July 15, 2022
The Hyde Amendment: An Overview
The Hyde Amendment, named after its original
act, questions may arise regarding whether the Hyde
congressional sponsor, Representative Henry J. Hyde,
Amendment’s reference to “funds appropriated in this Act”
refers to annual funding restrictions that Congress has
includes funds appropriated in other divisions of the larger
regularly included in the annual appropriations acts for the
omnibus. Historically, such omnibus appropriations acts
Departments of Labor, Health and Human Services, and
have included a prefatory provision specifying that “any
Education, and related agencies (“L-HHS-Ed”).
reference to ‘this Act’ contained in any division of this Act
shall be treated as referring only to the provisions of that
The most recently enacted version of the Hyde Amendment
division.” See, e.g., P.L. 117-103, § 3. Where such language
(P.L. 117-103. Div. H, §§ 506–507), applicable for fiscal
is included with a version of the Hyde Amendment in an
year (FY) 2022, prohibits covered funds to be expended for
omnibus appropriations act, it will likely constrain the
any abortion or to provide health benefits coverage that
application of the Hyde Amendment to funds appropriated,
includes abortion. This restriction, however, does not apply
or transferred, in the L-HHS-Ed division of the omnibus.
to abortions of pregnancies that are the result of rape or
incest (“rape or incest exception”), or where a woman
Effect of the Hyde Amendment
would be in danger of death if an abortion is not performed
A significant effect of the Hyde Amendment is that it
(“life-saving exception”). As a statutory provision included
restricts federally funded abortions under major federal
in annual appropriations acts, Congress can modify, and has
health care programs, such as Medicaid, a cooperative
modified, the Hyde Amendment’s scope over the years,
federal-state program that provides medical benefits
both as to the types of abortions and the sources of funding
assistance to low-income individuals, and Medicare, which
subject to this restriction.
provides health coverage not only for certain elderly
individuals, but also certain disabled individuals under 65.
Covered Abortions
Medicaid is covered by the Hyde Amendment because it is
All versions of the Hyde Amendment have included, at a
funded through appropriations made in the annual L-HHS-
minimum, the life-saving exception. The original FY1977
Ed appropriations act. Medicare is covered because it is
version of the Amendment (P.L. 94-439, § 209) included
financed from various trust funds that receive transfers from
only the life-saving exception. The FY1979 version (P.L.
the same appropriations act. The Hyde Amendment also
95-480, § 210) included three exceptions: (1) the life-saving
restricts abortion funding under other health programs
exception; (2) a rape or incest exception, but only if the
funded through the L-HHS-Ed appropriations act, including
rape or incest had been reported promptly to a law
the Indian Health Service (which provides health services to
enforcement agency or public health service; and (3) an
American Indians and Alaska Natives).
exception for instances in which severe and long-lasting
physical health damage to the mother would result if the
Because the Hyde Amendment is a limitation on particular
pregnancy were carried to term, as determined by two
sources of funds, it does not apply to other sources of funds
physicians.
that may be available to a federal program. For example,
Medicaid is jointly funded by the federal and state
Like the original version, between FY1981 and FY1993,
governments. Some states have opted to cover abortions
the Amendment again generally included only the life-
beyond the Hyde restrictions under their Medicaid
saving exception. For FY1994, the rape or incest exception,
programs using exclusively state funds. Similarly, the
without a reporting requirement, was reintroduced to the
Office of Legal Counsel in the Department of Justice in a
Amendment. The scope of abortions subject to the
2021 opinion concluded that the Hyde Amendment applied
Amendment has generally included these two exceptions
to those portions of student aid programs under Title IV of
since FY1994.
the Higher Education Act (HEA) funded through the annual
L-HHS-Ed appropriations act. However, it concluded that
Covered Funds
the Amendment did not limit the use of mandatory
As originally enacted for FY1977, the Hyde Amendment
appropriations for such programs provided in the HEA
applied only to funds appropriated in the same act where
itself. 45 Op. O.L.C.—(Jan. 16, 2021).
the Hyde Amendment is found, i.e., the annual L-HHS-Ed
appropriations act. Beginning in FY1999, the Hyde
Although the Hyde Amendment does not generally apply to
Amendment language has also included coverage of trust
permanent appropriations, programs with such funding may
funds that receive a transfer from the annual L-HHS-Ed
still be subject to a Hyde-like provision that is incorporated
appropriations act.
into such appropriations. For example, the Children’s
Health Insurance Program (CHIP), which generally
Where Congress has enacted an L-HHS-Ed appropriations
provides health coverage to children in families that earn
act as a single division of a larger omnibus appropriations
too much to qualify for Medicaid but not enough to buy
https://crsreports.congress.gov
The Hyde Amendment: An Overview
private insurance, is funded through mandatory
protection concerns under the Fifth Amendment. The Court
appropriations provided in Title XXI of the Social Security
also ruled that the funding restriction did not violate the
Act. CHIP is therefore not covered by the Hyde
First Amendment’s Establishment Clause merely because it
Amendment. However, the CHIP statute includes its own
may coincide with the religious tenets of the Roman
independent limitations on abortion coverage at 42 U.S.C.
Catholic Church.
§ 1397ee(c)(1) and (7).
After 1993, when the rape or incest exception was included
Other Hyde-like Provisions
in the Hyde Amendment, several appellate courts
Although the Hyde Amendment applies only to the Labor-
considered the interplay between this version of the
HHS-Ed appropriations act, similar provisions have been
Amendment and more restrictive state requirements that
regularly included in annual appropriations acts or are
limited abortion coverage to only instances where the
permanently codified. Some examples include:
mother’s life was in danger. These courts uniformly
concluded that the states’ narrower funding restriction
Department of State, Foreign Operations, and Related
impermissibly conflicted with the Medicaid Act’s
Programs Appropriations Act, P.L. 117-103, Div. K,
requirements and enjoined those restrictions. See Planned
Title III (restricting funds for global health programs
Parenthood Affiliates of Michigan v. Engler, 73 F.3d 634,
and the Peace Corps), Title VII, §§ 7018 and 7057;
638 (6th Cir. 1996) (collecting cases).
Financial Services and General Government
According to these courts, the Medicaid Act and its
Appropriations Act, P.L. 117-103, Div. E, §§ 613, 810;
implementing regulations require participating states to
cover certain categories of health services and prohibit
Department of Justice Appropriations Act, P.L. 117-
states from arbitrarily denying or reducing the scope of
103, Div. B, Title II, § 202;
such mandatory, medically necessary services solely
because of the diagnosis, type of illness, or condition of the
10 U.S.C. § 1093 (placing restrictions on funds available recipient. In these courts’ view, abortions fall within several
to the Department of Defense).
mandatory categories of care, including family planning
services. The Hyde Amendment, according to the courts,
For more detailed information on these provisions, see CRS
effectively defined the range of medically necessary
Report RL33467, Abortion: Judicial History and
abortions covered by Medicaid by carving out particular
Legislative Response, by Jon O. Shimabukuro.
abortion services that states are not obligated to cover.
Because the states’ narrower restrictions would deny a
Litigation History
medical service in all cases except those where a patient’s
Upon enactment, the original Hyde Amendment was
life is at risk, the courts reasoned that such restrictions
immediately challenged on the grounds that it violated the
impermissibly discriminated in the coverage of medically
Medicaid Act and the Fifth and First Amendments of the
necessary abortions on the basis of a patient’s medical
Constitution. In Harris v. McRae, 448 U.S. 297(1980), the
condition.
Supreme Court upheld the Hyde Amendment.
Open Questions Related to the Hyde
Regarding the statutory challenge, the Court rejected the
Amendment
plaintiffs’ argument that the Medicaid Act imposed an
Following the Supreme Court’s decision in Dobbs v.
obligation on states to continue funding those medically
Jackson Women’s Health Organization, No. 19-1392 (U.S.
necessary abortions for which federal reimbursements
June 24, 2022), which overruled Roe v. Wade, 410 U.S. 113
became unavailable under the Hyde Amendment. The
(1973), and held that there is no constitutional right to
Medicaid program, according to the Court, “was designed
abortion, many states are expected to enact or begin
as a cooperative program of shared financial responsibility,
enforcing state laws that restrict abortion access. See CRS
not as a device for the Federal Government to compel a
Legal Sidebar LSB10779, State Laws Restricting or
State to provide services that Congress itself is unwilling to
Prohibiting Abortion, by Laura Deal. Many of these laws
fund.”
permit abortions in narrower circumstances than the current
version of the Hyde Amendment, such as by including only
As to the constitutional challenge, the Court held that the
a life-saving exception to the restrictions they impose. If the
Hyde Amendment did not violate the liberty interests
current version of the Hyde Amendment were reenacted, its
protected by the Fifth Amendment’s Due Process Clause
prior litigation history suggests that the interplay between
because the Amendment “places no governmental obstacle
these state laws and the Amendment in the context of the
in the path of a woman who chooses to terminate her
Medicaid program may be relitigated. There may also be
pregnancy.” Rather, the Court reasoned, the Amendment
additional interpretive questions regarding the current Hyde
merely provides unequal subsidization of abortion relative
Amendment’s scope, such as whether its restrictions apply
to other medical services to encourage alternative activity
beyond the payment or coverage of abortion services to, for
deemed by Congress to be in the public interest.
instance, activities like travel that may facilitate abortion
access.
The Court further held that the Hyde Amendment, which
principally impacts the indigent who receive health care
Edward C. Liu, Legislative Attorney
coverage through Medicaid, was not predicated on a
Wen W. Shen, Legislative Attorney
constitutionally suspect classification that raised equal
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The Hyde Amendment: An Overview
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