EXECUTIVE SUMMARY:  Many members of Congress, and the President, have suggested that the Hyde Amendment will prevent federal government funding of abortion under H.R. 3200.  This claim is entirely erroneous.  Under H.R. 3200, the new federal insurance program (the "public option") will pay for elective abortion with federal government funds, and public funds will also directly subsidize private insurance plans that cover all abortions.  However, as review of the bill language clearly demonstrates, and as the nonpartisan Congressional Research Service has confirmed in two recent memoranda cited and linked below, neither program requires any future appropriations through the annual Health and Human Services appropriations bill. 

Since the Hyde Amendment applies only to funds appropriated through the annual HHS appropriations bill, the Hyde Amendment will not apply to any of the funds used to establish or operate either the "public option" or the premium-subsidy program created by H.R. 3200.  Members of Congress who assert that the Hyde Amendment would prevent federal government funding of abortions under H.R. 3200 are misleading their constituents, in some cases perhaps inadvertently and in other cases perhaps by design.

It has been well established elsewhere that H.R. 3200, particularly as revised by the "Capps Amendment" (or Capps-Waxman Amendment) that was adopted in the House Energy and Commerce Committee on July 30, 2009, would (1) authorize the Secretary of Health and Human Services (HHS) to pay for elective abortions under the "public plan," and (2) allow the "affordability credits" to subsidize both the public plan and private insurance plans that cover all abortions.  See, for example, the August 21, 2009 FactCheck.org analysis "Abortion:  Which Side is Fabricating," and the August 13, 2009 NRLC factsheet "What Do the 'Health Care Reform' Bills Backed by President Obama Have to Do With Abortion?"   The sole purpose of this memorandum is to correct the erroneous assertions that the Hyde Amendment would somehow prevent those results.

THE SCOPE OF THE HYDE AMENDMENT

Some of those who recently have asserted that the Hyde Amendment would apply to the proposed new programs may have believed, wrongly, that the Hyde Amendment is a government-wide law.  In reality, the Hyde Amendment is a limitation that is attached annually to the appropriations bill that includes funding for the Department of Health and Human Services (DHHS), and it applies only to the funds contained in that bill.   (Like the annual appropriations bill itself, the Hyde Amendment expires every September 30, at the end of every federal fiscal year.  The Hyde Amendment will remain in effect only for as long as the Congress and the President re-enact it for each new federal fiscal year.)

Others apparently have assumed that the public option and the premium-subsidy program  created by H.R. 3200 would receive their funding through the annual HHS appropriations bill.  That assumption is entirely erroneous, as the nonpartisan Congressional Research Service has confirmed in two recent memoranda.   None of the sources specified in H.R. 3200 for funding the public option and the premium-subsidy program will flow through the HHS appropriations pipeline; therefore, the Hyde Amendment will not govern them. 

The Hyde Amendment is sometimes referred to as a "rider," but in more correct technical terminology it is a "limitation amendment" to the annual appropriations bill that funds the Department of Health and Human Services and a number of smaller agencies.  A "limitation amendment" prohibits funds contained in a particular appropriations bill from being spent for a specified purpose.  The Hyde Amendment limitation prohibits the spending of funds within the HHS appropriations bill for abortions (with specified exceptions).  It does not control federal funds appropriated in any of the other 11 annual appropriations bills, nor any funds appropriated by Congress outside the regular appropriations process.  [However, because of an entirely separate statute enacted in 1988, the HHS policy is automatically applied as well to the Indian Health Service, as explained below.]

The limited scope of the Hyde Amendment is evident even to the non-specialist simply by reviewing the language of the amendment.  What follows is not the entire Hyde Amendment, but the initial and primary component.  It clearly applies only to "funds appropriated in this Act," which is to say, the HHS appropriations bill for any given year, to which it is attached.

"SEC. 507.  (a) None of the funds appropriated in this Act, and none of the funds in any trust fund to which funds are appropriated in this Act, shall be expended for any abortion.  (b) None of the funds appropriated in this Act, and none of the funds in any trust fund to which funds are appropriated in this Act, shall be expended for health benefits coverage that includes coverage of abortion. . . SEC. 508. (a) The limitations established in the preceding section shall not apply to an abortion-- (1) if the pregnancy is the result of an act of rape or incest; or (2) in the case where a woman suffers from a physical disorder, physical injury, or physical illness, including a life-endangering physical condition caused by or arising from the pregnancy itself, that would, as certified by a physician, place the woman in danger of death unless an abortion is performed."  (from Public Law 111-8 , H.R. 1105, Division F, Title V, General Provisions, italics added for emphasis.) 

The Hyde Amendment was initially approved by Congress in 1976, and initially went into effect on August 4, 1977.  But federal health programs that received funds through appropriations bills other than the HHS appropriations bill were entirely unaffected by enactment of the Hyde Amendment, and continued to pay for abortions until separate laws were passed to deal with them.  One example is the Indian Health Service, which receives its funds from the annual Interior appropriations bill, not the HHS appropriations.  In a 1979 letter to Congressman Henry Hyde (R-Il.), the agency explained as follows:

"You ask where the Indian Health Service is specifically permitted in authorizing legislation to pay for abortions.  Neither abortion nor any other medical procedure or health service, nor the payment for such is specifically provided in authorizing legislation.  The authorizing legislation for IHS is the Snyder Act (25 U.S.C. 13) which permits the expenditure of appropriated funds for the 'benefit, care, and assistance of the Indians throughout the United States' for a number of purposes including the 'relief of distress and conservation of health.'  . . . In providing any of our health services we are governed by applicable laws, both Federal and State, court decisions and Departmental policies.  All current requirements having been met, and procedures followed, we would have no basis for refusing to pay for abortions.  There is, as you inferred, no restrictions on the use of appropriations for payment for abortions under the present Interior appropriations bill."

[In 1988, Congress enacted a revision to the U.S. Code (25 U.S.C. § 1676), which says that any abortion funding limitations found in the HHS appropriations measure will also apply, while in effect, to the IHS.]