Future Democrat President Could Cancel Hyde Amendment, Make Americans Fund Abortions
The Supreme Court’s 6-3 decision last week in the consolidated lawsuits (Learning Resources, Inc. v. Trump) challenging President Trump’s imposition of tariffs around the world cannot be said to be a salient pro-life matter. The arguments over the impact of tax levies and expenditures have an impact when their direct effect is on families (e.g., child tax credits and the new Trump saving accounts), but cases can be made on either side of the tariff debate that families will win or lose over the short- and long-run.
But there is a larger debate to be had over the underlying struggle in the great tariff clinch, and that is whether policy decisions on matters of taxation and spending are to be reserved largely for the legislative branch or for the executive branch — focusing on its views of national priorities, emergencies, or other exigencies.
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In his concurrence in the ruling last week, Justice Neil Gorsuch laid out some detailed history of the laws and practices surrounding presidential powers and trade, but in the most quoted instances from his decision, he set forth his views on the broader stakes in answering the question “Who decides?” regarding tariff policy. Gorsuch’s eloquently stated view is that, regarding the particular tariffs at issue, the Constitution vests authority in the Congress of the United States to determine when and to what degree it is delegating authority to the chief executive. If it were, in fact, delegating an expansive power to the president, it would do so, he contends, with language that is not ambiguous, especially when the proposed delegation is very broad and not time-limited. Gorsuch wrote, “These considerations apply with particular force where, as here, the purported delegation involves the core congressional power of the purse. Congressional practice confirms as much. When Congress has delegated its tariff powers, it has done so in explicit terms and subject to strict limits.”
The struggle here, then, is a much wider one. The Trump administration’s totality of executive actions places the president among the top five presidents in U.S. history, behind only FDR, Harry Truman (in one term), Herbert Hoover, and Woodrow Wilson. Most orders address what are undoubtedly major issues of war and peace and the world economy. How does this relate to the right to life?
Perhaps the clearest answer has to do with how some of President Trump’s other actions relate to the spending power. One of the most precious powers in the possession of Congress is its Article 1, Section 9, Clause 7 spending authority. The sentences that regularly appear in appropriations bills that begin with the phrase “none of the funds” are a historical redoubt that have protected the role of Congress in many situations. The Hyde Amendment, in various forms, has limited the use of federal funds for nearly all abortions since 1976. The Boland Amendment, a provision added to the annual defense appropriations bill in the mid-1980s, plagued the Reagan administration and led to a confrontation with Congress over the administration’s covert and third-party funding of military action against the Sandinistas.
The Trump administration’s claims regarding its authority to corral or commit funding are expansive. Last November, President Trump promised Americans of certain income levels a tariff rebate of $2,000 per family. He announced last week his intention for the U.S. to make a $10 billion contribution to his newly formed Board of Peace, membership in which reportedly requires a threshold gift of $1 billion from each participating regime. Some executive branch actions have proceeded with the deployment of private donations, like the demolition of the White House East Wing and the construction of a White House ballroom. Presumably, these tariffs and Board of Peace expenditures will require congressional approval via the regular authorization or appropriations process (even the White House ballroom will need to be staffed, stocked, and maintained for decades to come with funding plans to be determined, but with taxpayers assuredly on the hook).
The question arises, will these presidential pledges be fulfilled — and by what mechanism? The spending process operates in reverse too — spending authorized or appropriated by Congress has gone unspent or been repurposed in Trump’s second term. Democrats have not distinguished themselves either, failing to adhere to a standard of congressional prerogatives over spending, war-making, and other matters.
In the abortion context, despite the clear intent of the Hyde Amendment, which has saved at least 2,650,000 lives, the Biden administration finessed policy at the Veterans Administration after the 2022 Dobbs decision and issued regulations allowing the VA to fund abortions and abortion counseling. Late last year, the Trump Justice Department issued an opinion reinstating the Hyde Amendment standard for financing of abortion or abortion counseling, which had been in force since 1999. On a far more dramatic level, the Biden administration was sternly rebuffed by the Supreme Court in 2023 when it unilaterally tried to cancel an estimated $430 billion in student loan debt, a scheme it had conveniently announced in an election year.
The permissive Biden policy at the VA merely tests the waters on reversing abortion funding limitations. It is far from fanciful to see that, in an environment where the executive feels free to disrespect Congress’s control of the “power of the purse,” a new pro-abortion administration might take the step of subverting Hyde by the creation of a publicly or privately funded national account. Call it, perhaps, the Board of Reproductive Freedom. Claim it is a response to a national emergency, not subject to authorization or appropriations enactments. Even if Congress were favorable to life and disposed to object to such a step on January 22, 2029 by a White House in Democratic hands, its only recourse would perhaps be to pass a government-wide statutory Hyde Amendment or renew the annual Hyde Amendments that attach to the spending bills. It may not have the votes to offer or pass such amendments, and, of course, the new president could veto them. In the meantime, President Trump’s wobbly stance on the Hyde Amendment in the context of premium tax credits under the Affordable Care Act does not breed confidence.
This is not the only scenario under which the Hyde Amendment could be subverted or canceled. But it does underscore why the result in the tariffs ruling, especially its appeal to the revival of a Congress zealous to protect its constitutional prerogatives, is indeed an important right to life concern. The legislative branch exists to ensure that laws are not created by the executive without accountability from our elected representatives. Democrats and even a few Republican faint-hearts might welcome the activism of a President Gavin Newsom (D-Calif.) or Rep. Alexandria Ocasio-Cortez (D-N.Y.) and go passive on the demise of the Hyde Amendment (and other policies) while avoiding record votes, even as they pronounce, as many are doing now, pro-life rhetoric.
The course of a nation struggling to find a consistent moral and political voice is hard to predict. But there are decades of wisdom to show that the nation is best served by a Congress drawn from men and women in every corner of the nation who do not hide behind process and are willing to debate and vote on the many issues of life, death, and liberty daily before us. Today, that should mean fresh efforts to defend the appropriations power, on both the expenditure and limitation side. It might mean as well renewing efforts to pass a Hyde Amendment that is unambiguous, government-wide, and embedded in our permanent law, as Donald Trump pledged he would do in September 2016.
Ultimately, nothing good will happen if Congress supinely watches decisions on spending, foreign affairs, and other matters hauled up to 1600 Pennsylvania Avenue. Such issues inevitably involve the president, but ultimately they must remain subject to the consent of the governed, to the whole people, to citizens at every address in America.
LifeNews Note: Chuck Donovan is a 50-year veteran of the national debate over the right to life and served from 1981-89 as a writer in the Reagan White House.He is the former Executive Vice President of Family Research Council.
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