The Department of Justice (DOJ) has released an opinion from the Office of Legal Counsel (OLC) regarding one of President Trump’s executive orders (EO), which reversed two Biden administration orders related to the Hyde Amendment.
The Hyde Amendment is a pro-life rider created in 1976 putting in place “annual funding restrictions that Congress has regularly included in the annual appropriations acts for the Departments of Labor, Health and Human Services, and Education, and related agencies.” Hyde prevents federal dollars from funding most abortions in the United States, and has been credited with saving millions of lives from abortion.
In its opinion, the OLC expanded upon how the Biden administration had made Hyde too narrow, thereby allowing abortion-related costs — such as abortion travel — to be covered by taxpayer dollars.
Key Takeaways:
- Under Biden’s Executive Order 14079, signed in August of 2022, abortion was classified as “health care.”
- With this EO, Medicaid funds could be used to pay for travel costs related to induced abortions.
- After his inauguration, Trump issued his own EO rescinding Biden’s orders and reaffirming the Hyde Amendment.
- The DOJ also asked for the OLC to consider the matter, and it has now published a memorandum on the issue.
The Backstory:
After the fall of Roe v. Wade in 2022, the Biden administration pledged to do all it could to promote and protect access to abortion. This included the issuance of an executive order commanding Health and Human Services (HHS) Secretary Xavier Becerra “to consider action to advance access to reproductive healthcare services.”
This was to include the use of waivers, allowing pro-abortion states to use Medicaid coverage for out-of-state residents, thereby using taxpayer dollars to fund abortion travel.
At the time, the OLC under the Biden administration issued the opinion that the Hyde Amendment did not apply to transportation or ancillary services related to abortion — meaning HHS could pay for things like travel related to abortion without paying for the abortion itself.
But Trump’s 2025 order rescinded Biden’s, and the White House released a statement saying the new order had been put into place to end violations of the Hyde Amendment.
“[F]or nearly five decades, Congress has enacted the Hyde Amendment and a series of additional laws to protect taxpayers from being forced to pay for abortion,” the statement said. “Contrary to this longstanding commonsense policy, the previous administration embedded federal funding of elective abortion in a wide variety of government programs.”
However, Trump also asked the OLC to examine his EO and revisit its interpretation of the Biden policy.
The Details:
In its opinion, the OLC detailed that, upon further examination, the Hyde Amendment bars taxpayer funding from being used for ancillary services relating to abortion.
“We agree that the 2022 Opinion took an unduly narrow view of the text of the relevant appropriations rider. We therefore think it appropriate to withdraw that opinion, which we consider to be inconsistent with the traditional tools of statutory interpretation employed by the Supreme Court and this Office,” the opinion began, noting that the Hyde Amendment had been in place for decades with expansions barring covered funds from being used on any “health benefits coverage that includes coverage of abortion.” Specifically, the opinion pointed to a 1993 change which stated:
None of the funds appropriated under this Act shall be expended for any abortion except when it is made known to the Federal entity or official to which funds are appropriated under this Act that such procedure is necessary to save the life of the mother or that the pregnancy is the result of an act of rape or incest.
The opinion said that the OLC’s 2022 decision did not take the 1993 change into consideration when siding with the Biden administration.
The Bottom Line:
“[W]e conclude that the 2022 Opinion deviated from how courts and this Office analyze statutes when it dissected the phrase ‘expended for any abortion’ into its constituent pieces and gave a narrow, and overly literal, view of each word without adequately considering the phrase as a whole and in context,” it said.
“Having reexamined the issue, we conclude that the Hyde Amendment is best read to prohibit the use of federal funds to provide ancillary services necessary to receive an abortion. The 2022 Opinion’s contrary conclusion is withdrawn” (emphasis added).
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