The Hyde Amendment limits federal Medicaid spending on abortions to only those instances of rape, incest, or when a patient’s life is in danger. But because it is a budget rider attached to federal appropriations bills, states can choose to use their own funds to cover abortion for Medicaid recipients beyond the limits under the amendment, as 17 states have chosen to do. That fact alone proves that Hyde restrictions are anything but the settled law conservatives claim.

Yes, the Supreme Court upheld the restrictions as constitutional, but the Court didn’t mandate in Harris v. McRae that Congress include them in each budget cycle. The Hyde restrictions remain a political choice to intentionally discriminate against poor women.

It’s difficult to deny, though, that as the Hyde Amendment reaches an inglorious 40th anniversary, it’s at least possible expanding Medicaid coverage for abortion is on the horizon rather than restricting it. For the first time since its passage, a Democratic presidential candidate is calling for an end to the budget rider. “End Hyde” also has become a refrain among abortion rights advocates and mainstream organizations alike.

While there is still a lot of political ground to cover between campaigning on ending Hyde restrictions and actually ending Hyde restrictions, an examination of the history and effect of the amendment on the states can provide some insight into what it would mean to end the intentional discrimination against poor women seeking access to basic health care nationwide.

The fight about federal and state funding for abortion started almost as soon as the Supreme Court announced in Roe v. Wade that the federal constitution protects the right to an abortion. Social conservatives went to work almost immediately trying to limit the reach of that decision. They quickly turned to Congress, Medicaid, and health insurance coverage for low-income people.

In 1976 conservatives imposed a total ban on Medicaid funding of abortion by attaching the earliest iteration of the Hyde Amendment to a federal appropriations bill. At this time, states began passing spending restrictions on abortion as well, but the Hyde Amendment was the first time the federal government put its weight completely behind discriminating against women by curtailing abortion access post-Roe. 

Two years later, in 1978, Congress included in that amendment exceptions for a “promptly reported” rape, cases of incest, or if continuing the pregnancy would result “severe and long-lasting physical health damage” to the patient. Congress would remove the narrow rape and incest exceptions again in 1981 as soon as Ronald Reagan took office.

It wasn’t until 1993, when the rape, incest, and life endangerment restrictions were renegotiated back into the Hyde Amendment, that the fight over using state funds for abortion would flare up and eventually produce a flurry of court orders protecting expanded Medicaid coverage of abortion.

“In 1993 Bill Clinton said that state funds for Medicaid had to at least cover instances where a woman’s life is endangered or cases of rape or incest,” Elizabeth Nash, the senior state issues manager at the Guttmacher Institute told Rewire in an interview. “Before then, state funds for Medicaid had all different kinds of restrictions when it came to abortion. Some states were voluntarily providing coverage for abortion. But because coverage was tied to state appropriations, what could be covered would change over the years.”

Nash is referring to a letter sent by the Department of Health and Human Services to state Medicaid directors under the Clinton administration, directing them that they needed to at least meet the federal standard in funding abortion under Medicaid. Conservative lawmakers in places like Arkansas and North Dakota complained in court challenges that the directive violated those states’ rights to restrict Medicaid funding for abortion entirely. Federal courts soundly rejected those claims, ruling again and again and again that the Hyde Amendment pre-empts conflicting state law, which means states can’t prohibit Medicaid funding for abortions beyond Hyde’s limitations while also continuing to accept federal Medicaid funds.

In other words, the federal courts made it clear that if states were going to accept federal Medicaid funding they had to abide by the U.S. government’s rules on how that money was to be spent, even when it came to funding abortions.

That hardly stopped conservatives from trying to work around Hyde’s meager exceptions. In states like Minnesota, where Medicaid funding for abortion typically included “therapeutic” or “medically necessary” abortions, legal battles bubbled up defining the contours of those terms against the federal Hyde restrictions, with advocates successfully arguing for greater protections of Medicaid funding at the state level than afforded federally.

“Typically these cases would end up before the state supreme court. And what the court would say is ‘[o]ur state constitution provides greater protection than the federal constitution,’” Nash said. “Then the court would have some supporting arguments around how the restrictions treat women who are pregnant and are Medicaid enrollees differently than women who are pregnant and not on Medicaid,” explained Nash. “The supreme courts at the states were saying ‘[t]hese restrictions violate the equal protection clauses or the equal rights clauses or the due process clauses at the state constitution,’” continued Nash.

“The courts agreed this was a real violation of constitutional rights.”

Even with these court orders, though, some states continue to try and curb state Medicaid funding for abortion. Nash pointed to Alaska as a state that “just can’t let go” the funding fight.  In 2001, the Alaska Supreme Court ordered the state to cover abortions that a patient’s physician says are “medically necessary.” Lawmakers have routinely tried to circumvent that ruling, most recently in 2014, by passing a law that attempts to define “medically necessary” to a list of 21 pre-approved conditions, none of which include psychiatric disorders that could threaten the life of the patient.

That law is currently blocked by court order, but as Nash pointed out, orders like those in place in Minnesota and Alaska do very little for patients in states like Oklahoma where the issue of what state constitutional protections exist for abortion rights remains an open question. “There has been this long-standing understanding that the state constitution in Alaska provides broader protections than the federal constitution generally, and those protections are very strong when it comes to abortion rights,” said Nash. “But the issue is, let’s say potentially other states try to define ‘medically necessary’ and don’t have the same kinds of protection?”

The result of these multiple lawsuits at both the state and federal level challenging Medicaid funding for abortion is a patchwork of coverage for low-income patients depending entirely on where in the United States they happen to live.

Which is why the push to repeal the Hyde restrictions and enact broad funding mandates is so critical. But what would “ending Hyde” look like? Even that answer is not entirely clear.

“I could imagine there might be some language to say that medically necessary abortions based on providers’ individual assessment of a patient [are covered], or something like that,” said Nash. “But I could see it covering abortion the same [way as insurance covers] any other health care. That would be much more ideal, right?

“But then—so let’s pretend we live in this magical world where a state implements this and says funds can now be used to cover more abortions. I don’t know what it would mean to sort of ignore state courts.”

In other words, even ending Hyde would likely not end litigation surrounding Medicaid funding for abortion. And it could even renew attacks at restrictions on abortion funding in the private marketplace as well, since those restrictions in the form of the Stupak-Pitts Amendment to the Affordable Care Act were modeled after the Hyde Amendment from the start.

Of course, that doesn’t mean advocates shouldn’t push for a repeal of Hyde’s restrictions. They should. And it doesn’t guarantee that state courts wouldn’t fall in line with a different congressional mandate on abortion funding, one that does not discriminate on the basis of whether one happens to be a Medicaid recipient. They very well could. But it does mean that on the 40th anniversary of the Hyde Amendment, the only thing guaranteed even with a repeal of Hyde is that conservatives will continue to fight affordable abortion access, especially for low-income patients.