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.