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.
The amendment passed both houses of Congress, and has been a feature of every budget bill since. The amendment and its modern versions prevent people enrolled in Medicaid or other government-run programs from using those insurance dollars for abortion procedures, except in the cases of rape or incest, or in cases where the life of the mother is at risk. Hyde Amendment–esque language has since been inserted into a number of health care bills, including the Affordable Care Act.
That’s it, that’s the whole thing.
This is not to say the Hyde Amendment isn’t a smoldering hunk of misogynist garbage that restricts access to abortion for millions of mostly poor women (often with the complicity of the Democratic Party, which is ostensibly elected to protect impoverished people). But, this boogey-man that Democrats argue constrains the commander in chief from providing health care to US citizens is not and has never been some insurmountable prohibition on federal government action.
The idea that the Hyde Amendment restricts all federal action for abortion services is a clear misreading of the amendment. The Hyde Amendment does not, for instance, prevent the government from allowing people in federal prisons to seek abortion services. It does not prevent people being held in immigration custody from being allowed to seek abortion services. And the astute reader will notice that exceptions in the case of rape and incest are written right into the regulation. It is simply inaccurate to say that the amendment, in its current form, prevents the federal government from doing anything that could lead to an abortion. The Hyde Amendment is about insurance coverage.
Those are just the facts. What one should do with the knowledge of those facts is open for interpretation. What one should do with knowledge of those facts while in charge of the executive branch of government is still another thing. I will stipulate that everything I am about to say will be disputed by Republicans. If that matters to you, I do not know how to help you. I do not allow my thinking to be cabled within the confines of “what Republicans agree with” because my desire to live in a pluralistic society built on justice and equality outweighs my desire to be liked by The New York Times. But in my opinion, this now-boilerplate budget amendment cannot prevent the might of the executive office from fighting for women’s rights. Here are four obvious workarounds.
- Make everything free: As I read the Hyde Amendment, it does not prevent the federal government from providing space for family planning “consultations” given by doctors who are leasing the space out of their own pockets. It does not prevent private citizens from funding or reimbursing those doctors for their “consultation” services through private means. Because medical privileges are generally governed by state law, not federal law, it might require different executive actions to allow doctors to perform actual medical procedures in those leased federal buildings, but that has nothing to do with the Hyde Amendment. Moreover, the amendment would not prevent these privately funded doctors from providing “vacations” for patients to states that do allow the necessary medical procedures to be performed. I’d chip in money to help every expectant mother visit New York until fetal viability, just because it’s so nice here.
- Make the military do it: For better or worse Biden’s power as commander in chief is at its apex. The Hyde Amendment is not what prevents military doctors, or doctors deputized into military service, from performing abortion services. Instead, there are a number of other funding restrictions, passed annually as part of the defense budget, as well as some restrictions made up by President Ronald Reagan and carried forward, that make getting an abortion while an active duty member of the military very hard. It’s even hard for service members to use their own money to seek legal abortion services from nonmilitary doctors. However, Biden is the commander in chief. He should have already been using his power to make abortions easier to obtain in the military, and must do so now. If the president begins to order military doctors to provide health care, there is little that funding riders could do to stop him. If the president orders the military to protect, on their bases, abortion providers giving out services for free, or to provide safe passage to women seeking abortions in other states, there is nothing congressional funders could do to stop him.
- Repeal the Hyde Amendment: Republicans would challenge these actions, and their enforcement goons on the Supreme Court who are eager to force people to carry pregnancies to term would surely back them up. But, as I keep saying, Hyde is merely a budgetary amendment. Biden submitted a 2022 budget that didn’t include the Hyde Amendment, but caved. The 2023 budget proposal also doesn’t have a Hyde Amendment attached. If Biden, a lifelong supporter of the Hyde Amendment until he ran for president a third time, thinks the Hyde Amendment is so powerful that it constrains even basic executive or military actions, then maybe he could not fold like a chair when it comes up next time around? Biden could act now, get challenged in court, and basically have those challenges rendered moot by repealing the thing.
- Ignore the Hyde Amendment: I have, in good faith, offered credible reasons for why the Hyde Amendment shouldn’t apply to a number of executive actions to provide abortion services so long as a Democrat is in the White House. However, another entirely rational play is simply to ignore the amendment. It’s what Republicans would do. Indeed, the last time a Republican president couldn’t get money from Congress to do something Congress explicitly would not fund, he just declared a national emergency and stole the money from the military budget. There’s no reason Biden couldn’t do that: “The Supreme Court’s errant ruling has created a national emergency and humanitarian crisis. Pregnant people will not be turned into mere incubators on my watch. I hereby create a national guard of doctors, and will deploy them into the various states to provide health care.”
The point of all of these suggestions is that Biden and the Democrats should use power maximally while they have it to prevent the atrocity of people being forced to give birth against their will. The argument that executive inaction is not only justified but required by a 1976 budget rider is intellectually dishonest, and literal evidence that one doesn’t perceive forced birth as a fundamentally illegitimate use of state power.
There is no law, yet, that prevents the federal government from helping rape survivors. There is no law, yet, that requires the federal government to throw up its hands every time it hits the borders of Texas.
There will be laws to do both of those things should Republicans take back Congress and the White House, because Republicans use power when they have it. Maybe Democrats should take a page out of the GOP playbook and try out the whole “using power” thing, before it’s too late for women, the LGBTQ community, and democracy.