In the early months of 2022, Democrats in Congress came close to passing an appropriations bill that did not include a provision barring federal funding for abortions — maybe the closest it had ever come in more than 40 years.

But those who wanted the Hyde Amendment included won the battle in the end. Three months later, the U.S. Supreme Court made its decision in Dobbs v. Jackson Women’s Health to allow states to regulate abortion access. That year, the 50-year precedent of a constitutional right to abortion ended, and the 50-year precedent of no federal tax funding to pay for abortions endures.

The Hyde Amendment was first passed Sept. 30, 1976, three years after the Roe decision. The clause — which isn’t a constitutional amendment — is named for Republican U.S. Rep. Henry Hyde of Illinois. It marked one of the first legislative victories for anti-abortion groups after Roe v. Wade guaranteed abortion access up to fetal viability. 

In the decades since, it has been added to every appropriations bill passed by Congress, restricting federal Medicaid dollars from paying for abortion care except in limited cases of rape, incest and to prevent a pregnant patient’s death. The result has left countless people without a way to pay for the procedure, which advocates for abortion access say causes more abortions to happen later in pregnancy and unnecessarily endangers patients’ health.

Abortion opponents say the Hyde Amendment has prevented 2.7 million abortions. An estimated 300,000 abortions per year were covered by federal dollars prior to the Hyde Amendment. While there aren’t any major organizations that have published how much the federal government has saved by not funding abortion care, advocates say it costs the government more not to fund it because of the extra costs added to medical care and public assistance programs.

As more polls and strategists indicate Democrats could take over congressional majorities in the U.S. House of Representatives and the U.S. Senate in January, some anti-abortion advocates fear such a change could be the most serious threat to Hyde’s future since the party nearly repealed the amendment in 2022. 

“If there becomes a pro-abortion majority in Congress, then Hyde is going to be one of the first things to go, probably, especially because it’s been in the spotlight more recently,” said Gavin Oxley, spokesperson for Americans United for Life, a national anti-abortion organization.

Advocates from each side of the issue have pushed for Congress to either codify Hyde into law or codify its repeal, but neither side has been successful. Because of filibuster rules that are usually used in the U.S. Senate on controversial pieces of legislation, legislation would likely need 60 votes to pass, a tall order in a highly polarized environment.

Oxley said anti-abortion advocates aren’t worried just about Democrats, though. During negotiations over legislation that would have extended subsidies for premiums under the Affordable Care Act, President Donald Trump told congressional Republicans in January that they needed to be “a little flexible” on including the Hyde Amendment. The bill never came to fruition and the subsidies expired, but the incident worried anti-abortion groups such as Oxley’s.

“If we get a pro-abortion majority (in Congress), then I would be concerned,” Oxley said. “There are some Republicans who may not be as committed to protecting Hyde.”

Anti-abortion groups tout polls showing strong support for keeping federal dollars from funding abortion care, but few nonpartisan polls have been conducted on the issue, and no major nonpartisan polls have surfaced in the years since 2022, when 13 states implemented near-total abortion bans. A 2016 Politico poll conducted by the Harvard T.H. Chan School of Public Health found 58% of likely voters opposed using Medicaid to fund abortions. 

When other polls commissioned by pro-abortion rights organizations have framed the question with language specific to how Hyde works, which is that a pregnant patient covered by Medicaid can have pregnancy care and childbirth covered but not the cost of an abortion, support for repealing the Hyde amendment goes up. A 2015 poll found that 62% of voters said Medicaid should cover abortion services.

Effects extend beyond abortion procedures 

Amanda Jean Stevenson, associate professor of sociology and director of population at the University of Colorado, Boulder, said many scholars have tracked the fallout of the Hyde Amendment since its inception, but it’s difficult to trace pregnancy complications or deaths back to Hyde.

Many abortion rights advocates point to the case of Rosie Jimenez, a 27-year-old Texas woman who was denied care at a clinic in 1977 because of her Medicaid status and instead sought care from an unlicensed midwife. She died from an infection after spending a week in intensive care. Her daughter, Monique, was 4 years old at the time and now advocates for policy change.

“It’s very easy for some people to say (Rosie Jimenez’s death) was caused by the Hyde Amendment,” Stevenson said. Had Medicaid benefits covered the abortion, “she probably would’ve had that option for safer care.”

Jimenez’s case happened a few months after Hyde was first included in an appropriations bill, but it didn’t change its inclusion in future bills. Many scholars have documented the effects of low-income patients being denied coverage for abortions, but it hasn’t resulted in policy change, Stevenson said.

“People set out to find out about the impact of it, they find that it has a big adverse impact, and that doesn’t matter. It doesn’t change the policy or people’s opinion of it, it doesn’t change anything, really,” she said. “Evidence continues to be generated, and it continues to be ignored.”

Marlene Gerber Fried, co-founder and the former president of the National Network of Abortion Funds, said it would be nice to think that a change in Congress would bring about the end of Hyde, but she’s heard optimism of that kind before. When former Democratic President Bill Clinton took office in 1993, abortion-rights advocates also expected change.

In the years since, Fried said, the Hyde Amendment has been a “fault line” in the abortion rights space, even as some abortion rights advocates think they are gaining ground with public opinion.

“It’s not that they were against public funding, they just thought it wasn’t going to get to a win,” Fried said.

Researchers say Hyde doesn’t just affect the direct costs of abortion procedures. River Robbins, a doctoral candidate in applied medical anthropology and adjunct instructor at the University of South Florida, said his dissertation research has shown not having access to federal funding affects other services available at individual clinics. Independent clinics provide 58% of all abortions nationwide, according to data from the Abortion Care Network.

Many clinics serve low-income communities and people of color, including patients who need interpreters or other language or disability services. While hospital networks have access to funding that helps them provide those services, such money is not available to clinics that primarily exist to provide abortion care. 

Hyde won’t be the end of funding challenges, advocates say 

Now that access to abortion is extremely limited in more than a dozen states, even fewer people can rely on Medicaid to cover abortion costs. Those who can’t access abortion care at home often must travel to another state, where their local Medicaid program dollars won’t apply. That has put extra burdens on local and regional abortion funds and other philanthropic organizations to fill the funding gaps. Sometimes health clinics just take a loss rather than denying someone an abortion.

“We know that our providers don’t turn folks away, and sometimes that comes at great cost to their clinics and their ability to operate,” said Kelsey Ryland, policy counsel for the National Abortion Federation.

Chelsea Souder, co-owner of Hope Clinic in Illinois, said she hopes the Hyde Amendment will be permanently repealed in the near future, but that even if it is, there will still be many gaps in funding for abortion care. 

Even in states with access, including some of the most accessible states in the country like Illinois, state Medicaid coverage is often inadequate to cover costs by itself, especially for those who need care later in pregnancy. Souder said 85% of her clinic’s revenue does not come from patients who pay out of pocket or with Medicaid — it comes from abortion funds or donors, which she said is not sustainable.

“Making abortion actually accessible and affordable is where the focus has to be,” Souder said.

According to health policy institute KFF, 21 states allow their state Medicaid program to cover abortion costs, and some have expanded those policies since Roe fell. But reimbursement rates for providers continue to be low, regardless of where the clinic is located, and they are exceedingly low for abortions later in a pregnancy.

Dr. Diane Horvath, chief medical officer at Partners in Abortion Care in Maryland, said the clinic ran an experiment of accepting all state Medicaid patients for a year and a half, starting in 2024. Despite strong state support for abortion access at any stage in pregnancy, the low reimbursement rates for care beyond the second trimester resulted in a loss to the clinic of $1.2 million during that time. That includes cost increases for supplies and labor, since the clinic hasn’t increased prices for patients.

“For most of these patients, we lose at least $4,000 a patient,” Horvath said. “A hospital might be able to recover more and spread loss over different departments, but I don’t have another clinic, I don’t have another place I can draw funds from.”

Stateline reporter Kelcie Moseley-Morris can be reached at kmoseley@stateline.org.

As physicians continue to navigate care for patients with complex pregnancies in states with abortion bans, a group of maternal-fetal medicine specialists has developed new guidelines to help providers in those states navigate legal risks for themselves and medical challenges for their high-risk patients. 

Maternal-fetal medicine specialists handle some of the most high-risk pregnancies, including patients with high blood pressure, diabetes, cancer, fetal anomalies or other complications. In states with abortion bans, those conditions can become even more dangerous for a patient if a doctor is unsure when they can terminate a pregnancy without potentially jeopardizing their medical license or facing criminal penalties that can include jail time.

“Individuals at high risk for pregnancy-associated morbidity and mortality have unique needs for reproductive health services, including abortion care,” the Society for Maternal-Fetal Medicine wrote in a special statement published this month. 

Ten states plus the District of Columbia allow abortion access without gestational restrictions, while 13 states ban abortion at all stages. Following the implementation of those bans since 2022, many hospital systems and clinics have offered different interpretations of how to avoid legal jeopardy under the bans and what qualifies under exceptions, leading to confusion and delays in care that have been documented in many states nationwide. 

To mitigate those problems, the guidelines encourage providers and administrators to set up referral networks across state lines, work to find agreement on what is permissible under state law and counsel patients on their options even in states with restrictions to deliver the highest-quality care. 

“We are uniquely positioned as high-risk pregnancy experts to make that case to our leaders,” said Dr. Justin Lappen, a maternal-fetal medicine specialist in Ohio who chaired the committee that developed the statement. “And a statement like this would give providers and our colleagues some confidence to be leaders in this space.”

The Society for Maternal-Fetal Medicine and the American College of Obstetricians and Gynecologists agree that access to abortion and counseling about options is the standard of care for obstetric patients, but there are conscientious exceptions for doctors who do not want to provide abortion care. 

Some doctors choose to affiliate with the American Association of Pro-Life Obstetricians and Gynecologists, and offer their own guidance about approaching complications, which still includes termination in some situations. The group is officially a partner of the Alliance Defending Freedom and several anti-abortion groups, as well as the Alliance for Hippocratic Medicine, which is the group that sued to revoke federal approval of one of two drugs used to terminate a pregnancy or treat miscarriages.

A representative from the American Association of Pro-Life Obstetricians and Gynecologists could not be reached for comment before publication.

Worse outcomes for high-risk patients

Nationwide, women in states with bans have reported difficulties receiving care when experiencing pregnancy complications. 

One of the most common emergencies occurs when a patient’s amniotic sac breaks before a fetus is viable. If left untreated, it can quickly turn into a deadly infection. The statement noted that after Texas passed Senate Bill 8 in 2021 banning abortion at an early gestation, waiting to treat patients in those medical situations dramatically increased negative health outcomes. According to research cited in the statement, complications such as blood transfusion, intensive care admission and serious infection resulted in 57% of cases, versus comparable research in states without restrictions that showed a complication rate of 33%. In all of the cases, the fetus did not survive.

Federal judge’s order allowing an Idaho doctor to perform certain abortions is put on hold

The guidance states hospitals and clinics should expand their abortion care to the extent allowed by law, and recognize maternal-fetal medicine specialists as sources of best care practices. It also instructs providers to work with legal teams in their networks to understand the federal Emergency Medical Treatment and Labor Act and when it may require abortion care, as well as encouraging training for basic termination procedures. 

Dr. David Hackney, a maternal-fetal medicine specialist in Ohio who published a book in August about navigating high-risk pregnancy care under Dobbs, said the statement will be useful for many providers nationwide.

“We don’t always focus enough on hospital administration, care and systems, but there’s always so much that can be done in those regions that is almost — if not more — important,” Hackney said.

After the Dobbs decision in June 2022, Hackney said, many individual healthcare systems didn’t know what to do when faced with certain situations where termination might be needed, and set a patchwork of policies that increased confusion for providers. But in the years since, providers and administrators in some healthcare systems have come together to reach informal agreements about what they are comfortable doing within the confines of an abortion ban.

“You have some defense if everyone has agreed to do the same thing,” he said.

When laws are unclear, he said, people will most often lean toward over-complying, which can create worse outcomes for the patient. 

“Even outside of abortion, medical care tends to work better when you have consensus and you have common best practices, even if it’s on a regional level,” he said. 

‘When they need me, they call me’

Many specialists’ cases aren’t emergencies, but rather pregnancies that put a patient at risk because of underlying health conditions, whether they existed before a pregnancy or developed during pregnancy, or late-term diagnoses of fetal anomalies that upend a wanted pregnancy. 

In those cases, the maternal-fetal organization says, patients should be told that their options include termination, even if that can’t happen in their home state.

Dr. Leilah Zahedi-Spung, a maternal-fetal medicine specialist who co-authored the special statement, moved to Colorado from Tennessee in 2023 after that state enacted a near-total abortion ban.

She said she saw firsthand how difficult it was in Tennessee to try to take care of patients without clarity around the law and without leadership that was willing or able to try to provide support. One goal of the statement is to help provide that kind of support to physicians, she said.

“We know you’re in a tough situation, we’re not blind to that. No one is blaming you for what you can and cannot do,” Zahedi-Spung said.

The society’s statement suggests that providers establish relationships with leaders within their clinical settings as well as in the community, region and state to agree on legal interpretations of abortion restrictions, particularly those who might hold leadership positions themselves. It also encourages doctors to establish referral networks locally and between states to ensure patient access.

“I have lots of people from Texas who have my phone number, and when they need me, they call me,” Zahedi-Spung said. “That is a system that works. And then those patients go back to safe providers who can take care of them.”  

Stateline reporter Kelcie Moseley-Morris can be reached at kmoseley@stateline.org.