06/20/2012 05:08 pm ET Updated Aug 20, 2012

Changing Course on the Hyde Amendment

In the Jewish calendar, time is tracked by the lunar cycle. The beginning of each month varies as the moon waxes and wanes and is celebrated as Rosh Chodesh -- literally the "head of the month" -- a holiday long associated with women. And, like many holidays tied to new beginnings, Rosh Chodesh offers everyone a time to reflect on what has been and the opportunity to change course.

This month, the holiday lands on June 20. While many Jewish women will mark the occasion with joyous communal prayer or other women's social and educational events, on the secular calendar June 20 carries another, darker layer of significance for all women in America: Thirty-five years ago, the U.S. Supreme Court upheld bans in public funding and insurance coverage of abortion in three separate cases (Maher v. Roe, Poelker v. Doe and Beal v. Doe). Since then, these decisions have left millions of women unable to access legal healthcare when they need it. The court's action was unfair -- and it's about time we changed course.

Those three cases challenged the so-called Hyde amendment first enacted in 1976, which bars the government from paying for insurance coverage of abortion, except in very narrow circumstances. There really is no question that Rep. Henry Hyde, motivated by his deeply held Catholic faith to sponsor this amendment, intended it to be the opening salvo in a battle to eliminate every woman's access to safe and legal abortion services. For the anti-abortion movement, Hyde is the fulcrum of using the law as a lever to deny abortion rights to as many women as possible, based on their particular religious view of the fetus.

After Hyde's exclusion of abortion services from the medical insurance available to poor and low-income women through the Medicaid program and the Indian Health Service, the "no federal funds for abortion" mantra was expanded to reach millions more women. In 1978, military service members and their dependents were denied coverage for abortion, as were members of the Peace Corps in 1979. In 1983, federal employee insurance was barred from covering abortions for employees or their dependents. The ban reached federal prisoners in 1986, and in 1988 the government of the District of Columbia, which is overseen by Congress, was banned from using its own locally raised revenue to ensure abortion coverage was available to DC residents enrolled in Medicaid. In 1988 disabled women covered by Medicare were added to the list. Since 1976, exceptions for rape or incest and in cases where the life or health of the woman was at risk were added to, or deleted from, the legislation in varying forms, narrow or not quite so narrow, as party control of Congress went back and forth.

By now, millions of women are caught up in the late Rep. Henry Hyde's campaign against abortion access. Yet every year Congress has an opportunity to toss out this amendment and its progeny, because Hyde is attached to spending bills that require annual renewal. And, every year Congress lacks the will to do so. When the Affordable Care Act came along, the pattern was set -- funding bans were the norm. Abortion rights opponents succeeded in creating obstacles to accessing abortion coverage, or thwarting it altogether, for women and families who will be able to obtain insurance coverage through the new state insurance exchanges. States were allowed to bar insurance companies from offering coverage.

In Maher v. Roe, one of the Supreme Court cases that found Hyde's funding restriction to be constitutional, Justice William Brennan dissented. He noted parallels to the exercise of other protected rights, like freedom of speech. To him, funding only one option of the two open to a pregnant woman -- childbirth but not abortion -- was no different from funding buses to the polls for Democrats but not Republicans. As Justice Brennan later wrote, the state "cannot interfere with a constitutionally protected decision through the coercive use of governmental largesse."

The story of the Hyde Amendment illustrates once again that when a majority looks the other way as the most vulnerable among us are targeted by a punitive public policy, punishment is extended to more and more people. We are stuck, for now at least, with the Supreme Court's decision that it is acceptable to restrict government funds to favor one result over another even at the expense of women's constitutional rights. But as Rosh Chodesh reminds us, we can change course. There's nothing requiring us to maintain a discriminatory and demeaning public policy. We can and we must organize to end it in accord with one of our founding principles -- it's not fair.