HHS has taken a lot of aggressive positions under this administration, but this may be its most ludicrous.
Recently, the Biden administration's Department of Health and Human Services released a little-known Indian Health Service (IHS) rule that eliminates regulations against that subagency funding abortions.
The rule’s nondescript title, “Removal of Outdated Regulations,” offers little information about its subject matter. Indeed, to the average individual not monitoring regulatory actions, this rule may seem like just another routine bureaucratic action.
In truth, it is anything but that. Indeed, this rule touches on the most divisive hot-button issue in American politics and represents the next step in the Biden administration’s abortion agenda.
After the Supreme Court overturned the Roe v. Wade abortion decision, President Biden pledged to do “everything in his power to defend reproductive rights.” Since then, his administration has done just that, sidestepping Congress and using the executive branch unilaterally and unlawfully in the process. Perhaps most arresting are Biden’s efforts to sidestep federal laws that explicitly prohibit the federal government from funding abortions.
The most well-known of these laws is the Hyde Amendment, a longstanding appropriations provision that restricts federal health dollars from paying for abortion. The amendment’s text has changed slightly 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.”
In September 2022, the Department of Justice Office of Legal Counsel rubber-stamped the Biden Administration and HHS’s position that the Hyde Amendment did not prohibit HHS from funding transportation for abortion. Although the Hyde Amendment has been around since 1979, it was only then that the Biden administration claimed the Hyde Amendment restricts funding solely for the abortion procedure itself; that it still allows HHS to pay for abortion-related expenses, such as transportation and lodging.
But then, at the end of April, HHS’s Indian Health Service misinterpreted the Hyde Amendment again, this time claiming that, “the current IHS regulation does not align with the current text of the Hyde Amendment.” The agency attempted to argue that, because the Hyde Amendment was “revised” after the 1982 regulations to include exceptions for rape and incest, its regulations prohibiting federal funding for abortion are “outdated” and do “not align” with the amendment.
This is where the agency gets the Hyde Amendment wrong. In order to justify removing these regulations, IHS has implied that the Hyde Amendment actually requires funding for abortions in the cases of rape and incest.
But the Hyde Amendment is not a statute requiring funding for anything. It prohibits federal abortion funding, with specific exceptions. To put it another way, Hyde is a ceiling, not a floor. It does not require funding for any abortion; it merely bars funding for most abortions.
HHS has taken a lot of aggressive positions under this administration, but this may be its most ludicrous — that the Hyde Amendment, first introduced by the celebrated pro-life leader Henry Hyde to bar taxpayer funding of abortions, positively requires federal agencies to pay for abortions.
Without any explanation, IHS also removed other regulations that do not have anything to do with the Hyde Amendment, including regulations that explicitly allowed funding for medical treatments for ectopic pregnancies and recordkeeping requirements to ensure that no abortions were performed with IHS funds unless a doctor had certified that “the life of the mother would be endangered if the fetus were carried to term.”
IHS's final rule ignored public comments that pointed out that it was misinterpreting the Hyde Amendment. Although IHS offered no justification for this rulemaking other than its claims about the Hyde Amendment, when commentators pointed out that IHS was misconstruing the effect of this law, IHS claimed that their remarks were irrelevant. The agency inexplicably stated that “comments about the substance and application of the Hyde Amendment itself are outside of the scope of this rulemaking,” a remark that was repeated four times in the five-page final rule.
The agency’s failure to respond to substantive comments and its refusal to justify its rule change is already striking, but the Biden administration's attempt to turn the Hyde Amendment into an abortion funding mandate is outright shocking. The only clear message in this most recent rulemaking is that Biden's administration will not let anything get in the way of its radical abortion agenda.
Eric Kniffin and Natalie Dodson serve in the Ethics and Public Policy Center's HHS Accountability Project. Eric also served as an attorney at the Justice Department’s Civil Rights Division under presidents George W. Bush and Obama.
