A memo prepared for liberal Harris County explains why ‘COVID relief’ money could be sent to abortionists.
In March 2021, congressional Democrats passed a $1.9 trillion “COVID relief” bill that — unlike every bipartisan COVID-relief bill passed in 2020 — lacked the Hyde amendment.
At the time, pro-life advocates and members of Congress warned that without the amendment — the long-standing measure that prevents federal funding of abortion, except in cases of rape, incest, and when the mother’s life is endangered — there were several slush funds in the “COVID relief” bill that could be used to fund elective abortions with federal tax dollars. The Houston Chronicle reports that Democratic officials in liberal Harris County, Texas, are now considering whether to do just that in response to the state’s law generally prohibiting abortion later than six weeks of pregnancy.
Some excerpts from the piece (emphasis added):
Three months after Democrats on Harris County Commissioners Court sought advice on how to counter Texas’ new abortion ban, policy analysts for the court on Tuesday advised County Judge Lina Hidalgo the county could spend public money to support groups that aid those seeking abortions — and perhaps even to directly fund abortion care . . .
The policy analysts said that while the 2019 law, known as Senate Bill 22, prevents Harris County from spending local taxpayer funds on abortion services, the county’s expected $915 million allotment of federal COVID19 relief money may be eligible for that purpose.
The memo sparked immediate backlash from the two Republicans on Commissioners Court and a number of conservative activists — including state Rep. Briscoe Cain of Deer Park — who attended Tuesday’s Commissioners Court meeting to weigh in against the idea of using public funds for ancillary abortion services . . .
Precinct 3 Commissioner Tom Ramsey, the other Republican on the court, took aim at the suggestion that COVID relief funds could be used to counter Senate Bill 8, which he characterized as “money that was meant to be spent to save lives being used to take lives.”
The memo, prepared by Amy Rose, a senior analyst for the Harris County Commissioners Court’s Analyst’s Office, states that there are “no limitations on funding services ancillary to abortion care,” including with federal funds.
Pro-life advocates say that the memo and Houston Chronicle story underscore the importance of ensuring that the Hyde amendment is actually applied to the Build Back Better (BBB) reconciliation bill. “This memo puts the need for pro-life protections like the Hyde amendment on plain display,” Autumn Christensen of the Susan B. Anthony List tells National Review in an email. “Without Hyde attached to the billions of dollars in health grants in BBB, we can assume proponents of abortion will exploit the funds for abortion and even to circumvent pro-life state laws. If they will scheme to do it using funds tagged for COVID, they will certainly do the same and more with BBB funds.”
The memo itself does not definitively say whether the federal dollars provided to state and local governments can be used to directly pay for abortions. Instead, it states that Witt O’Brien’s, a consulting firm hired by Harris County,
explains that whether Coronavirus Local Fiscal Recovery Funds (CLFRF) can be used for abortion care is a decision that rests with Harris County. However, Witt O’Brien’s adds that ‘directly paying for abortion care would be more difficult to justify under the ARP, but Witt O’Brien’s can further analyze this option if it is the preferred path forward.’”
But the SBA List’s Christensen explains: “The only reason the memo hesitates about direct funding for abortion is because the drafter leaves the question of whether the county can connect the funding to the COVID pandemic. In BBB funds are not tethered to COVID.
As National Review reported earlier this year, a majority of the Senate supported adding the Hyde amendment to the $1.9 trillion bill, but the parliamentarian said it needed 60 votes:
In the Senate, a majority actually supported the Hyde amendment: Democratic senators Joe Manchin of West Virginia, Bob Casey Jr. of Pennsylvania, and Tim Kaine of Virginia joined all Senate Republicans in favor of an amendment effectively applying the Hyde amendment to much of the bill, but the Senate parliamentarian ruled that the amendment was subject to a 60-vote threshold. (A reconciliation bill allows the Senate to pass some legislation by a simple majority.) Rather than insist that the problematic funding be stripped from the reconciliation bill and dealt with in the appropriations process (which is subject to 60 votes), Manchin, Casey, and Kaine all voted for final passage of the bill as it was written.
“I had several [Democratic] senators who came up to me later and said, ‘I regret making that vote, we should maintain Hyde,’” Oklahoma Republican senator James Lankford told National Review in July. “I’m not going to say who.”
Since the summer, West Virginia senator Joe Manchin has been adamant that the Build Back Better reconciliation bill must include the Hyde amendment. “The Hyde Amendment is a red line,” Manchin told CNN in October.
Manchin has even said that he hoped to retroactively apply the Hyde amendment to the March “COVID relief” funds during the appropriations process. (So far, Congress has not enacted new appropriations and has instead relied on “continuing resolutions” that fund the government and maintain the status quo.)
Despite Manchin’s insistence that none of the funds in the Build Back Better bill be used for elective abortions, the House Democrats passed a reconciliation bill in November that includes several provisions that could fund elective abortions. There are “public health” grants that lack the Hyde amendment, and provisions to cover the “Medicaid gap” population in twelve states that refused to expand Medicaid could directly fund elective abortions and fund transportation to out-of-state abortions in the event that states are able to enforce laws limiting or prohibiting abortion. The Hyde amendment is “not in the bill,” House speaker Nancy Pelosi said at a November 18 press conference.
There are at least a few ways to ensure that funds in the Build Back Better bill would not be spent on elective abortions.
The simplest way would be to explicitly include the text of the Hyde amendment in the bill. This has been done before in reconciliation. While the Senate parliamentarian has typically held that the Hyde amendment is subject to 60 votes in reconciliation, the 60-vote threshold is required only if a senator raises a point of order. In 1997, when Congress created the Children’s Health Insurance Program through a reconciliation bill, Democratic senator Patty Murray’s point of order was withdrawn, and the Hyde amendment was permanently attached to the program.
A second avenue would be to cross-reference the legislation to which the Hyde amendment would be applied, such as the appropriations bill that funds Medicaid. The House Democrats’ Build Back Better bill was modified in order to give the appearance that it wouldn’t fund abortion, but the change failed to accomplish that goal:
“We see the change that was made,” says Autumn Christensen of the Susan B. Anthony List. “However, it was not drafted in a way that prevents an abortion mandate because it references the Medicaid statute — which does allow for abortion — instead of referencing Medicaid appropriations, which do not allow for abortion funding.”
This issue is in the legislative weeds, but the point is important: The Hyde amendment, which prohibits Medicaid funding of abortion except in rare circumstances, must be attached each year to an appropriations bill that funds the program. The Hyde amendment is not permanently embedded in the underlying law that established Medicaid.
A third option would simply involve stripping all the provisions in the Build Back Better bill that could be used to fund abortion.
Manchin’s fiscal concerns about the bill have dominated headlines this week, and it’s not clear they’ll ever be allayed. But taxpayer funding of abortion remains another issue that could derail the bill if Manchin’s Democratic colleagues insist on including provisions in the Build Back Better bill that are not protected by the Hyde amendment.