlive him.  The idea was to stop federal spending on abortion.  Known as the Hyde Amendment, this restriction was first enacted on September 30, 1976, as a rider to the appropriations bill.  In its original form, it only had an exception for the life of the mother:  

None of the funds contained in this Act shall be used to perform abortions except where the life of the mother would be endangered if the fetus were carried to term.  [Pub. L. 94-439, section 209 (1976).] 

Its main function is to prevent the use of federal Medicaid dollars to pay for abortions but also applies to certain other health programs.  “Hyde-like restrictions have also been enacted into permanent law in various statutes that apply to TRICARE (the military health care program), Veterans Affairs, CHIP, Medicare, and more.”  The Hyde Amendment has been included in some appropriations bills in some form every year since.  In all likelihood, it was Hyde’s three decades of leading pro-life forces in the House of Representatives that caused George W. Bush to award him the Presidential Medal of Freedom, which he received in his hospital room on November 5, 2007, at the age of 83, only three weeks before his death.

The idea for the Amendment was brought to Hyde’s attention through the work of three young conservative leaders.  The strategy was devised by Robert “Bob” Marshall who had seen documents obtained under the Freedom of Information Act by John MacKey (of the Ad Hoc Committee in Defense of Life) showing that the Department of Health, Education and Welfare (“HEW”) had funded about 280,000 abortions.  Marshall went to Congressman Bob Bauman(R-MD) to locate a House Member who could offer an Amendment to the HEW Appropriations bill to ban funding.  Bauman found a freshman Republican — Henry Hyde — who agreed to take on the cause.  Later, working as a Legislative Assistant to Congressman Bob Dornan, Marshall continued to draft Hyde-type restrictions for other federal spending programs, and then lead pro-life and pro-family forces during 13 terms in the Virginia House of Delegates.

In a speech on the House floor in support of his amendment, Hyde declared: 

we who seek to protect that most defenseless and innocent of human lives, the unborn — seek to inhibit the use of Federal funds to pay for and thus encourage abortion….  An innocent, defenseless human life, in a caring and humane society deserves better than to be flushed down a toilet or burned in an incinerator.  The promise of America is that life is not just for the privileged, the planned, or the perfect. 

Pro-life laws never go unchallenged, and so it was with the Hyde Amendment.  Medicaid recipients and even a component of the United Methodist Church filed suit.  A district court judge in New York ruled that the Hyde Amendment violated the Fifth Amendment’s Due Process Clause as well as the First Amendment’s Establishment Clause.

Fortunately, the U.S. Supreme Court disagreed, and in 1980 the Hyde Amendment was upheld in Harris v. McRae, 448 U.S. 297 (1980) on a 5-to-4 vote, with an opinion written by Justice Potter Stewart.  Predictably supporting government-funded abortion were Justices Brennan, Marshall, Stevens, and, of course, Blackmun, who seven years before had written the court’s opinion in Roe v. Wade, 432 U.S. 113 (1973).  The High Court rejected the argument that the Hyde Amendment constituted an unconstitutional establishment of religion because its pro-life position was consistent with Roman Catholic doctrine.  (If the Constitution struck down all laws with a religious foundation, few good laws would remain.)

Has the Hyde Amendment worked?  A study by Michael J. New, Ph.D. estimated the number of abortions that have been avoided by the Hyde Amendment removing federal funding.  The number is staggering:

From its first enactment in 1976 until 2020, New finds that the Hyde Amendment saved 2,444,181 lives.  From that time forward, the law saved 60,588 lives in 2021; 47,069 lives in 2022, and 15,130 lives so far in 2023.  Overall, the Hyde Amendment is responsible for the lives of 2,566,968 of our fellow Americans.  It is also responsible for the lives of their children and grandchildren.  Few acts of Congress can claim such fruit.

As a historical footnote, when a Senator, Joe Biden always supported the Hyde Amendment, only reversing course in June 2019, on the Democratic campaign trail.  Biden worked to eliminate the Hyde Amendment in 2021, causing 200 House Republicans to sign a letter pledging to “vote against any government funding bill that eliminates or weakens the Hyde Amendment or other current-law, pro-life appropriations provisions.”  At least on the home front, the Hyde amendment continues to be enshrined in appropriations bills, continuing to block federal spending to take innocent life, to this day.

What lesson can be learned from The Hyde Amendment?  Following its pattern, Congress can add language to any appropriations bills to state “none of the funds appropriated hereunder may be used….” and then identify a program to defund.  How about, for starters, providing that no funds may be used for:

  • chemical or surgical castration of minors;
  • teaching Critical Race Theory; and
  • including pornographic books in school libraries.

America needs more men and women with the conscience and tenacity of Henry Hyde, not just on abortion, but also the other great moral struggles of our time.  The tool Hyde developed can be used to keep American taxpayer dollars from paying for the wasteful, the immoral, and the inhumane.

Click here to go to the IN FOCUS – Defund The Federal Beast page.

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