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New Biden EO to HHS: Cover interstate abortion expenses

Can Joe Biden redirect Medicaid funds to reimburse costs for out-of-state abortions? He’s certainly going to try, according to multiple media outlets. Biden will sign an executive order that will instruct HHS to find ways to cover the expenses of interstate abortions for women in states where abortion is illegal or restricted:

President Biden will sign an executive order Wednesday to direct his health secretary to consider actions to assist patients traveling out of state for abortions.

The travel-related provision in the order will call on Health and Human Services Secretary Xavier Becerra to consider inviting states to apply for Medicaid waivers when treating patients who cross state lines for reproductive health services.

A senior administration official, speaking on the condition of anonymity to preview Biden’s actions, declined to share details on what a waiver would look like but said it would target low-income women served by Medicaid and help cover certain costs.

The executive order, the second Biden will sign on reproductive health since the Supreme Court overturned Roe v. Wade, follows the administration’s call for the Department of Health and Human Services to explore all options to support Americans who live in states that have severely limited abortion access. The president’s actions also come a day after Kansas voters rejected an effort to strip away their state’s abortion protections.

What expenses could Medicaid cover? We’ll find out, but any action Becerra takes to fund expenses tied directly to abortions will run afoul of the Hyde Amendment. The Washington Post never bothers to mention the annual budget rider prohibiting the use of HHS funds for abortions, but The Hill covers that point:

The White House had previously been looking at potentially turning to Medicaid to cover travel costs for women crossing states lines to receive an abortion, after the Supreme Court draft ruling leaked in May.

Medicaid funds could not be used to pay for abortions themselves because the Hyde Amendment prohibits the use of federal funds to pay for most abortions.

The NRLC has the latest version of the Hyde Amendment text. Section 506(a) and especially (b) seem pretty clear about the prohibition:

Sec. 506. (a) None of the funds appropriated in this Act, and none of the funds in any trust fund to which funds are appropriated in this Act, shall be expended for any abortion.

(b) None of the funds appropriated in this Act, and none of the funds in any trust fund to which funds are appropriated in this Act, shall be expended for health benefits coverage that includes coverage of abortion.

Note the phrase in (b) that extends the ban to “health benefits coverage that includes coverage of abortion.” That makes the congressional intent clear enough — they didn’t want to fund abortions or any other benefits connected to abortions. It’s tough to argue that travel expenses aren’t a form of benefits coverage, and impossible to argue that it’s not directly connected to a specific abortion. Biden’s EO makes that linkage explicit, in fact.

Attempts to get around that by an EO will likely result in a court fight. Maybe the White House wants a court fight for political purposes, in order to pose as fighters for women’s right. However, their track record on defending EOs in court isn’t good, and it’s only going to delay any benefit to the women Biden claims to be supporting even if it gets upheld. It might not get settled until the end of the 2023/4 Supreme Court term, when it likely won’t matter much for Biden or Democrats electorally.

Speaking of delays, how did it take three months to the day after the Dobbs leak for Biden to come around to this EO? I doubt it’s ever going to have an impact, but this qualifies more as a knee-jerk administrative action than a strategy. The latest this should have come out would have been the day after the official publication of the Dobbs decision, not several weeks later. It’s a day late and several dollars short, even for the activists who have been demanding action out of Biden on abortion. Like most of Biden’s presidency, it’s entirely reactive, and not even terribly successful even on those terms.

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