The Hyde Amendment rider and the conscience laws that keep taxpayers out

The most powerful instrument in Washington is not the veto pen, the gavel or the Supreme Court's marble steps. It is a spending bill, because a spending bill can say yes and no in the same breath, and the people who write the no usually get to hide it in paragraph 412 of a document nobody reads.

Henry Hyde read it. He was a Republican congressman from Illinois who understood something his critics have never quite forgiven: you do not have to win the whole argument to win a piece of it. You only have to find the one document Congress must pass every year, and attach a sentence. That sentence has been renewed, in one form or another, for nearly fifty years. It is the reason a federal program that funds the health care of tens of millions of Americans does not, as a general rule, pay for abortions. Alongside it sit the conscience laws that say a doctor, a nurse or a hospital cannot be forced to take part in one. This is the story of how all that came to be, why we think it is a sound way to settle a moral dispute in a country this divided, and what the people on the other side of it argue.

The rider and how it works

A rider is a provision tucked into a bill whose main purpose is something else. Congress passes appropriations bills each year to fund the government, and the House and Senate attach conditions to the money. The Hyde Amendment is a rider on the annual bill that funds the Department of Health and Human Services, among other agencies. It says that none of the funds in the bill may be used to pay for abortions, except in specified circumstances. Because Medicaid is largely funded through that process, the rider bars most federal Medicaid dollars from paying for abortion.

Two features matter right away.

First, it is not a permanent statute. It has to be renewed with each year's appropriations, which is why it has been a fight every year. Opponents of the rider can try to strip it out any time a spending bill comes up, and supporters have to defend it each time. That is both its weakness and its strength: it lives or dies by the one vote Congress cannot avoid.

Second, it restricts money, not conduct. The Hyde rider does not make abortion illegal. It says the federal government will not pay. A woman on Medicaid who wants an abortion may still seek one where it is legal. States may use their own money to cover it, and some do. Medicaid is a partnership between the federal government and the states, and the federal contribution is the part the rider governs.

1976: how it began

Roe v. Wade was decided in 1973. The decision set off an immediate fight in Congress about whether the federal government should pay for what the Court had just said was constitutionally protected. Representative Hyde, in his first term, offered his amendment to the appropriations bill in 1976. Congress approved it, and then a federal court case held up its enforcement for a time. The rider took full effect in 1977.

The first version was narrow, covering only abortions necessary to save the mother's life. In the years that followed the exceptions moved back and forth. A compromise in 1977 widened them, a later version narrowed them again, and since the appropriations law enacted in 1993 the text has named three: the life of the mother, rape and incest. The exceptions, in other words, were not carved in stone by one man in one afternoon. They were negotiated, year after year, by members of both parties, and they changed with the votes available.

Notice something about that history. It is not the story of a faction imposing a rule on a reluctant nation. It is the story of a representative body arguing, losing some years, winning others, and renewing the result. That is the process the Constitution designed.

Harris v. McRae, 1980

The law was challenged almost at once, and the case that reached the Supreme Court was Harris v. McRae, decided in 1980. The challengers argued that denying Medicaid coverage for medically necessary abortions violated the Fifth Amendment's guarantee of due process and equal protection, and also that it embodied a religious view in violation of the Establishment Clause.

The Court rejected both arguments by a vote of five to four. Justice Potter Stewart wrote the opinion. The logic had three steps.

1. Roe protected a woman from government interference with her decision. It did not create an entitlement to government funding of it.
2. A refusal to subsidize a protected activity is not the same thing as a ban on it. The government may favor childbirth over abortion in how it spends public money without forbidding anything.
3. That the rule coincides with the teaching of some religions did not make it a religious law. A statute can reflect a moral view held by religious people and still serve a secular purpose.

I would put the point this way. A right to do something and a right to have somebody else pay for it are two different rights. The first is a shield. The second is a claim on your neighbor's paycheck. The Constitution protects many shields and very few claims on the neighbor's paycheck, and that distinction is not unique to this issue. The First Amendment protects your right to publish; it does not require the government to buy your newspaper.

That reasoning has not made the case less controversial, and the four dissenters made their objections plain. Their view was that the government could not use its spending power to push a poor woman toward one outcome. That is a serious argument, and we take it up below.

The conscience laws

The other half of the story is about who may decline to take part. Here the record is more bipartisan than many people assume.

The Church Amendments (1973). Named for Senator Frank Church of Idaho, a Democrat, these were enacted in 1973, the year of Roe, as part of the Health Programs Extension Act. In general terms, they provide that receiving certain federal health funding does not require an institution or an individual to perform or assist in abortions or sterilizations if doing so would violate their religious beliefs or moral convictions. Later provisions barred discrimination against health workers who refuse. A Democratic senator wrote them, and they carry his name to this day. Washington is not known for passing anything with a sponsor from one party and a purpose that both can live with, which is exactly why it is worth remembering when it happens.

Coats-Snowe (1996). This provision, sponsored by Senator Dan Coats and Senator Olympia Snowe, bars the federal government and state and local governments that receive federal funds from discriminating against health care entities that decline to provide training in, or to perform, induced abortions. The idea is that a medical program cannot lose its accreditation or funding because it refuses to teach a procedure it finds morally objectionable.

The Weldon Amendment (2004). Named for Representative Dave Weldon of Florida, it is another rider, attached to the same HHS spending bill and renewed with it, and it bars the funds from going to federal, state or local governments that discriminate against health care entities because they do not provide, pay for, provide coverage of, or refer for abortions. Like the Hyde rider, it is not a permanent statute. It has to be carried forward with the appropriations, and it has been, year after year.

Three laws, three decades, three different sponsors. The common thread is the same one that runs through the Bill of Rights: the government cannot compel a person to take part in what that person believes is wrong. It goes back further still. It is the logic of the Virginia Statute for Religious Freedom in the 1780s, where Jefferson and Madison argued that forcing a person to support opinions he rejects is a violation of liberty. If you want to see how that tradition began, read Baptists, Madison and the Virginia fight that put religious liberty first.

The power of the purse is a legitimate tool

Let me make the affirmative case, in numbered premises.

1. The Constitution gives Congress the money power. Article I, Section 9, says no money shall be drawn from the Treasury but in consequence of appropriations made by law. Congress decides what the government pays for. That is not a loophole. It is the design.
2. Every spending decision reflects a value judgment. Congress funds this and not that every year, and nobody calls it tyranny when the choice is to fund a bridge instead of a stadium. A decision to fund childbirth and not abortion is a value judgment, and it is made by elected officials who answer to voters.
3. Taxpayers have a conscience, too. A large number of Americans believe abortion ends a human life. Taxation is compulsory. Asking those taxpayers to fund it by force is a heavy thing, and Hyde's compromise says: you do not have to pay for it, and you can still be a citizen in good standing.
4. The compromise leaves the legal right alone. It does not criminalize anything. A person who disagrees with the rule can persuade her neighbors, elect different representatives, and strip the rider from the next appropriations bill.

That last point matters. If you dislike the rider, the remedy is a vote in Congress. The ground of the dispute is not whether it is legitimate, but whether it is wise.

The best case against it

The strongest critique goes like this. The rider treats a woman who can afford to pay differently from a woman who cannot. A wealthy woman has an abortion if she chooses; a woman on Medicaid has to find the money elsewhere or go without. If a right exists on paper but a poor person cannot exercise it, then it is a right for some and not others. And because Medicaid covers childbirth, the government tilts the choice toward one outcome.

I want to treat that fairly, because it is not a silly argument. Here is the answer.

One. Taken to its conclusion, it would require the government to fund every protected activity that costs money. The government does not buy firearms for people who cannot afford them, or pay a private school's tuition for every family who prefers one. A right to be free from government interference is not a right to be subsidized.

Two. Subsidy is the very thing in dispute. For people who believe the unborn child is a person, publicly paying for an abortion is not neutral; it uses the common treasury for what they regard as a wrong. The rider means that neither side's taxpayers are forced to fund the other's convictions about what is right on this contested point.

Three. If the objection is that the rule is too harsh on poor women, then the remedy is to widen the exceptions through the same democratic process that wrote them. The exceptions have changed before, and they can again.

The critic will still say it falls hardest on the poor. That is a fact about the policy and it should be acknowledged. A law can be constitutional and still be debated on its effects. The right response to such an argument is to make a case for the policy and to pair it with real support for mothers and children, which is what we explore in 'Pro-life stops at birth' is the line to answer, so let's answer it.

How this plays out in the years since

Since Dobbs overruled Roe in June 2022, the argument has moved to the states, and the Hyde rider operates in a different landscape. In states where abortion remains legal, the rider still determines whether federal Medicaid money can be used. In states where it is restricted, the rider matters less. Either way, the structure is the same: Washington does not pay, and the states decide on their own funds.

The fight over the rider will return, as it does every year, whenever the spending bills come up. Opponents have introduced bills to repeal it, and supporters will defend it. This is not a sign that something is broken. It is how the money power works. A rider that has to be renewed gets debated, and a rule that gets debated carries democratic legitimacy that a judge's pronouncement never could.

If you want to see how that works in practice, there is a good companion in How a budget becomes law, from the President's request to the checks, which traces a spending bill from the White House to the Treasury. And if you want to see how a minority can use the same bills to fight, read how a minority party fights a spending bill when it does not have the votes. Anyone who understands the appropriations process understands why a single sentence can last half a century.

Where to check the text

You do not have to trust a summary of this. The riders are in the text of the annual Labor, Health and Human Services, Education appropriations act, and they are public. Congress.gov carries the text of every appropriations bill, and the Government Publishing Office has the enacted law. Search for "Hyde" and "Weldon" in the general provisions of the HHS title. If you want the current exceptions, read the current bill, because they are renewed and can change from year to year. Do not rely on anyone's memory, including ours.

The bottom line

• The Hyde rider has stood since 1976 because Congress has renewed it, not because a court ordered it. The remedy for those who dislike it is a vote, not a lawsuit.
• Harris v. McRae (1980) held, five to four, that the government need not fund what it may not forbid. A right to act is not a right to be paid for acting.
• The conscience laws, the Church Amendments (1973), Coats-Snowe (1996) and Weldon (2004), protect the person who will not take part. They began with a Democrat and have been backed by both parties.
• Be honest about the critics' best point: a funding limit lands hardest on the poor. Answer it by backing real help for mothers and children, and by defending the compromise on its merits.
• Want to act? Read the current appropriations text on Congress.gov, tell your representative what you want in the general provisions, and show up when the bill moves.