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Will new federal abortion policies violate anti-abortion Hyde Amendment? Experts weigh in

August 7, 2023 Catholic News Agency 0
A man holds a sign at a pro-life rally in front of the Lincoln Memorial on June 24, 2023, marking the first anniversary of the U.S. Supreme Court’s Dobbs decision overturning Roe v. Wade. / Joseph Portolano/CNA

Washington, D.C. Newsroom, Aug 7, 2023 / 16:20 pm (CNA).

Two recently instituted federal abortion provisions have raised the possibility of legal challenges under the decades-old Hyde Amendment that outlaws federal funding for most abortion procedures. 

Both the U.S. Department of Justice and the Department of Veterans Affairs recently instituted new policies offering abortion coverage for employees and veterans, respectively. The Department of Justice said it would cover travel expenses for servicewomen who seek abortions out of their respective states, with the DOJ promising in February to offer coverage of “travel allowances for non-covered reproductive health care.”

The Department of Veterans Affairs also recently instituted a rule allowing VA employees “access to abortion counseling and — in certain cases — abortions to pregnant Veterans and VA beneficiaries.” Both the DOJ and the VA’s new policies were passed in the wake of last year’s Supreme Court repeal of Roe v. Wade.

The rules have generated significant blowback at the federal level. In the Senate, Alabama Sen. Tommy Tuberville has blocked the promotion of hundreds of military promotions in protest of the DOJ’s policy.

Political questions aside, it is uncertain whether the new rules run afoul of the Hyde Amendment, a longstanding provision in federal law that prohibits the government from using taxpayer dollars to fund abortion.

Named in honor of the provision’s chief sponsor, Illinois Sen. Henry Hyde, the rule — which has been updated several times since 1976 — outlaws federal abortion funding except in cases of rape, incest, or if the mother’s life or health is in danger.

Mary Ziegler, professor of law at the University of California-Davis School of Law, told CNA there’s “definitely a plausible argument under the Hyde Amendment” that the rules could run afoul of federal law. 

“I don’t know if it will work,” she said. “But it’s not a completely ridiculous argument.” A conservative shift in federal judges in recent years, she said, means federal courts ”would not be an unfriendly place to make that sort of argument.”

Challengers to the abortion policy, Ziegler said, could argue that money is ultimately “fungible,” or interchangeable within intra-department budgets. Funding travel for abortion, she said, could mean “you’re in effect subsidizing abortion, and that’s disallowed under the Hyde Amendment except for the exceptions.”

Joshua Huder, a senior fellow at the Government Affairs Institute at Georgetown University, was skeptical of the potential for the new rules to run afoul of Hyde. 

“On its face, the Hyde Amendment is attached to the Labor, HHS, and related agencies appropriations bill and affects funds only in that bill,” he said.

“So funds appropriated in other bills for other agencies (like defense or the MilCon-VA bill) would not be bound by the Hyde Amendment provision since they are separate bills.”

The Hyde Amendment has regularly been at the center of contentious political debate in the decades since its passage. The measure survived a 1980 Supreme Court challenge. Republicans in 2017 tried and failed to make the rule a permanent part of federal law. The GOP over the past decade also attempted — again unsuccessfully — to write its provisions into Affordable Care Act rules. 

During her failed 2016 campaign, Hillary Clinton proposed abolishing the Hyde Amendment; Joe Biden during his successful 2020 campaign made a similar proposal, though Democrats have not succeeded in doing so in the first two-and-a-half years of his presidency. 

Michele Swers, a professor of American government at Georgetown University, told CNA that the new abortion rules could generate intensive political fighting in Congress in the near future. 

“Republicans are clearly making the argument that these provisions run afoul of the Hyde Amendment,” she said. “With a split Congress and 60 votes needed in the Senate, I think it will be hard for Democrats or Republicans to make any changes to existing Hyde Amendment language.”

“The provisions included in the House Appropriations bills will likely fall out,” she said, “but the fight over them could end up contributing to a potential government shutdown.”

Last year’s Dobbs v. Jackson Supreme Court decision overturning Roe v. Wade will remain a powerful motivator for both factions in Congress, Swers said.

“With the Dobbs decision, Democrats see taking a strong stand for abortion rights as even more important for motivating their voters,” she said. 

Pro-life groups, meanwhile, “are very focused on these funding issues in addition to getting a commitment for a national ban of some type.”

Neither the Department of Justice nor the VA responded to queries about their new abortion rules. 


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Do your tax dollars pay for abortion? It depends on where you live

May 26, 2023 Catholic News Agency 1
Planned Parenthood hosts a rally for funding abortion for Medicaid recipients on the state capitol’s steps in January. / YouTube/Uprise RI

Washington D.C., May 26, 2023 / 09:10 am (CNA).

Last Thursday Rhode Island Gov. Daniel McKee signed a bill extending abortion coverage to Medicaid and health insurance plans used by state workers.

Rhode Island joins 16 other states funding abortion through Medicaid, despite a federal policy known as the Hyde Amendment prohibiting the use of tax dollars to pay for abortion.

Because Medicaid is jointly funded by the state and federal government, tax dollar funding for abortion through Medicaid is severely restricted in most states.

So, how can Rhode Island and these 16 other states get away with having their taxpayers subsidize abortion?

Here’s what you need to know.

What is the Hyde Amendment? 

First passed in 1976, the Hyde Amendment — named for Illinois Rep. Henry Hyde, who introduced it — is a budget policy that restricts federal tax dollars from being used for abortions.

For years the amendment enjoyed bipartisan support, with Democratic senators such as Joe Biden advocating its usage in the Senate.

Because the amendment has never been made permanent law, Congress chooses whether to include Hyde each year when passing the annual budget package.

This makes Hyde particularly vulnerable to Democratic efforts in Congress and the White House to simply drop it out of the budget. Despite this Hyde has successfully passed and been attached to every annual federal budget package since 1976.

As at least half of Medicaid funding comes from the federal government, according to a Medicaid overview recently published by the Congressional Research Service; most states do not cover abortion in their Medicaid plans.

So, how can states use tax dollars to pay for abortion? 

Robert Destro, former assistant secretary of state for the Bureau of Democracy, Human Rights, and Labor, told CNA that “the short answer is that Hyde does not govern what states do with their own money.” 

According to Destro, it’s essentially a question of state vs. federal tax dollars. 

Since 1976 Hyde restrictions have kept federal tax dollars from being used to pay for abortions.

Hyde does not, however, restrict states’ ability to use state tax dollars to pay for abortion. So, while federal funding cannot be used for abortion, state funding can.

Rhode Island’s new bill amended state law to include abortion in its Medicaid provisions. The state claims it will only use state funds to pay for abortion, thus not violating the Hyde Amendment.

“California and New York have been doing this for a long time,” Destro explained, adding that “what Rhode Island is doing is nothing new.” 

Though it may appear that states are using a legal loophole to work around Hyde, Michael New, senior associate scholar at the Charlotte Lozier Institute, told CNA that “there is no loophole.”

Normally, the federal government reimburses states for a percentage of their Medicaid expenditures at a rate called the Federal Medical Assistance Percentage.

States that want to pay for abortions through their Medicaid program could do so out of their own coffers and simply just not be reimbursed by the federal government.

While clarifying that “the federal government does not provide reimbursements or matching funds for elective abortions paid for by state Medicaid programs,” New explained that “states have always been free to use their own tax dollars to cover abortions through their own respective Medicaid programs.” 

According to a list compiled by the abortion research organization the Guttmacher Institute in March, other states covering abortion in their Medicaid plans are California, Oregon, Washington, Montana, Minnesota, Illinois, New York, Vermont, Maine, Massachusetts, Connecticut, New Jersey, Maryland, New Mexico, Alaska, and Hawaii.

This means that if you live in any of these states your tax dollars are being used to pay for abortion.

Though New said that there has been some litigation in some states to challenge the constitutionality or legality of covering abortion in a state Medicaid program, he is not aware of any current efforts challenging the practice.

“In 2017 Gov. Bruce Rauner of Illinois signed legislation requiring the state Medicaid program to cover elective abortion. The Thomas More Society, a pro-life nonprofit, subsequently sued, arguing that legislation failed to go through the proper budget process. The lawsuit was unsuccessful,” New said. 

Impact of including abortion in Medicaid

Proponents of Medicaid funding for abortion have argued that it is a necessary step to ensure abortion access for impoverished communities.

Rhode Island’s new law claims that “restrictions on abortion coverage have a disproportionate impact on low-income residents, immigrants, people of color, and young people who are already disadvantaged in their access to the resources, information, and services necessary to prevent an unintended pregnancy or to carry a healthy pregnancy to term.”

The bill concludes that “the purpose of this legislation is to promote equity in access to reproductive health care.”

Yet, pro-lifers like Dr. Ingrid Skop, an OB-GYN and vice president of the Charlotte Lozier Institute, argue that Medicaid funding for abortion amounts to “eugenic action.”

“Rather than provide the emotional, relationship, material, and financial support that women in crisis need to allow them to give birth to their children,” Skop said, “apparently, many states would prefer to rid themselves of the children of impoverished women before birth.” 


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Meet the U.S. senator holding the line on Pentagon appointments in fight over taxpayer-funded abortions

April 3, 2023 Catholic News Agency 1
Sen. Tommy Tuberville of Alabama was elected to the U.S. Senate in 2020. He was the head coach of Auburn University’s football team from 1999 to 2008. / Sen. Tommy Tuberville Facebook page.

Washington D.C., Apr 3, 2023 / 10:00 am (CNA).

The nationwide debate over abortion has spilled over into the Senate’s confirmation of military appointments, which has turned a usually simple and routine process into a battleground over the rights of unborn children. 

Republican Sen. Tommy Tuberville, R-Alabama, has blocked 184 promotions for generals and officers, which the Department of Defense (DOD) has asked the Senate to confirm. Tuberville refused to allow their confirmations by unanimous consent of the Senate, which would force Senate Majority Leader Chuck Schumer, D-New York, to bring every nominee up for a vote individually if Tuberville remains firm.

Although these confirmations are usually approved by unanimous consent on the first vote, the politicization of the DOD has shaken up the process. Tuberville stood against their confirmations because of a DOD policy that uses taxpayer money to fund travel and paid time off needed for an employee to procure an abortion. The policy also provides funds for an employee’s spouse or an employee’s dependents who are seeking an abortion. 

“Let’s be clear about what we’re talking about,” Tuberville said on the Senate floor. “We’re not talking about access to abortion. We’re talking about taxpayer funding for travel and extra pay time to get elective abortions.”

“This policy includes spouses and dependents,” the senator continued. “We’re talking about taxpayer funding for somebody’s kids to get an abortion in another state. This has never been in the policy until now because Congress has ensured that the Pentagon cannot perform or facilitate abortions, except in legal circumstances and limited.” 

Current law prohibits the use of federal funds for abortion in most cases under the Hyde Amendment, which has been in effect since 1980. However, the Hyde Amendment does not explicitly prohibit the federal government from using taxpayer funds to support an employee’s travel expenses or time off for an abortion. Although Republicans have introduced bills that would block federal funding for this purpose, those proposals have been rejected by Democratic lawmakers.

Tuberville’s decision to hold up military appointments has led to attacks from Schumer and other Democrats who have urged everyone in the Senate to support unanimous consent.

“The senator from Alabama continues his hold on more than 180 … military promotions, blatantly ignoring many warnings of the harm he is causing to our national security,” Schumer said on the Senate floor. “It’s reckless; it’s just reckless.”

Schumer quoted Secretary of Defense Lloyd Austin, who said that holding up the nominations “actually creates a ripple effect through the force that makes us far less ready than we need to be.”

Tuberville has rejected those claims, stating on the Senate floor that “this entire line of attack on me is absolutely false” and argued that the military suffers from a shortage of recruits but not a shortage of generals. He added that Democrats can hold individual votes on each nominee if they want to do so.

“Every single one of these nominees can receive a vote if Sen. Schumer wants it,” Tuberville said. “… If Democrats are so worried about these nominations, let’s vote. If we’re not going to vote on taxpayer-funded abortion, then let’s vote on these nominees. Voting is our job. It’s not much to ask of the United States Senate to do our job to vote.” 

The senator also said his refusal to allow these nominations to go through with unanimous consent is not unprecedented. 

“My hold is far from unprecedented,” Tuberville said. “In fact, Sen. [Michael] Bennet himself threatened to do this exact same thing just a few months ago. … Two years ago, we had a senator from Illinois put a hold on 1,000 nominees over the promotion of one single officer.”

After he took his stand, some Republican lawmakers have come out to support Tuberville. 

“Until these policies are rescinded, I’m going to also have to consider holds against DOD nominees in solidarity with my colleagues,” Sen. Ted Budd, R-North Carolina, told Austin during a hearing. “Mr. Secretary, you can fix this … in nearly an instant. I would encourage that.”

Others, such as Sen. Mike Rounds, R-South Dakota, also came to his aid. 

“I think he’s right in his concern for what the department is doing because we have never agreed to fund abortions in the past, and on this particular case, it’s a pretty fine line when you’re funding to get them someplace to get an abortion,” Rounds told The Hill. 

As the Senate enters into recess for Easter, Tuberville intends to stand firm in his approach. 

“The Democrats are in panic over the idea of taking more votes,” the senator said. “I don’t mind working a full week; I worked all my life. I’ve had a full-time job. I’ll stay here until hell freezes over. I’m not going to be intimidated by a campaign of selective outrage.”