House Democrats’ Reconciliation Bill Lacks the Hyde Amendment

 House Democrats have released the latest version of their budget-reconciliation bill, and it still includes the same provisions of the reconciliation bill released last week that could fund elective abortions, including public-health grants and an apparent abortion mandate for plans to cover individuals in the so-called Medicaid gap.

Speaker Pelosi is reportedly pushing for a vote in the House as soon as tonight, but all 50 Democratic senators have not agreed to vote for the House bill.

“I have no idea what’s coming from the House,” West Virginia Democratic senator Joe Manchin told Politico on Wednesday. Manchin has called the Hyde amendment a “red line” for him in any reconciliation bill.

As I reported last week, the most glaring example of taxpayer funding of abortion in the House Democrats’ reconciliation bill — a new “Medicaid-like” program missing the Hyde amendment — has been dropped. But other provisions that could fund abortion remain: 

The reconciliation bill’s section regarding “family planning services” could require these new [Medicaid gap] plans to cover abortions, unless abortion funding is prohibited. In the new 1,684-page reconciliation bill that Democrats released on Thursday, that section of the bill has been changed in a way that at least appears to attempt to exclude elective-abortion coverage — but actually fails to do so.

“We see the change that was made,” says Autumn Christensen of the Susan B. Anthony List. “However, it was not drafted in a way that prevents an abortion mandate because it references the Medicaid statute — which does allow for abortion — instead of referencing Medicaid appropriations, which do not allow for abortion funding.”

This issue is in the legislative weeds, but the point is important: The Hyde amendment, which prohibits Medicaid funding of abortion except in rare circumstances, must be attached each year to an appropriations bill that funds the program. The Hyde amendment is not permanently embedded in the underlying law that established Medicaid.*

“If we assume that this change was made with the intent of addressing the abortion problem, it falls short,” says Christensen. “But we look forward to a true solution.”

The bill that House Democrats unveiled on Thursday is not their final product, and negotiations are ongoing. But if the final bill isn’t scrubbed of its provisions that could fund abortion, Democrats will be setting themselves up for a fight over taxpayer funding of abortion on the Senate floor. There are also “public health” grants in the reconciliation bill that could fund abortion. “Clearly these funds are not covered by the Hyde amendment,” says Christensen.

The simplest way to ensure that the bill doesn’t fund abortion would be to explicitly include the text of the Hyde amendment in the bill — rather than cross-referencing legislation to which Hyde applies — but Congresswoman Pramila Jayapal has said Democrats think that including it would be a “political statement.” At the same time, Jayapal has (incorrectly) claimed that “none of the dollars” in the reconciliation bill would be spent on elective abortion. So there’s no reason to believe that a bill that actually ensures “none of the dollars” would be spent on abortion would lose the vote of Jayapal or any of her followers.

*The Biden administration makes this very point that the statute authorizing Medicaid requires abortion coverage and only the appropriations bill funding Medicaid restricts taxpayer funding of abortion. Anne Marie Costello, Deputy Director for the Center for Medicaid and CHIP Services at the Centers for Medicare & Medicaid Services, explains the distinction between the Medicaid statute and Medicaid appropriations, as they relate to abortion funding, in a declaration filed in the case United States v. Texas—the case challenging the Texas Heartbeat Act.

Two pro-life GOP senators, Steve Daines of Montana and James Lankford of Oklahoma, released a memo highlighting various health-funding provisions of the bill not protected by the Hyde amendment.