Last year the U.S. Supreme Court overturned Roe v. Wade in the Dobbs v. Jackson Women’s Health Organization decision. Since then, the Biden Administration has waged a campaign of massive resistance to the Dobbs decision. It has—in some cases lawlessly—undermined state and federal pro-life laws. Across the government, this Administration has used executive orders, agency guidance, and the regulatory process to promote abortion and abortion travel using taxpayer dollars, and to interfere with states enforcing pro-life laws.
As explained in this Backgrounder about the fiscal year 2024 appropriations package, while the House legislation purports to reduce spending to a top-line of $1.471 trillion, the actual spending is closer to $1.59 trillion. At the time of this writing, the House’s appropriations legislation seeks to rescind $115 billion in spending that can then be used to further increase the top-line spending levels across all appropriations bills. This increase represents an unprecedented expansion of rescissions as a budgetary tool to add spending within appropriations caps.
Though such riders are opposed by President Joe Biden, appropriations bills rightly retain standard life and conscience protections such as the Hyde Amendment, which separates taxpayer dollars from abortions in domestic and international programs. Congress must go on offense—beyond the status quo of these long-standing pro-life policy riders—because it is clear that the Biden Administration will continue using the administrative state to achieve what it cannot accomplish through the democratic processes.
Congress has a duty to advance robust pro-life policies in the 118th Congress, and the appropriations process is its best opportunity. Provisions of the following spending bills will be reviewed:
- The House Agriculture bill;
- The Department of Defense Appropriations Act;
- The Military Construction and Veterans Affairs appropriations bill;
- The Homeland Security bill;
- The Commerce-Justice-Science bill;
- The Financial Services and General Government bill;
- The State and Foreign Operations bill; and
- The Labor-Health and Human Services bill (HHS bill).
Defunding the Biden Administration’s Aggressive Abortion Policies
Abortion Drugs in the Agriculture Bill. Congress should limit the interstate flow of dangerous chemical abortion drugs. To that end, the House Agriculture bill rightly nullifies the Food and Drug Administration’s (FDA’s) recent actions to loosen safety protocols for dangerous chemical abortion pills.
Specifically, the FDA ended the requirement that chemical abortion drugs be dispensed in person after visiting a doctor to screen for complications. The FDA has effectively approved telemedicine abortion consultations, abortion pills by mail, and women and girls having risky do-it-yourself chemical abortions without doctors or nurses present.
Abortion pills are the next pro-life battlefield, and Congress has an important role to play. In the post-Dobbs landscape, many states have passed new pro-life laws. But abortion pill–pushers, especially in pro-abortion states, undermine these efforts by promoting and trafficking chemical abortion drugs across state lines to pro-life states.
Congress should step in and exercise its authority over the FDA. The House Agriculture bill is a start: Congress can defund the ability of the FDA to implement the watered-down safety protocol changes or any similar regulations that allow for mail-order chemical abortions. Congress should also be proactive because the abortion lobby seeks more. They are already saying the quiet part out loud, advocating for abortion pills to be available over the counter. Congress should prohibit the FDA from approving or even accepting applications for an over-the-counter abortion pill.
DOD–Sponsored Abortion Travel. In October 2022, the Department of Defense (DOD) issued a memorandum that instructs employees to establish “travel and transportation allowances for Service members and their dependents” for abortion if such services are not available locally. This directive circumvents Congress in order to use taxpayer funds to pay for abortion. This policy would reimburse DOD staff who face criminal fines for violating state protections of unborn life.
The DOD appropriations bill affirmatively revokes this policy. Americans across the political spectrum do not want their tax dollars to pay for elective abortions or to cover fines of criminal abortionists. If the Biden Administration and Senate Democrats wish to challenge this consensus, the National Defense Authorization Act is the appropriate venue to make policy—not a DOD directive.
Space Command and the Department of Defense. The defense bill also specifies that funds used to build Space Command headquarters in Huntsville, Alabama, must be used there—as intended. This language is a strong response to the left’s calls to move Space Command headquarters to another state in retaliation for Senator Tommy Tuberville’s (R–AL) opposition to the DOD’s abortion travel policy. For months, Senator Tuberville has placed a “hold” on military flag and general officer promotions until the DOD reverses its illegal actions. Taxpayer-funded elective abortions have nothing to do with military readiness.
The defense bill riders are a necessary response to the DOD’s illegal actions.
Illegal Abortion Funding at the VA. In September 2022, the Department of Veterans Affairs issued an interim final rule providing for immediate abortion procedures and abortion referrals and counseling to veterans at Veterans Affairs (VA) medical facilities. This policy is flatly prohibited by existing law, yet the department abused its authority to ram the rule through without even allowing public comment.
Language included in the Military Construction and Veterans Affairs appropriations bill rightly defunds the interim final rule. It should be strengthened, however, by striking the addition of funding for abortions beyond the life-of-the-mother exception, which are currently not funded under the 1992 law governing VA medical benefits.
ICE Detainees. The homeland security bill prohibits Immigration and Customs Enforcement (ICE) from paying for or facilitating elective abortions. It also protects conscience rights by saying ICE funds cannot be used to require anyone to perform or facilitate an abortion.
The Biden Administration tolerates—even encourages—illegal immigration at the expense of the American people and national security. At the very least, the American people should not assist ICE detainees in aborting their children on the taxpayers’ dime. This bill should clarify that the prohibition on facilitating an abortion means that a detainee cannot be moved from a pro-life state to an abortion sanctuary state for purposes of obtaining an abortion.
Department of Justice. The Commerce-Justice-Science bill defunds the Biden Administration’s Reproductive Rights Task Force and prohibits the Department of Justice from participating in litigation against pro-life state laws.
The Free Access to Clinic Entrances (FACE) Act prohibits physically obstructing, injuring, intimidating, or interfering with anyone “obtaining or providing reproductive health services.” However, the Department of Justice (DOJ) has weaponized this law against peaceful pro-life Americans. Meanwhile, the DOJ has been impotent in enforcing the FACE Act protection for “exercising…the First Amendment right of religious freedom at a place of religious worship” by failing to respond to attacks against churches and pro-life pregnancy clinics, to which FACE Act provisions also apply.
Congress should not allow any funding or funding increases for departments and offices charged with carrying out the Biden Administration’s actions—or which participate in the deliberate inaction that gives anti-life criminal conduct a pass.
Oversight of D.C. Life-Related Laws
Assisted Suicide. The Financial Services and General Government bill repeals the District of Columbia’s Death with Dignity Act of 2016. The government’s role should be to prevent suicides, not facilitate them. DC’s assisted suicide law endangers the weak and vulnerable, corrupts the practice of medicine and the doctor–patient relationship, compromises the family and intergenerational commitments, and betrays human dignity and equality before the law.
Partial Birth Abortion. The Financial Service and General Government bill also requires DC to enforce the federal Partial Birth Abortion Ban Act by establishing reporting requirements and oversight measures. In March 2022, pro-life activists acquired a medical waste box leaving Washington Surgi-Clinic (which is operated by notorious late-term abortionist Cesare Santangelo). Inside the box were the remains of 110 first-trimester babies and five preemie-sized babies.
DC has no gestational limits on abortion. Medical experts estimated that the five larger babies were in the second or third trimester, that some may have been born alive, and at least one may have been the victim of an illegal partial birth abortion. Members of Congress have demanded that the DC medical examiner conduct autopsies on these children to determine their manner of death. One year after the horrific discovery, the DC Metropolitan Police confirmed that an investigation is ongoing. The mayor’s office, which is handling communications, has refused to provide information about whether any autopsies have occurred.
Each of these babies was the victim of violence, and he or she deserves justice. If DC will not come clean about whether partial birth abortion is occurring in Congress’ backyard, Congress has a duty to step in.
Exporting Pro-Life Values
Global Health. The State and Foreign Operations bill maintains the long-standing principle of separating global health funding from abortion by retaining:
- The Helms Amendment, which prohibits foreign aid funds from being spent on abortions;
- The Siljander Amendment, which prohibits foreign aid funds from being spent to lobby for abortion in other countries; and
- The Kemp–Kasten Amendment, which allows the President to withhold federal funding from any organization that “supports or participates in the management of a program of coercive abortion or involuntary sterilization.”
The State and Foreign Operations bill reduces funding in a global health section for “family planning/reproductive health” by $114 million and removes a stipulation that these funds be used “in areas where population growth threatens biodiversity or endangered species.” This problematic language portrays humanity as a parasite on the planet.
In the 18th century, Thomas Malthus argued that population growth would overtake humans’ ability to grow food and other resources, ending in mass starvation. Of course, history proved Malthus wrong: People’s ability to innovate and adapt instead has led to vast expansions of the ability to provide resources for the world’s burgeoning population. Each new generation is more prosperous and has more access to food and water than the last.
Dire Malthusian predictions were wrong in the 1700s, were wrong in the 1970s, and they are still wrong in the 21st century. In practice, authoritarian responses to “overpopulation” have caused significant human rights abuses—for instance, China’s devastating one-child (later, two-child) policy.
This bill rightly removes references to family planning funding being used as a tool for population control.
United Nations Population Fund. The State and Foreign Operations bill rightly defunds the United Nations Population Fund (UNFPA) because President Biden has failed to invoke the Kemp–Kasten Amendment. First enacted in 1985, this provision has been included in every foreign appropriations bill since then. The Kemp–Kasten Amendment authorizes the President to withhold federal funding from any organization that “supports or participates in the management of a program of coercive abortion or involuntary sterilization.” In practice, the U.S. provides funding to the UNFPA under Democratic Presidents and not under Republican Presidents. As one of his initial acts after taking office, President Biden restored funding for the UNFPA despite its complicity in China’s coercive population-control policies, which include forced abortion and sterilization.
Protecting Life in Global Health Assistance. The State and Foreign Operations bill includes language that effectively restores the Protecting Life in Global Health Assistance Policy (PLGHA). This policy provides a guardrail to protect American taxpayers from funding international organizations that perform and promote abortions.
The PLGHA is an expanded version of the earlier Mexico City Policy first enacted by President Ronald Reagan and invoked by every Republican President since. The policy does not reduce funding for global health assistance. Rather, it ensures that U.S. dollars are not entangled with the abortion industry and that American taxpayers do not subsidize nongovernmental organizations that do not respect innocent human life.
Defunding Abortion and Abortion Providers
Congress should—at a bare minimum—pass HHS funding that includes long-standing protections like the Hyde Amendment (which prohibits tax dollars from funding elective abortions) and the Weldon Amendment (which protects health care providers from discrimination if they choose not to participate in abortions).
But the status quo is not enough.
Congress should demand that HHS account for every penny of taxpayer dollars that has directly or indirectly promoted or paid for abortion since Dobbs and ensure that no funding promotes or pays for abortion going forward. The text released so far is a good start. The Departments of Labor, Health and Human Services, and Education, and Related Agencies bill:
- Eliminates funding for programs like the Title X Family Planning Program, which has been allowed to morph into a slush fund for abortion providers like Planned Parenthood, and prohibits any requirements that Title X projects refer for abortions.
- Prohibits funding for an abortion hotline. Congress previously allocated $1.5 million in funding to the Office of Population Affairs via Title X grant money for establishing an abortion hotline. The hotline is meant to provide abortion referrals. This clearly violates the spirit, if not the letter, of Title X’s prohibition on supporting programs in which abortion is a method of family planning.
- Prohibits taxpayer funding for all abortion providers such as Planned Parenthood, which received over $670 million in total government revenue in its 2021–2022 annual report.
- Prohibits funding to implement two executive orders signed in response to the Dobbs decision that promote abortion across the federal government.
- Requires a public report of all abortions paid for under the exceptions in the Hyde Amendment.
In addition to restraining abortion funding, the HHS bill promotes a culture of life by:
- Prohibiting research using fetal tissue obtained from elective abortions. This research is unethical, antiquated, and unnecessary.
- Enshrining a private right of action for victims alleging conscience violations. Such a right does not guarantee a certain outcome, but it would allow Americans to have their day in court rather than relying on, for relief, potentially hostile government bureaucrats in the HHS Office for Civil Rights.
Room For Improvement: Labor, Health and Human Services, and Education
Congress should leave no stone unturned ensuring that taxpayer dollars do not directly or indirectly promote abortion. To wit, Congress should:
- Make clear that no federal funds are allocated for abortion travel.
- Ensure that any doula training programs explicitly exclude training related to abortion.
- Prohibit HHS from using taxpayer resources to promote a third-party abortion finder website, which advertises how to obtain funding and travel assistance for abortion (including late-term abortion). Such a website could also assist minors to obtain abortions without parental consent.
- Prohibit the HHS Office of Refugee Resettlement from paying for, facilitating, or allowing abortions for immigrants under its care.
Congress should prohibit HHS from using funds to carry out anti-life regulations and proposed regulations, including:
- The rule that reversed the Trump Administration’s rule requiring grantees funded through Title X, the federal family planning program, to maintain strict physical and financial separation between Title X activities and abortion.
- The rule that reversed the Trump Administration’s rule requiring insurers to collect a separate payment for elective abortion coverage in qualified health plans under the Obamacare health insurance exchanges.
- The proposed rule on § 1557 of Obamacare that would elevate “termination of pregnancy,” meaning abortion, into a federal civil right.
- The proposed rule about Obamacare’s contraception mandate which would, among other things, do away with moral exemptions to contraceptive coverage.
- The proposed rule reversing a 2019 Trump Administration rule to enforce federal conscience and anti-discrimination laws applicable to HHS, its programs, and recipients of HHS funds, and to delegate overall enforcement and compliance responsibility to the department’s Conscience and Religious Freedom Division (dissolved under President Biden).
- The proposed rule that claims to clarify Health Insurance Portability and Accountability Act privacy rules post-Dobbs, but, in reality, worsens things by creating special protections for abortion. Under the rule, a hospital or physician would have a harder time reporting sex trafficking and abuse and risk criminal penalties for complying with state law enforcement.
Congress should prohibit the Biden Administration from complying with abortion-related executive orders and guidance that undermine the Dobbs decision, including:
- The guidance purporting to address pharmacies’ obligations under federal nondiscrimination laws, but in actuality orders pharmacies to stock and dispense dangerous abortion pills—even though pharmacies and pharmacists have a right to not violate their conscience by participating in an abortion;
- The guidance regarding the Emergency Medical Treatment and Labor Act (EMTALA), which wrongly demands that doctors perform elective abortion (which is not lifesaving care), even when doing so would violate a doctor’s conscience—and violate EMTALA itself, which requires stabilizing unborn children; and
- HHS’s invitation to states to seek § 1115 demonstrations to waive certain provisions of the law in order to use taxpayer dollars to help women travel out of state for abortions—a clear violation of the Hyde Amendment.
The appropriations process is a prime opportunity to push back against the Biden Administration’s virulently pro-abortion actions designed to resist the Dobbs decision. Congress must stand firm and promote life-saving pro-life policies as spending bills make their way through the legislative process.
Melanie Israel is a Policy Analyst in the Richard and Helen DeVos Center for Life, Religion, and Family at The Heritage Foundation.