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

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

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.