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The Hyde Amendment Is Not an Excuse to Do Nothing to Protect Abortion Rights

One particularly maddening aspect of our current politics is that Democrats feel beholden to rules that Republicans feel entitled to burn. Democrats creatively interpret rules in ways that inevitably frustrate their ability to wield power, while Republicans creatively use their power to get around the rules. Democrats invent constraints on themselves, ostensibly to restrict Republicans, while these same Republicans long ago decided to use maximal power to achieve their goals.

Nowhere is this asymmetry more evident than in the reactions to the leaked Supreme Court draft overturning Roe v. Wade and Planned Parenthood v. Casey. There are things President Joe Biden could do to counteract the Supreme Court’s decision to force people to carry pregnancies to term against their will. There are things his administration should be doing already in Texas, where constitutional (for the moment) abortion services have been denied to people since September. I’ve outlined some of these executive actions here and elsewhere, but in brief: Abortion services should be provided on federal lands; abortion providers should be deputized by the federal government to protect them from state bounty hunters; people seeking abortion services should be granted safe passage to these facilities, or out of state if need be.

But every time I or anybody else makes arguments for strong executive action to protect people from Republicans, somebody, often a liberal or Democrat, says that the Hyde Amendment prevents the federal government from funding abortions. Anybody who lived through the Trump administration should know that the law rarely outright “prevents” things, and “funding” is a matter of interpretation, but Twitter is awash in so many Hyde takes you’d think it was the 28th Amendment to the Constitution. I have come to believe that, as Voltaire might say, if the Hyde Amendment did not exist, it would be necessary for Democrats to invent it. There are a lot of people invested in the idea that there are secret codes of law that, when you read them under a black light with a Cap’n Crunch Decoder Ring, say “Democrats cannot wield power, ever.”

So let’s talk about the Hyde Amendment and what it says. Because when you really look at it, you’ll see it’s a paper tiger: While it is harrowingly effective at preventing poor and vulnerable people from getting the health care they need, it is easily shredded by a committed executive at the head of a massive administrative state.

The Hyde Amendment was proposed in 1976, three years after the landmark decision in Roe v. Wade, by Illinois Representative Henry Hyde, a white male Republican who didn’t like abortion rights. He proposed a rider to the funding bill for the Department of Health, Education, and Welfare (now called the Department of Health and Human Services) that prohibited federal Medicaid funds from being used to pay for women to get abortions.

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