September 30 was the fiftieth anniversary of Congress first approving the “Hyde Amendment,” a budget provision subsequently adopted every year for the past half century limiting federal funds for Medicaid abortions. For those too young to remember its first enactment, it’s worth recalling the Constitutional issues that plagued its adoption — and explore the new forms those issues are taking today.

When the Supreme Court legalized abortion-on-demand in 1973, it created a total break in American law. Overnight, what had hitherto been a procedure almost completely regulated by the states became a one-size-fits-all federal question. It also radically shifted the gravamen of how the law regarded abortion. In 1973, 46 of 50 states still largely prohibited abortion. Stepping in legal no-man’s land, the Court was shifting the debate to abortion being a “right” whose restriction could survive Constitutional scrutiny for only the strictest reasons.

Into that atmosphere came the question of public funding of abortion. Although it was difficult to imagine an act that had been deemed criminal in most states only a few months earlier now constituted a fundamental right, that is how the courts began treating the abortion license. And one of the first areas where the expansion of that right arose was public funding. The times were ripe: America was on the rear end of the 1960s welfare state expansion.

Abortion advocates early insisted that Roe’s abortion right would be rendered nugatory if economic differences prevented indigent women from availing themselves of it, so they argued equal protection demanded federal funding of abortions for the poor. A few federal judges agreed, ordering such payments even though there was no explicit authorization for them in law.

That’s when Illinois Congressman Henry Hyde tried to turn off the funding spigot. Although Hyde was pro-life, the argument for his Amendment was also political: Given America’s deep divide over abortion, it was unjust to demand taxpayers — many of whom deemed abortion to be killing — to be complicit in the practice through state funding. The status of abortion was separate from the status of public funding of abortion. And the existence of a right did not entail an obligation for the government to fund that right for the poor. Nobody argued, for example, that the right to keep and bear arms entailed Washington sending guns to the poor of America.

Hyde managed to enact his amendment in the House, but the Senate proved a holdout. Back in the 1970s, the idea that the federal budget would not be in place and there could be an interruption in federal funding by the end of the fiscal year was unthinkable. Hyde and the House used that leverage to get the Senate eventually to back down, the prohibition on Medicaid abortion funding first going into effect in 1976.

Abortion proponents, however, would not give up. They challenged the Hyde Amendment in federal court, arguing it abridged poor women’s rights and represented an imposition of religion. In 1980, the Supreme Court finally decided, in Harris v. McRae, that the existence of a federal constitutional right did not create a concomitant federal duty to fund it. The Hyde Amendment was upheld and, in various permutations, has been annually re-enacted in the intervening years.

Harris v. McRae did not, however, stop the effort to fund abortion. If there was no federal right to abortion funding, maybe there were state rights. The abortion lobby suddenly discovered state constitutions and launched litigation efforts to invent state rights to abortion funding. They had success in a number of primarily today’s blue states. New Jersey, for example, had actually enacted its own state prohibition of abortion funding, only to see it thrown out by the state’s activist Supreme Court, claiming the New Jersey Constitution of 1947 (enacted when the Garden State still criminalized abortion) actually required its funding. Trenton’s been paying ever since.

The state discovery of abortion rights is not, however, a mere historical footnote. In the wake of the 2022 Dobbs decision that overturned Roe and returned abortion regulation to state control, abortion advocates discovered another tool in the legal toolbox to advance their cause: initiative-and-referendum (I & R). Using I & R, they have had broad successes in securing public referendum approval of “right of reproductive freedom” state constitutional amendments ensconcing abortion-on-demand in places like Michigan and Ohio. This year’s target is Virginia, where a state constitutional amendment is on the ballot.

When these amendments define abortion as a “fundamental right” which cannot be “burdened” absent compelling state reasons and in the least restrictive way possible, the door is clearly open to demanding judicial imposition of state abortion funding. These amendments are the legal equivalent of abandoning Bill Clinton’s “safe, legal, and rare” mantra about abortion in favor of “shout your abortion!” They eliminate any suggestion that the state can regard abortion as anything but an unalloyed good. In that respect, they exceed Roe v. Wade, which they often claim merely to codify. Roe, after all, paid lip service to the value of the fetus’s “potential life.” These amendments make clear: there is no such value.

Under such conditions, it would be difficult to imagine a state that funds any other kinds of medical procedures for indigent “birthing persons” to be able to segregate out abortion without violating the state constitutional ban against “unduly burdening” this “fundamental right.” And, as a constitutional amendment, policymaking discretion is essentially absent: A state legislature would have to fund abortion, whether it wanted to or not (Virginia’s blue legislature will want to) by judicial order.

Fifty years after the first enactment of the Hyde Amendment, basic questions of Constitutional order — rights v. policy choices, separation of powers, state v. federal jurisdiction, federal v. state constitutions — all come back into play. What Hyde achieved is being eroded by state constitutional amendments, few of whose proponents admit to the funding agenda they intend to pursue. On this golden anniversary, it might be a good thing to examine these amendments more closely.