Last week, the Hyde Amendment, which prohibits taxpayer funding of most abortions, became the focus of presidential politics. First Joe Biden said he still supported the amendment, then changed his position one day later, after tremendous political pressure from farther-left Democrats.
But the press should focus less on whether Democrats support taxpayer-funded abortion-on-demand. Virtually all Democrats running for president now support that position, as did the party’s 2016 national platform.
Rhetorically, Democrats sound fully in lockstep with their pro-abortion left. For instance, on Tuesday presidential candidate Sen. Kirsten Gillibrand (D-NY) called a pro-life position “not acceptable,” and equated nominating pro-life judges to “appoint[ing] a judge who’s racist or anti-Semitic or homophobic.” But with the Hyde Amendment, the real test for Biden, Gillibrand, and their fellow candidates will come in how hard they will push for its repeal.
For all the focus last week on the Hyde Amendment, named after its prime advocate, the late Rep. Henry Hyde (R-IL), reporters have not focused on the Labor-Health and Human Services spending bill that the House of Representatives will consider this week. The committee-approved bill includes the following language:
SEC. 506. (a) None of the funds appropriated in this Act, and none of the funds in any trust fund to which funds are appropriated in this Act, shall be expended for any abortion.
In other words, an appropriations bill approved by the Democratic-run House Appropriations Committee still includes the Hyde Amendment language. (Subsequent sections exempt cases of rape, incest, or to save the life of the mother—the Hyde Amendment exceptions—from the funding ban.)
Yet the chairwoman of that Committee, Rep. Nita Lowey (D-NY), co-sponsored stand-alone legislation (H.R. 1692) repealing the Hyde Amendment protections that she included in her spending bill.
An appropriations bill lacking Hyde protections on taxpayer funding of abortions holds virtually no chance of becoming law, for several reasons. First, Republicans control the Senate, and Majority Leader Mitch McConnell (R-KY) will not bring a bill to the Senate floor that lacks the Hyde protections. Early last year, a move to bail out Obamacare failed because Republican leaders would not support additional funding for the law without clear protections on taxpayer funding of abortion, while Democrats would not vote for any measure that included those protections.
Even if Republicans did not control the Senate, 41 pro-life senators could filibuster any measure lacking Hyde Amendment protections, thus preventing the legislation from passing. And of course, President Trump can, and likely would, veto any appropriations bills that omitted pro-life protections on taxpayer funding of abortion.
The likelihood during this Congress of legislation passing that excludes the Hyde Amendment seems infinitesimal. Moreover, such legislation passing during the next Congress could well require 1) a Democrat to win the presidency, 2) Democrats to retake the Senate, and 3) Democrats to agree to end the legislative filibuster, which dozens of them claim they oppose.
Events in the House this week show that liberal members of Congress are essentially “going through the motions” about repealing the Hyde Amendment. Several of them, led by Rep. Ayanna Pressley (D-MA), offered an amendment to strike Hyde from the spending bill. However, on Monday the House Rules Committee reported a rule for consideration of the underlying bill that did not make the amendment in order.
Ostensibly, the Democratic leadership did not allow the House to vote on the amendment because the amendment contained authorizing language, which violates House rules prohibiting the addition of unrelated matters on spending bills. But in reality, the House Rules Committee can, and does, waive such procedural restrictions when it wishes to do so. It didn’t here.
Likewise, Pressley could have omitted that authorizing language, and submitted a shorter amendment just striking the Hyde provisions. She did not—and that she did not strongly suggests that she and her colleagues wanted to give the House Rules Committee, and therefore Democratic leadership, an “out” to block consideration of her amendment.
Pressley’s office claimed “the Congresswoman believes that she and her colleagues must use every tool and tactic available to fight for reproductive justice.” But if she wanted to use “every tool and tactic,” she would have drafted an amendment without an obvious procedural flaw giving the leadership political cover to reject it. She and her liberal colleagues would also demand a vote on her amendment, and vote against the rule to consider the bill unless and until Democrats give them one.
Pressley didn’t do the former, and when the vote on the rule came on Tuesday, she and her colleagues didn’t do the latter either. Instead, she cut a deal with the leadership whereby everyone could “save face”—as evidenced by the fact that House Rules Committee Chairman Jim McGovern, on the same day he denied her amendment a vote, co-sponsored the stand-alone bill requiring taxpayer funding of abortions.
The “failure theater” in the House this week demonstrates that Democratic presidential candidates currently serving in Congress may soon find themselves in a political bind. Those who criticized Biden for his Hyde Amendment flip-flop—or, as former Obama adviser David Axelrod called it, a “flip-flop-flip”—are going to have to flip on the issue themselves. For instance, Rep. Seth Moulton trolled Biden on Friday, asking him to change his position on the 2003 Iraq war.
In the coming months, however, Moulton will face a flip-flop decision of his own, as will the many other Democratic presidential candidates currently serving in Congress. Will they vote for spending bills that include the Hyde Amendment—as any final appropriations package almost certainly must include its provisions to get enacted into law—even though they claim to support repealing the amendment?
On Sunday, Democratic presidential candidate Bernie Sanders (I-VT) laid the groundwork for just such a reversal. In an interview with CNN, he admitted that “sometimes in a large bill you have to vote for things you don’t like.” (That makes a good argument for Congress to stop passing massive spending bills that they don’t bother to read.)
Of course, if Democrats don’t want to flip-flop on taxpayer funding of abortion, they have another alternative: Refuse to pass any spending bills that include the Hyde Amendment provisions. If House Speaker Nancy Pelosi (D-CA) wants to shut the federal government down until Republican lawmakers approve taxpayer-funded abortion-on-demand, well, good luck with that. But if she and her Democratic colleagues don’t want to follow that strategy, then they should get ready to explain to their constituents why they voted for legislation that retained the Hyde Amendment after promising to abolish it.
In crass political terms, Biden didn’t help his candidacy by wavering over the Hyde Amendment last week. But even though they may not yet realize it, most of his fellow presidential candidates may soon have their own flip-flop moments on taxpayer funding for abortion.