The Hyde Amendment: An Overview

The Hyde Amendment: An Overview

Updated July 20, 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
certain community health centers that provide primary
enforcement agency or public health service; and (3) an
health services in underserved areas.
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. Some states
have opted to cover abortions beyond the Hyde restrictions
Like the original version, between FY1981 and FY1993,
under their Medicaid programs using exclusively state
the Amendment again generally included only the life-
funds. Similarly, the Office of Legal Counsel in the
saving exception. For FY1994, the rape or incest exception,
Department of Justice has concluded that the Hyde
without a reporting requirement, was reintroduced to the
Amendment applied to those portions of student aid
Amendment. The scope of abortions subject to the
programs under Title IV of the Higher Education Act
Amendment has generally included these two exceptions
(HEA) funded through the annual L-HHS-Ed
since FY1994.
appropriations act. However, it concluded that the
Amendment did not limit the use of mandatory
Covered Funds
appropriations for such programs provided in the HEA
As originally enacted for FY1977, the Hyde Amendment
itself. 45 Op. O.L.C.—(Jan. 16, 2021).
applied only to funds appropriated in the same act where
the Hyde Amendment is found, i.e., the annual L-HHS-Ed
Other Hyde-like Provisions
appropriations act. Beginning in FY1999, the Hyde
Although the Hyde Amendment does not generally apply to
Amendment language has also included coverage of trust
funding provided outside of the L-HHS-Ed appropriations
funds that receive a transfer from the annual L-HHS-Ed
act, programs with such funding may still be subject to
appropriations act.
Hyde-like restrictions on abortion. For example, the Hyde
Amendment has been incorporated by statutory cross-
Where Congress has enacted an L-HHS-Ed appropriations
reference to apply to the Indian Health Service, which
act as a single division of a larger omnibus appropriations
provides health services to American Indians and Alaska
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The Hyde Amendment: An Overview
Natives and is funded through the Department of the
constitutionally suspect classification that raised equal
Interior, Environment, and Related Agencies
protection concerns under the Fifth Amendment. The Court
Appropriations Act. Similarly, the Children’s Health
also ruled that the funding restriction did not violate the
Insurance Program (CHIP), which generally provides health
First Amendment’s Establishment Clause merely because it
coverage to children in families that earn too much to
may coincide with the religious tenets of the Roman
qualify for Medicaid but not enough to buy private
Catholic Church.
insurance, is funded through mandatory appropriations
provided in Title XXI of the Social Security Act. CHIP is
After 1993, when the rape or incest exception was included
therefore not covered by the Hyde Amendment. However,
in the Hyde Amendment, several appellate courts
the CHIP statute includes its own independent limitations
considered the interplay between this version of the
on abortion coverage at 42 U.S.C. § 1397ee(c)(1) and (7).
Amendment and more restrictive state requirements that
limited abortion coverage to only instances where the
Other examples of Hyde-like provisions that Congress has
mother’s life was in danger. These courts uniformly
regularly included in other annual appropriations acts or
concluded that the states’ narrower funding restriction
permanently codified include:
impermissibly conflicted with the Medicaid Act’s

requirements and enjoined those restrictions. See Planned
Department of State, Foreign Operations, and Related
Parenthood Affiliates of Michigan v. Engler, 73 F.3d 634,
Programs Appropriations Act, P.L. 117-103, Div. K,
638 (6th Cir. 1996) (collecting cases).
Title III (restricting funds for global health programs
and the Peace Corps), Title VII, §§ 7018 and 7057;
According to these courts, the Medicaid Act and its

implementing regulations require participating states to
Financial Services and General Government
cover certain categories of health services and prohibit
Appropriations Act, P.L. 117-103, Div. E, §§ 613, 810;
states from arbitrarily denying or reducing the scope of

such mandatory, medically necessary services solely
Department of Justice Appropriations Act, P.L. 117-
because of the diagnosis or condition of the recipient. In
103, Div. B, Title II, § 202;
these courts’ view, abortions fall within several mandatory

categories of care, including family planning services. The
10 U.S.C. § 1093 (placing restrictions on funds available
Hyde Amendment, according to the courts, effectively
to the Department of Defense).
defined the range of medically necessary abortions covered
by Medicaid by carving out particular abortion services that
For more detailed information on these provisions, see CRS
states are not obligated to cover. Because the states’
Report RL33467, Abortion: Judicial History and
narrower restrictions would deny a medical service in all
Legislative Response, by Jon O. Shimabukuro.
cases except those where a patient’s life is at risk, the courts
Litigation History
reasoned that such restrictions impermissibly discriminated
in the coverage of medically necessary abortions on the
Upon enactment, the original Hyde Amendment was
basis of a patient’s medical condition.
immediately challenged on the grounds that it violated the
Medicaid Act and the Fifth and First Amendments of the
Open Questions Related to the Hyde
Constitution. In Harris v. McRae, 448 U.S. 297(1980), the
Amendment
Supreme Court upheld the Hyde Amendment.
Following the Supreme Court’s decision in Dobbs v.
Jackson Women’s Health Organization, No. 19-1392 (U.S.
The Court rejected the plaintiffs’ statutory argument that
June 24, 2022), which overruled Roe v. Wade, 410 U.S. 113
the Medicaid Act imposed an obligation on states to
(1973), and held that there is no constitutional right to
continue funding those medically necessary abortions for
abortion, many states are expected to enact or begin
which federal reimbursements became unavailable under
enforcing state laws that restrict abortion access. See CRS
the Hyde Amendment. The Medicaid program, according to
the Court, “was designed as a cooperative program of
Legal Sidebar LSB10779, State Laws Restricting or
Prohibiting Abortion, by Laura Deal. Many of these laws
shared financial responsibility, not as a device for the
permit abortions in narrower circumstances than the current
Federal Government to compel a State to provide services
version of the Hyde Amendment, such as by including only
that Congress itself is unwilling to fund.”
a life-saving exception to the restrictions they impose. If the
current version of the Hyde Amendment were reenacted, its
As to the constitutional challenge, the Court held that the
prior litigation history suggests that the interplay between
Hyde Amendment did not violate the liberty interests
protected by the Fifth Amendment’s Due Process Clause
these state laws and the Amendment in the context of the
because the Amendment “
Medicaid program may be relitigated. There may also be
places no governmental obstacle
additional interpretive questions regarding the current Hyde
in the path of a woman who chooses to terminate her
Amendment’s scope, such as whether its restrictions apply
pregnancy.” Rather, the Court reasoned, the Amendment
beyond the payment or coverage of abortion services to, for
merely provides unequal subsidization of abortion relative
instance, activities like travel that may facilitate abortion
to other medical services to encourage alternative activity
access.
deemed by Congress to be in the public interest.
Edward C. Liu, Legislative Attorney
The Court further held that the Hyde Amendment, which
Wen W. Shen, Legislative Attorney
principally impacts the indigent who receive health care
coverage through Medicaid, was not predicated on a
IF12167
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The Hyde Amendment: An Overview

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