After the Hyde Amendment: Public funding for abortion in FY 1978.

What effect did the passage of the Hyde Amendment and its successors have on federal and state funding of abortion services for poor women?

In 1976, Congress passed the Hyde Amendment, the first of a series of amendments to annual Labor-DHEW appropriations bills forbidding the expenditure of federal funds for abortion services except in cases where continuation of the pregnancy threatened the pregnant woman's life. The measure primarily affected Medicaid (Title XIX of the Social Security Act), the program under which the federal and state governments share the cost of necessary medical and surgical care for indigent Americans. Enforcement of the restrictive amendment was enjoined, however, by a New York District Court judge until August 1977, after the U.S. Supreme Court had ruled that states could refuse to pay for "nontherapeutic" abortions, even though they paid for childbirth and other pregnancy-related services. Each year after 1976, Congress renewed the ban, first liberalizing the standards somewhat to include "promptly reported" rape and incest and "severe and long-lasting physical health damage" confirmed by two physicians, then in 1979 d eleting the latter as an allowable condition. As a result of these amendments, federal funding of Medicaid abortions fell by 99 percent; the wording of the restrictions appeared to make little difference, since most approved abortions were for life-threatening conditions.

Federal contributions to abortion funding under the Medicaid program range from 50 percent to 90 percent of the total subsidy, with state funds making up the remainder. (*)

Although the Hyde Amendment and its successors did not prohibit states from paying for abortions which did not meet their restrictive standards, most states adopted the Hyde restrictions (or narrower ones) rather than picking up the full cost themselves. (+) Many of these states, however, were required by court order to fund abortions that were medically necessary. Under the Supreme Court's broad definition of medical necessity in Doe v. Bolton, (1) it could have been predicted that a much larger number of abortions would be funded by these states than under the Hyde standards.

In this article, we have attempted to analyze the overall pattern of public abortion funding as it emerged during FY 1978, the first year after enforcement of the Hyde Amendment. We have examined the level of public funding, both state and federal, and the number of publicly funded abortions occurring in each state during FY 1978. We have then assessed how much the Hyde Amendment increased the unmet need for publicly funded abortions during this period.

The constitutionality of the Hyde Amendment is currently being reviewed by the U.S. Supreme Court. Almost as soon as the amendment passed Congress, a suit challenging its constitutionality was filed in U.S. District Court for the Eastern District of New York State. The class-action suit (McRae v. Harris) was brought by a group comprising Medicaid-eligible women denied publicly funded abortions, physicians, Planned Parenthood of New York City, and the Women's Division of the Board of Global Ministries of the United Methodist Church. On January 15, 1980, Judge John F. Dooling, Jr., ruled {++) that the Hyde Amendment violated both First and Fifth Amendment rights of Medicaid-eligible women, and ordered the Department of Health and Human Services (DHHS--formerly DHEW) to resume federal Medicaid payments for all medically necessary abortions. (2) Dooling's decision was immediately appealed to the Supreme Court. On April 21, the Court heard two and one-half hours of argument, and is expected to make a final ruling on the constitutionality of the Hyde Amendment before the end of its 1980 spring term.

The Survey