Abortion remains one of the key unresolved issues in the ongoing health overhaul debate. Those on both sides of the abortion debate say what they want in the health bill is to retain the status quo. And the status quo they point to is the Hyde amendment, the ban on federal funding of abortion first passed in 1976.
But what many people don't realize is that the Hyde amendment — named after its original sponsor, the late Illinois Republican congressman and anti-abortion icon Henry Hyde — has changed many times over the years.
"Today's Hyde language, which has been in every annual Labor-HHS [Health and Human Services] appropriations bill since 1976, specifically prohibits federal dollars from being used to pay for abortions except if the pregnancy was the result of rape, incest or the life of the mother was in danger," said Sen. Orrin Hatch (R-UT) on the Senate floor.
That's true. But it hasn't always said that.
"When the Hyde amendment was first passed, in 1976, there were no exceptions. It was just a straight-out ban," said Laurie Rubiner, vice president for public policy at Planned Parenthood.
That's true, too.
In fact, the language of the original Hyde amendment, although always associated with Hyde, wasn't actually written by Hyde. It was written by Rep. Silvio Conte (R-MA) to settle a months-long standoff between House and Senate negotiators that held up the spending bill for the departments of Labor and Health and Human Services in 1976. It was Conte who drafted the then-compromise language allowing an exception to the ban "where the life of the mother would be endangered if the fetus were carried to term."
And the ban didn't actually take effect until 1980, when the Supreme Court ruled that such a ban was constitutional. From 1973, when abortion first became legal, until 1980, when the Hyde amendment first took effect, the joint federal-state Medicaid program was paying for roughly 300,000 abortions annually.
One of the quirks of the Hyde amendment is that it is a "rider" to an annual appropriations bill, which means it is not permanent law, but must be renewed by Congress each year. So each year, there is the potential to change the language or drop it altogether.
There have been only sporadic efforts to drop it, but the House and Senate did battle repeatedly over the specific language of the Hyde amendment in the late 1970s and early 1980s. And meanwhile, Hyde-type funding bans were extended to other annual spending bills as well. Eventually, federal abortion funding would be banned in federal worker health plans, women in federal prisons, women in the military, peace corps volunteers and international family planning programs that use non-U.S. funds to perform or advocate for abortion.
"Abortion was a constant and recurring battle in the Appropriations Committee both in terms of domestic funding and international affairs," said former Rep. Vin Weber, a Minnesota Republican who was a member of the House Appropriations Committee in the 1980s and early 1990s. "And it went back and forth depending on whether or not you had Democrats or Republicans in power in the White House. But yes, abortion policy basically evolved in sort of a back-and-forth way over a period of decades."
Whether to allow rape and incest as exceptions to the funding ban is one example of how the Hyde language has changed over the years.
By the late 1970s, said Rubiner, Congress "added exceptions for rape, incest, to save the life of the mother, and originally [included] serious health — when a woman had a very serious health condition. Then they took the serious health condition away."
By 1981, all the exceptions were gone beyond "life of the mother." The language would remain that way until 1989, when the Supreme Court appeared ready to overturn abortion rights entirely in its Webster v. Reproductive Health Services of Missouri decision. That energized abortion-rights forces, who managed to get rape and incest exceptions back into the Labor-HHS appropriation for the first time in more than a decade.
But the exceptions would not become law that year: President George H.W. Bush vetoed the bill, and the House override vote failed.
Ironically, it was Hyde himself who would put the rape and incest exceptions back, in 1993. That was the year his amendment came the closest to disappearing entirely.
With newly elected abortion-rights supporter Bill Clinton in the White House, and large Democratic majorities in the House and Senate, the Labor-HHS bill came to the House floor without the Hyde amendment in it for the first time since 1975.
Hyde, however, found a 1908 precedent to allow him to offer his amendment, and enough anti-abortion Democrats to get it passed. He did, however, include the rape and incest exceptions he'd fought to keep out for the previous two decades, acknowledging that, "I didn't think the votes were there anymore for a straight ban on abortion funding."
Two years later, even with Clinton still in office, Republicans took over Congress, and they soon forced the president to swallow new abortion restrictions, precisely because they were part of bigger spending bills the president felt he couldn't veto.
Planned Parenthood's Rubiner says that's just one more problem with abortion always being part of annual spending bills. "Sometimes, either on the good or bad side, presidents are forced to sign either one that is more or less restrictive, because they need to get these departments funded; because they've got everything else waiting to get that money."
Not having to fight the battle every year is a key reason abortion opponents are so eager to get the Hyde restrictions written into the health overhaul as permanent law. And why abortion rights forces are so eager to prevent that from happening.