Is the Hyde Amendment ‘Discriminatory’ and ‘Racist?’

COMMENTARY: The congressional provision is a civil rights issue — but not in the way its opponents claim.

The 2020 March for Life in Washington, DC.
The 2020 March for Life in Washington, DC. (photo: Peter Zelasko / CNA/EWTN News)

A House appropriations subcommittee held hearings Dec. 8 to eliminate the “’discriminatory and racist Hyde Amendment.’” The hearing was not so much something that was expected to happen in the lame duck Congress as much as a preview of the possible agenda of the 117th Congress that convenes in January.

The Hyde Amendment is a provision that has been in U.S. law since 1976, banning the use of taxpayer money to fund Medicaid abortions, named after the late Illinois Rep. Henry Hyde, its original author. Because it is part of appropriations bills and not a fixed provision of statutory law, it has to be renewed every time new budget bills are passed.

Speaker of the House Nancy Pelosi has vowed to kill the Hyde Amendment in the next Congress. President-elect Joe Biden, who used to support the Hyde Amendment, “evolved” during the presidential campaign to opposing it. Whether these two “Catholic” politicians succeed may depend on the outcome of January’s Georgia Senate runoffs, which will determine party control of the U.S. Senate.

I want to focus on the “discrimination” and “racism” tropes behind the anti-Hyde push.



“Discrimination” has always been part of the pro-abortion crowd’s shtick against the Hyde Amendment. The argument is one with economics and class: If rich women can afford abortions, poor women should have them subsidized or their “rights” are impaired.

This claim has always been built on a logical fallacy and an unspoken assumption. 

The existence of abortion as a “right” (dato non concesso) entails no obligation to subsidize it. There is a right to a free press, but not to free newspapers: Congress has no duty to buy you a Register subscription. If you have any doubts ask the typical pro-abortionist to agree that, given the Second Amendment’s guarantee of a right to keep and bear arms (a right on a sounder constitutional footing than Roe v. Wade), she would support the government giving poor people AK-47s. Rich people, after all, can buy all kinds of weapons and, “since the poor will get them anyway,” why not have a “guns for the poor” program to keep the indigent from having to obtain illegal, back-alley handguns?

The example shows there is no “right” or requirement in “justice” to taxpayer-funded abortions. Some might want that as a matter of public policy, but at least be honest about the status of the demand and not engage in “rights” inflation.

The unspoken assumption is just as important. Behind the anti-Hyde push is an effort to normalize abortion.  Abortionists have always argued that abortion is simply a “medical procedure,” no different than an appendectomy or a tooth extraction. 

The Hyde Amendment is a symbolic refutation of that fiction. It was enacted in 1976 because United States citizens were then and now profoundly divided over abortion. The difference is that, back then, the Democratic Party did not pretend that was not true. The proof is that it was the very Democratic House of Representatives of the 94th Congress that repeatedly held up the entire appropriations bill for the Departments of Labor and Health, Education and Welfare against strong Senate resistance, until the Hyde Amendment was included.

The Hyde Amendment was a compromise. In the legal vacuum created by Roe, pro-abortionists tried to force the federal courts to order Medicaid funding for abortion and were winning in the lower courts. The House recognized that while Roe had legalized abortion, many U.S. citizens regarded abortion as killing and had conscientious objections about being complicit as taxpayers in killing. Hyde was a compromise that recognized conscience rights: the “private decision” of abortion did not demand public funding.



I stress the compromise nature of the Hyde Amendment to turn to the other shibboleth being thrown up against it: “racism.” But I’m not going to go down the usual (true) avenues to refute that claim, like “abortion actually kills more minority children before birth proportionally than whites” or “in some minority neighborhoods, abortion rates have sometimes outstripped birth rates.” I won’t get into the racist assumptions of abortionists like Margaret Sanger and her “Negro Project,” or Ruth Bader Ginsburg and her defense of Roe in view of “populations that we don’t want to have too many of.” I’ll go back 170 years.

Slavery roiled U.S. politics in the first half of the 19th century. Americans and their government repeatedly kicked that can down the road by refusing directly to confront slavery. Slavery was “over there” — down South — not in my neighborhood. It was somebody else’s problem. I might be “personally opposed” but it didn’t touch me.

Until 1850. As part of the “Compromise of 1850,” Congress — driven by Southern Democrats — enacted the Fugitive Slave Act (FSA). The FSA demanded that the power of the federal government all across the United States swing in behind Southerners wanting to recover their “property” – runaway slaves headed North or to Canada and freedom. 

Up until 1850, Americans who opposed slavery but didn’t make a “big deal” of it could pretend their hands were clean. After the FSA, slavery involved everybody. It was a federal duty to catch slaves. Your tax dollars went to fund sheriffs and marshals capturing slaves. 

As with the opponents of Hyde, there could be no room for conscience. The default government view was to back Southerners asserting their “rights” to recoup their “property.” 

We know how it ended. Within a year, Harriet Beecher Stowe wrote Uncle Tom’s Cabin. The Supreme Court’s “consensus” that slaves were just property was rightly rebuffed. Within a decade Americans — forced to act against their consciences because politicians ignored moral concerns — were in a Civil War (which had its rehearsal in the mini-Civil War called Bleeding Kansas).

The Hyde Amendment is a civil rights issue — but not in the way its opponents claim.