“Just to refresh everybody’s memory: Since 1976, all funding, all appropriations bills, and many authorization bills, including the Affordable Care Act and the Defense authorization bills, have been subjected to a limitation on the use of tax dollars for abortions.”

–Sen. John Cornyn (R-Tex.), statement on the Senate floor, March 19, 2015

“Now, whether taxpayer dollars should be used to ensure the full range of health care options available to this very vulnerable population is an important debate. We will have that another day. But the application of the Hyde amendment when zero taxpayer dollars are involved is unprecedented. It represents a very significant change in Federal policy….    Yesterday, my friend, the senior Senator from Texas, argued that the inclusion of the language was routine, that this does not change the status quo at all. Well that is simply not accurate. The Hyde amendment is about keeping taxpayer dollars out of the abortion debate. We may have different opinions on the issue, but that is not what we are talking about here.  The money at issue in this bill is not taxpayer dollars, it is money collected from sex traffickers. The bottom line is that the offender-financed fund created in this bill relies on zero taxpayer dollars.  So if you want to maintain current practice, you have to remove this provision.”

–Sen. Patrick J. Leahy (D-Vt.), statement on the Senate floor, March 19, 2015

The stalemate in the Senate over the Justice for Victims of Trafficking Act of 2015 hinges over the inclusion of language limiting the use of funds in a special victims’ fund to pay for abortions. Democrats have opposed the abortion language — known as the Hyde Amendment — on the grounds that these victims, if pregnant, might have difficulty claiming they were raped (which is an exception under the Hyde amendment but reports suggest is very difficult to obtain.) Moreover, as shown in the statement by Sen. Leahy, Democrats believe that the use of Hyde when zero taxpayer dollars are involved is unprecedented.

The Fact Checker has spent much of the week delving into the weeds of this issue. As far as we can determine, going back and forth between both sides, the answer is open to some interpretation. Here are the results of our inquiry.

The Facts

The Hyde amendment, in various forms, has been part of every appropriations bill since 1976.

In the most recent appropriations bill for the Labor Department, Health and Human Services and Education Departments, it says:

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.
 (c) The term  “health benefits coverage” means the package of  services covered by a managed care provider or organization pursuant to a contract or other arrangement.
Sec. 507. (a) The limitations established in the preceding section shall not apply to an abortion–
        (1) if the pregnancy is the result of an act of rape or incest; or
        (2) in the case where a woman suffers from a physical disorder, physical injury, or physical illness, including a life-endangering physical condition caused by or arising from the pregnancy itself, that would, as certified by a physician, place the woman in danger of death unless an abortion is performed.
(b) Nothing in the preceding section shall be construed as prohibiting the expenditure by a State, locality, entity, or private person of State, local, or private funds (other than a State’s or locality’s contribution of Medicaid matching funds).
    (c) Nothing in the preceding section shall be construed as restricting the ability of any managed care provider from offering abortion coverage or the ability of a State or locality to contract separately with such a provider for such coverage with State funds (other than a State’s or locality’s contribution of Medicaid matching funds).

There are several ways one could look at this language. The amendment covers funds “appropriated” in the bill, so one interpretation is those funds are covered regardless whether they originally came from tax revenues or not.  Once those funds, from whatever source, go into the federal Treasury, they are federal funds. Moreover, note that law specifically mentions trust funds, such as what were originally “private” dollars paid in by individuals as Medicare premiums. There are also restrictions on the states, requiring them to contract separately to establish a separate account containing only non-federal money if they want to fund abortions.

We found an interesting document in the Clinton library, dated June 16, 1998, that sheds some light on use of Medicare funds and abortion. As the memo to the president (embedded below) discloses, Clinton chose to decide that all Medicare expenditures must abide by the Hyde restrictions because some Hyde-covered appropriated funds are deposited in the Medicare Trust fund. In fact, he specifically rejected an option that would have segregated appropriated funds from non-appropriated funds such as premiums. The legal policy was never restricted to funds that came from “taxes.”   (Congress later codified this decision into law.)

But Democrats argue that the Clinton memo bolsters their point of view — these are mixed funds, both appropriated and nonappropriated. As the option that Clinton chose states, “since some Hyde-covered appropriated funds are deposited into the Medicare Trust Fund, all Medicare expenditures must abide by the Hyde restrictions.” That, they say, is different from the proposed human-trafficked victims’ fund, which would be funded through fines and penalties.

There is another wrinkle — something called the Crime Victims Fund, which was established by a 1984 law. The Crime Victims Fund is funded entirely by fines, penalties, assessments and the like — and not taxpayer funds.

As the 1984 law states, “there is created in the Treasury a separate account to be known as the Crime Victims Fund.”  And, as every high school student learns, there is Section 9 of the Constitution, which says:  “No money shall be drawn from the Treasury, but in consequence of appropriations made by law.”

The money in the Crime Victims Fund now stands at more than $14 billion, though Congress generally imposes an annual cap on using those monies. The fund  is referenced in the Justice Department Appropriations bill — and sure enough, there is also anti-abortion language governing that bill.

Sec. 202. None of the funds appropriated by this title shall be available to pay for an abortion, except where the life of the mother would be endangered if the fetus were carried to term, or in the case of rape: Provided, That should this prohibition be declared unconstitutional by a court of competent jurisdiction, this section shall be null and void.
Sec. 203. None of the funds appropriated under this title shall be used to require any person to perform, or facilitate in any way the performance of, any abortion.

Most experts agree this section was aimed at abortions in the federal prison system. But there is, within this title, also a reference to the Victims of Crime Act of 1984 (Public Law 98–473) under the Office of Justice programs.

So does that mean the Crime Victims Fund is covered by this language? Probably not.

Separately, in the appropriations bill, there is section 510, which establishes a $2.3 billion cap on the use of Crime Victims Fund. Most people we spoke to believe that means the Crime Victims Fund involves nondiscretionary spending and thus is not subject to the Hyde-like restriction contained elsewhere in the Justice Appropriations bill; that is certainly the position of the Justice Department.

We were unable to determine if crime victims have used money from the Crime Victims Fund to pay for abortions. The DOJ Web site highlights that the fund pays for sexual assault exams, but does not mention abortion.

(Interestingly, in the Senate budget resolution that was approved March 27, there is a provision that would require 60 votes to reestablish the cap on spending in the Crime Victims Fund in the coming fiscal year, meaning all $14 billion suddenly could be available if it remains in the House-Senate version.)

So, from the Democratic perspective, the human-trafficking fund should follow the path of the Crime Victims Fund. They cite a Congressional Research Service finding that there has never been a fund, financed by non-taxpayer dollars, that limited its distribution to comply with the Hyde amendment.

From a Republican perspective, Democrats have long complained about legislative riders such as Hyde, saying that the place to settle policy matters such as abortion funding is in the authorizing legislation. So now when Republicans have tried to do it in a piece of legislation, such as the human-trafficking bill,  the complaint is that this would embed Hyde more permanently in this program than annual appropriations — not withstanding that Hyde has been in place for more than a quarter-century.

The Bottom Line

The Democrats appear to have the upper hand in the argument over the Crime Victims Fund, which appears analogous to the proposed human-trafficking victims fund. While the Hyde amendment applies to Medicare trust funds, which includes nontaxpayer dollars, that does involve a mixing of appropriated and nonappropriated dollars.

But the issue is not entirely clear-cut, since as far as we can tell, until now few asked whether money from the Crime Victims Fund has been used to pay for abortions. That is a key reason why we are not making a definitive ruling in this case.

In fact, there may be a solution to the legislative stalemate. If the Hyde-like language in Justice Appropriations does in fact apply to the Crime Victims Fund, then there is little need to also have such language in the trafficking bill. Both sides could agree that the rules now in place apply, without actually stating that in the law.

But if that is not the case, as Democrats contend, then one can understand why foes of abortion rights want to clarify such ambiguities in this new legislation, so it conformed to the rules that have been in place, year after year, for appropriated funds.

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