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Does the Hyde Amendment Violate Human Rights?

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The Hyde Amendment has prohibited federal funding for abortion for women for the past 30 years, with few exceptions. The 12 million women of reproductive age on Medicaid, as well as women in the military, in the Peace Corps, in federal prisons, and those receiving health care from Indian Health Services, are effectively banned from receiving safe abortion services because most of them cannot afford the cost of abortion care on their own. Hyde-like restrictions deny women their freedom, equality, and dignity. But does the Hyde Amendment violate human rights?

The 1973 Supreme Court decision Roe v. Wade affirmed women’s fundamental right to determine whether or when to have children. Three years later, however, the Hyde Amendment was introduced and subsequently found constitutional by the Supreme Court in Harris v. McRae. Together, the Hyde Amendment and the Harris decision in practice deny most women with federal health insurance the right to an abortion.

In contrast to United States constitutional standards, human rights standards recognize governments’ duty to provide individuals with the means to exercise their rights. International human rights recognize principles of human dignity and equality and emphasize non-discrimination. All people regardless of their race, color, sex, language, religion, opinion, national or social origin, property, birth or other status hold human rights, which governments have a duty to respect, protect, and fulfill. A human rights lens is a powerful tool for assessing the validity of laws because it forces us to view not just the behavior choices made by women, but also how government policies affect women in specific conditions.

In 1994, 179 governments—including the United States—affirmed that control of one’s fertility is a basic right at the United Nations International Conference on Population and Development. This was reaffirmed at the Fourth World Conference on Women in Beijing. In 1999, the U.N. General Assembly agreed that, “where abortion is not against the law, health systems should…ensure that such abortion is safe and accessible.” United Nations committees charged with interpreting human rights treaties have found that the denial of abortion services in certain circumstances can be a violation of women’s human rights, including their right to life; right to non-discrimination; right to privacy; right to be free of cruel, inhuman, or degrading treatment; and right to health.

The Hyde Amendment and similar funding bans clearly violate women’s human rights under these evolving international norms. They discriminate on the basis of sex, race, and economic status. They restrict access to a type of health care needed only by women, especially those who are poor and overwhelmingly of color. Women make up 70 percent of adult Medicaid beneficiaries; women of color make up 51 percent of non-elderly beneficiaries; and 60 percent of indigenous people obtain care from Indian Health Services.

U.S. foreign policy also undermines the above international agreements by restricting women’s reproductive health access and human rights around the world. The 1973 Helms Amendment, which is the equivalent of the Hyde Amendment in the international arena, prohibits U.S. funding for abortion outside of the U.S. In 2001, the Bush administration reinstated the “Global Gag Rule,” which prohibits U.S. funding to any foreign organizations that use their own, non-U.S. government funding to provide abortion counseling, referrals, or services, or to lobby their government for a less restrictive abortion law.

These restrictive U.S. policies have resulted in increased risk to the health and lives of women in the developing world. Globally, nearly 70,000 women die from abortion and tens of thousands more suffer serious injury each year. Persistently high levels of death and injury from unsafe abortion have been recognized as violations of women’s right to life and health by global authorities—human rights violations that are exacerbated by U.S. foreign policy.

All women, regardless of their economic status, deserve to be afforded the dignity to make personal decisions about pregnancy and childbearing and the ability to access the reproductive health care necessary to implement those decisions. For thirty years, U.S. policies have been allowed to violate the human rights of women at home and abroad. We must work for the day in which our laws protect those rights instead.

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Jamie D. Brooks is a Staff Attorney for the National Health Law Program’s Chapel Hill office, where she focuses on reproductive rights, health as a human right, Medicaid policy, and litigation assistance. Patty Skuster, J.D., M.P.P., is a Policy Associate for Ipas, an international organization that works to increase women’s ability to exercise their sexual and reproductive rights and to reduce deaths and injuries of women from unsafe abortion. For more information about the Hyde Amendment and human rights, see this fact sheet, www.healthlaw.org, www.ipas.org, and www.hyde30years.nnaf.org.

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