Van Orden mischaracterizes what dropping the Hyde Amendment would mean for paying for abortions

When President Joe Biden released a budget proposal in May that would drop the ban on federal funding for abortions, he reversed a position he had long held, fulfilled a campaign promise and angered abortion opponents. 

The Hyde Amendment, a congressional rider attached to the U.S. Department of Health and Human Services’ budget, has blocked the use of federal dollars for abortions in most cases since 1976. 

Under Hyde, pregnant people who get their health care through Medicaid, Medicare, the Indian Health Service and other federal insurance programs are prohibited from using those programs to pay for abortions. 

Supporters of abortion rights say the rule discriminates against people of color and low-income Americans, while anti-abortion advocates say taxpayers shouldn’t be footing the bill for procedures they disagree with. 

That second camp includes Derrick Van Orden, a Republican and former Navy SEAL who is running to unseat U.S. Rep Ron Kind, D-La Crosse, who represents large swaths of western Wisconsin. Van Orden lost narrowly to Kind in 2020. 

Van Orden tweeted about the issue on June 12, 2021, referencing a tweet from the Republican National Committee that said Biden’s decision to remove Hyde broke with decades of bipartisan precedent.

"In a single election cycle we went from the most Pro-Life President in history to one that will force Americans to pay for abortion — on demand — up to birth," Van Orden tweeted. 

Much was said when President Donald Trump held office about whether he was the most pro-life president. Since Biden is in office now, we’ll focus on the latter half of the claim — that he would force Americans to "pay for abortion — on demand — up to birth." 

Let’s check it out. 

When asked for evidence to back up the claim, a staffer for Van Orden’s campaign said the removal of the Hyde Amendment would result in taxpayers funding abortions, including in Wisconsin and 32 other states, which follow Hyde’s restrictions and do not use state dollars to pay for abortions under Medicaid. 

An important caveat: Congressional Republicans are likely to move to reinstate Hyde during budget negotiations. Experts agree that Biden will face an uphill battle to keep it out, especially since the measure enjoys support from some moderate Democrats as well as Republicans. 

But let’s say Hyde does get removed through the budget process. Would taxpayers then be paying for abortion on demand, and up to birth?

The Hyde Amendment applies only to the funding of abortion, not to state laws determining the gestational age at which an abortion is or isn’t allowed, Alta Charo, a University of Wisconsin-Madison law and bioethics professor, said in an email to PolitiFact Wisconsin. 

"With the Hyde Amendment gone, its federal funding restrictions would no longer apply to legal abortions, but the states would still determine the boundaries of legality, subject to state and federal constitutional law decisions on the extent of state power and the extent of women’s rights," Charo wrote. 

People living in states that impose limits on when during a pregnancy a person can have an abortion, then, would not be paying for abortions up to birth if Hyde were removed. 

That includes Wisconsin, where abortions are prohibited at 22 weeks after a person’s last menstrual period unless the person’s life and physical health is threatened. 

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A woman holds a sign that says, “I want my daughter to have the right to abortion that I didn’t have.”

So if the Hyde Amendment’s removal doesn’t specifically allow for abortions up until birth, where did that part of the claim come from? 

The concept isn’t new, said Mary Ziegler, a law professor at Florida State University. 

Most recently, former Vice President Mike Pence said in an Oct. 7, 2020 debate against Vice President Kamala Harris that both Harris and Biden support abortion "up to the moment of birth." 

Politifact National rated that claim False.

(It’s important to note that abortions later in pregnancy are rare in the U.S. In 2018, 1% of abortions were performed after 21 weeks’ gestation, according to data from the Centers for Disease Control. More than 90% were performed before 13 weeks’ gestation.) 

The idea arises from how abortion opponents have interpreted the landmark Roe v. Wade case, as well as another case, Doe v. Bolton, which was decided three years later, Ziegler said. 

Roe, as is widely known, recognizes a person’s constitutional right to a safe, legal abortion. Doe v. Bolton allows doctors to consider a wide range of factors when determining whether an abortion is for health reasons. 

That could include "all factors physical, emotional, psychological, familial, and the woman’s age relevant to the well-being of the patient," the case said. 

"A lot of abortion opponents look at that and say, ‘Roe and this companion case legalized abortion until birth pretty much for any reason,’ " Ziegler said. 

But it’s unlikely that Biden shares that interpretation, she said. 

And still, some states take a stricter reading of that particular component of the case — including in Wisconsin, where the person’s "physical health" must be threatened to obtain an abortion later in the pregnancy than 22 weeks. 

Rather, the idea that those who support the Roe ruling and related cases support abortion up to birth is "sort of like a social movement narrative," Ziegler said, in the murky world of how different people interpret abortion-related U.S. Supreme Court cases. 

Biden has not said that he supports abortion up until birth. His campaign told Politifact National that he supports Roe as amended by the 1992 U.S. Supreme Court ruling Planned Parenthood v. Casey, which allows states to regulate abortion in certain ways as long as the regulations don’t place an undue burden on the pregnant person.

Van Orden said the president would force Americans to pay for abortion, on demand, up to birth. 

While he’s right that Biden’s dropping the Hyde Amendment signaled a desire to use federal funds to pay for abortions, the rest of his statement mischaracterizes Biden’s position and what reversing Hyde would do. 

Dropping the Hyde Amendment, already an unlikely scenario, would not change states’ limits on when an abortion could happen and for what reasons abortions later in a pregnancy can be performed, experts say. 

Our definition of Mostly False is a claim that "contains an element of truth but ignores critical facts that would give a different impression."

That fits here.