The Hyde Amendment: An Infringement upon the Free Exercise Clause
![handle is hein.journals/rutlr33 and id is 1060 raw text is: The Hyde Amendment: An Infringement Upon
the Free Exercise Clause?
I. INTRODUCTION
Since 1976, Congress has prohibited, by means of a restrictive rider
to an annual federal appropriations bill, the use of federal Medicaid
funds' for abortions except where the life of the woman would be
endangered if the fetus were carried to term.2 This rider, known as
the Hyde Amendment,3 has been the subject of bitter and contentious
debate.4 Among the constitutional criticisms raised by its opponents
is that the legislation violates the free exercise clause of the first
amendment by foreclosing an indigent woman's religious or conscien-
tious5 choice to seek an abortion.6
© Copyright reserved 1981 by Janice C. Biskin.
1. Pursuant to the Medicaid Act, 42 U.S.C. §§ 1396a-1396k (1976) added to the Social
Security Act as Title XIX in 1965, federal funds are annually appropriated to the states to enable
them to furnish medical assistance to families with dependent children and to aged, blind or
disabled individuals when such families or individuals are unable to meet the costs of necessary
medical services. Medical assistance refers to payment of all or part of the cost of specifically
itemized health care services. State plans for medical assistance must be submitted for approval
to the Secretary of the Department of Health and Human Services (formerly the Department of
Health, Education and Welfare). The federal government pays between 50% and 83 % of the
cost of the medical assistance furnished under approved plans.
2. The modified Hyde Amendment enacted for fiscal years 1978 and 1979 listed two
additional exceptions to the general prohibition against the use of appropriated funds for
abortion. It stated:
[N]one of the funds provided for in this paragraph shall be used to perform abortions
except where the life of the mother would be endangered if the fetus were carried to
term; or except for such medical procedures necessary for the victims of rape or
incest, when such rape or incest has been reported promptly to a law enforcement
agency or public health service; or except in those instances where severe and
long-lasting physical health damage to the mother would result if the pregnancy
were carried to term when so determined by two physicians.
Act of Dec. 9, 1977, Pub. L. No. 95-205, § 101, 91 Stat. 1460 (1978); Act of Oct. 18, 1978, Pub.
L. No. 95-480, § 210, 92 Stat. 1587 (1979). When Congress reenacted the amendment for fiscal
year 1980, the latter exception was deleted. Act of Oct. 4, 1979, Pub. L. No. 96-123, § 109, 93
Stat. 923 (1980).
3. The amendment is named for its congressional sponsor, Rep. Henry J. Hyde of Illinois.
Throughout this Note, the term Hyde Amendment is used generically to refer to all enacted
versions, unless indicated otherwise.
4. The House and Senate debates on the Hyde Amendment are but two examples of the
magnitude of the controversy. Both houses viewed the issue as a moral one and sharply debated
the propriety of any legislation restricting therapeutic abortion and the importance of the
woman's choice betw een abortion and childbirth. There was also sharp disagreement as to
whether a constitutional right to choose abortion implied a right to have the abortion paid for
from Medicaid funds, and whether restrictions on this right would discriminate against the
indigent woman who decided upon abortion. Additionally, the legislators sought to quantify the
practical consequences in death and health damage from illegal abortions that could result from
the denial of Medicaid funds for legal abortions. Some sentiment existed that the amendment
would have a disproportionate effect on black and Hispanic women. See McRae v. Califano, 491
F. Supp. 630, 742-836 (E.D.N.Y. 1980).
5. See notes 47-64 infra and accompanying text.
6. See Plaintiffs' First Amendment Brief, McRae v. Califano, 491 F. Supp. 630 (E.D.N.Y.
1980)[hereinafter cited as Plaintiffs' First Amendment Brief].
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The Hyde Amendment: An Infringement upon the Free Exercise Clause
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