Abortion was on the minds of many voters during the 2022 midterm elections. Historically, regardless of whether a person was pro-choice or pro-life, one thing most Democrats and Republicans agreed upon was that taxpayers should not be forced to pay for abortion. But support for this position by Democrats has been waning in recent years. After the Supreme Court’s June Dobbs decision overturned Roe v. Wade, the Biden administration has sought new and creative ways to use the federal government to promote, provide and pay for abortion — all on the taxpayer’s dime.
One major legal impediment to the Biden administration’s pro-abortion agenda is the Hyde Amendment — a longstanding appropriations provision with bipartisan support (at least until recently) that restricts federal health dollars from paying for abortion. (Additional federal government programs are subject to other congressional restrictions.)
Originally passed in 1976, the text of the Hyde Amendment, named after sponsor Rep. Henry Hyde (R-Ill.), has changed some over the years. The current text states “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.”
The constitutionality of the Hyde Amendment was upheld, even under the now defunct Roe regime, by the Supreme Court in the 1980 case Harris v. McRae. In his brief defending the Hyde Amendment before the Court, Hyde explained that “the Hyde Amendment withholds governmental support for abortion decisions.”
President Biden was once a stalwart supporter of the Hyde Amendment and consistently voted in support of appropriation bills containing it. In a 1994 letter to a concerned constituent who requested, “Please don’t force me to pay for abortions against my conscience,” Biden replied, “I agree with you.” He explained “those of us who are opposed to abortions should not be compelled to pay for them.”
My, how times have changed.
Biden flipped his position on the Hyde Amendment during his 2020 presidential campaign. And as president, Biden has doubled down on his support of federally-facilitated and taxpayer-funded abortion with an emphasis on abortion-related travel.
Despite the text of Hyde prohibiting federal funding “for any abortion,” the Biden administration conveniently decided post-Dobbs that this prohibition does not include expenses for travel to receive an abortion.
If this is true, taxpayers could be required to pay for not only abortion travel but also abortion counseling and a host of other abortion-related expenses, as long it is not the medical procedure itself. Like Planned Parenthood’s infamous 3 percent abortion calculation, abortion expenses could be itemized so that federal funding is restricted only for the final act of inserting the abortion instrument into a woman’s uterus or handing a woman abortion pills.
This is like saying a school cut funding for basketball (“no school funds shall pay for any basketball”), but then turning around and saying it could still pay for the team’s uniforms, practice space, coaches or, for that matter, bus ride for the team to play a basketball game across state lines. Paying for the basketball team’s uniforms, practice space, coaches and bus ride to a basketball game is effectively paying for basketball. Likewise, paying for travel to receive an abortion is effectively paying for abortion.
There would be no abortion but for the travel, and no travel costs but for abortion. Thus, travel for abortion is an abortion expense and funding for abortion.
Nevertheless, the once-respected Office of Legal Counsel (OLC) in the Department of Justice (DOJ), likely at the bidding of the White House, rubberstamped the Biden administration’s interpretation of Hyde as not prohibiting federal funding for travel to obtain abortion.
The Biden administration’s novel interpretation of the Hyde Amendment post-Dobbs is politically expedient and highly suspect. If the Hyde Amendment allows for abortion travel funding as the OLC opinion and the Biden administration suggests, it is surprising other pro-abortion rights Democratic administrations failed to recognize and capitalize on this giant loophole.
What is not new is the Biden administration’s willingness to bend the law when it comes to abortion. Since Dobbs, Biden’s DOJ has sued to invalidate a state law protecting unborn life under the Emergency Medical Treatment & Labor Act (EMTALA), even though EMTALA explicitly protects an “unborn child.” Likewise, the Department of Veterans Affairs (VA) issued an interim final rule allowing the VA to provide taxpayer funded abortions, even in pro-life states, despite a federal law prohibiting the VA from providing abortion. The VA, with OLC’s blessing, claims the law has been “overtaken.”
Abortion, and specifically abortion funding, will likely continue to be at the forefront of federal politics. The scope of taxpayer funding for abortion is expected to arise during the upcoming debates over fiscal year 2023 appropriations, in the 2023 Congress and in court challenges to agency actions.
Rachel N. Morrison is an attorney and fellow at the Ethics and Public Policy Center, where she works on EPPC’s HHS Accountability Project. Natalie Dodson is a legislative and regulatory affairs associate and member of the Ethics and Public Policy Center’s HHS Accountability Project.