Should taxpayers pay for travel to have an abortion?

Abortion was on many voters’ minds during the 2022 midterm elections. Historically, regardless of whether a person was pro-choice or pro-life, the one thing most Democrats and Republicans agreed on was that taxpayers should not be forced to pay for abortions. But Democrat support for this position has been waning in recent years. After the Supreme Court’s June Dobbs decision to overturn Roe v. Wade, the Biden administration has sought innovative new ways to use the federal government to promote, provide, and pay for abortion—all for the taxpayer’s dime.

One of the main legal hurdles to the Biden administration’s pro-abortion agenda is the Hyde Amendment — a longstanding appropriation provision with bipartisan support (at least until recently) that restricted federal health money from paying for abortions. (Additional federal government programs are subject to other congressional restrictions.)

Originally enacted in 1976, the text of the Hyde Amendment, named after sponsor Rep. Henry Hyde (R-Illinois), has changed some over the years. The current provision states, “None of the funds appropriated in this Act, nor any of the trust funds in any trust fund to which funds in this Act are designated, shall be expended for any abortion.”

The Supreme Court upheld the constitutionality of the Hyde Amendment, even under the now defunct Roe regime, in the 1980 case of Harris v. McCrae. In briefing his defense of the Hyde Amendment to the Court, Hyde explained that “the Hyde Amendment obscures government support for abortion decisions.”

President Biden was once a staunch supporter of the Hyde Amendment and has consistently voted in support of appropriation bills that contain it. In a 1994 letter to a concerned voter who asked, “Please don’t force me to pay for abortions against my conscience,” Biden replied, “I agree with you.” “Those of us who oppose abortions should not be forced to pay for them,” he explained.

My how times have changed.

Biden reversed his stance on the Hyde Amendment during his 2020 presidential campaign. As president, Biden has doubled down on his support for federally accessible, taxpayer-funded abortion with a focus on abortion-related travel.

Despite Hyde’s provision banning federal funding for “any abortion,” the Biden administration conveniently decided after Dobbs that this ban did not include travel expenses to receive an abortion.

If this were true, the taxpayer could be required to pay not only the travel costs for the abortion but also the costs of abortion counseling and a host of other expenses related to the abortion, as long as it is not the medical procedure itself. Like Planned Parenthood’s infamous abortion rate of 3 percent, abortion expenses can be categorized so that federal funding is limited only to the final act of inserting the abortion instrument into a woman’s womb or delivering the abortion pill to the woman.

This is like saying the school cut funding for basketball (“you won’t pay any school money for any basketball”), but then turns around and says it can still pay for the team’s uniforms, practice space, coaches, or whatever Case, riding the bus for the team to play a game of basketball across state lines. Paying for basketball team uniforms, practice space, coaches, and a bus ride to a basketball game is effectively paying for basketball. Similarly, paying to travel for an abortion is actually paying for the abortion.

There would be no abortion without travel, and no travel costs except for abortion. Thus, traveling for an abortion is an abortion expense and abortion financing.

However, the once respected Office of Legal Counsel (OLC) at the DOJ, likely on a White House bid, has sealed the Biden administration’s interpretation of Hyde as not banning federal funding for abortion travel.

The Biden administration’s new interpretation of the post-Dobbs Hyde Amendment is politically expedient and highly questionable. If the Hyde Amendment allows travel funding for abortion as the Biden administration and the OLC’s opinion is proposing, it is surprising that other pro-abortion Democratic administrations have failed to recognize and take advantage of this giant loophole.

What is not new is the Biden administration’s desire to amend the law when it comes to abortion. Since Dobbs, Biden’s Justice Department has sued to invalidate a state law protecting unborn life under the Emergency Medical Treatment and Labor Act (EMTALA), even though EMTALA explicitly protects “the unborn child.” Similarly, the Department of Veterans Affairs (VA) issued a temporary final rule allowing the VA to provide taxpayer-funded abortions, even in pro-life states, despite a federal law prohibiting the VA from providing abortions. The VA claims, with the OLC’s blessing, that the law has been “bypassed.”

Abortion, and specifically abortion funding, is likely to remain at the forefront of federal policy. The scope of taxpayer funding for abortion is expected to emerge during upcoming debates over fiscal year 2023 appropriations, in Congress 2023 and in court challenges to the agency’s actions.

Rachel N. Morrison is an attorney and fellow at the Center for Ethics and Public Policy, where she works on EPPC’s HHS Accountability Project. Natalie Dodson is a fellow in legislative and regulatory affairs and a member of the HHS Accountability Project of the Center for Ethics and Public Policy.

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