The Hyde Amendment at 40: Constitutional Rights Are for Everyone … Who Can Afford Them

The debate around the Hyde Amendment has been squarely focused around abortion. Rightly so. The procedure is still a delicate topic, despite approximately 2 out of 5 women getting an abortion in their lifetimes. But the Hyde Amendment has another angle that no one is talking about. Do poor women actually have a constitutional right when they cannot afford access to that right?

The Hyde Amendment turns 40 this Friday. So what’s the Hyde Amendment?

In 1973, the Supreme Court of the United States (SCOTUS) decided that individuals have a right to privacy under the 14th Amendment. Roe v. Wade, along with several other cases, saw SCOTUS reasoning that a right to privacy extends to a woman’s right to an abortion. Women who lived through centuries of dangerous back-alley abortions, botched abortions, and dangerous abortifacient drugs saw Roe as a pivotal case for women’s rights.

Three years after Roe v. Wade — 40 years ago this Friday, on September 30, 1976Rep. Henry Hyde of Illinois attached a rider to the annual appropriations bill. The Hyde Amendment forbade federal funds to be used for abortions. This rider has been renewed yearly, but never officially added to the bill itself. Years later, two more provisions were added to the Hyde Amendment to allow exceptions for the health of the mother and cases of rape or incest. The effect of this provision meant that thousands of poor women would no longer be able to afford an abortion. Their access to a constitutional right had been considerably decreased.

Quick sidebar: Lawyers and law nerds alike might use the term “suspect class” to refer to a group of people who, historically, have been the object of discrimination. When laws treat a suspect class differently from other groups of people, they are supposed to come under greater scrutiny when examined by SCOTUS. With this idea in mind, one might wonder if the Hyde Amendment treats one group of marginalized people differently — namely, people who receive Medicaid, i.e., those living below the poverty line.

The question of whether or not the poor are a “suspect class” in constitutional law has been mostly answered by judgments in previous legal cases. The poor currently stand as a “quasi-suspect class” with unclear protections under that classification. Cases such as Gideon v. Wainwright and its progeny determined that the Sixth Amendment guarantees indigent persons the right to counsel in criminal cases. Subsequent cases have determined that this right does not extend to civil cases, even when people are fighting to save their property, such as a house. In the face of the recent housing scandal and economic crash, the right to counsel when protecting homes for thousands of families would have saved a lot of them from homelessness and financial ruin. But I digress. Indigent persons have been held as a suspect class, like race or gender, under the 14th Amendment, but there is no holding officially designating them as such.

SCOTUS refused to accept wealth discrimination as a requirement for strict scrutiny when determining if refusing abortions for Medicare recipients was constitutional. In both Maher v. Roe and Harris v. McRae, the court asserted that the poor are not a suspect class and laws targeting poor women seeking abortions did not violate the Equal Protection Clause of the 14th Amendment. These decisions upheld state and federal laws eliminating funds for abortions.

The problem is that we live in a society with an increasing wealth divide. Determining that poverty-level persons are a protected class would allow more than their constitutional right to an abortion. It would also guarantee that poor people have equal access to courts, ensuring other rights like protecting their homes, access to educational programs, and, potentially, the political system. Such a designation could allow the erosion of decisions like Citizens United.

Or one could only hope. The protections necessary for indigent people in this country need determining by SCOTUS. Not only for the safety and security for women to adequately plan their families, but also to enable enforcement of indigent persons’ rights. There is no point in having constitutional rights if we cannot afford access to those rights, or access to the legal system that enforces those rights.

To learn more about the Hyde Amendment and the constitutional rights of those for whom financial barriers post an obstacle to abortion services, check out this piece on the Loyola University Chicago School of Law’s website.