SCOOP: Trump Moves to Scrap Biden Rule Forcing Taxpayers to Fund Alien Children’s Abortion Travel

FIRST ON THE DAILY SIGNAL—The Trump administration is moving to roll back a Biden-era regulation that allows taxpayer dollars to pay for unaccompanied illegal alien children in the U.S. to travel to get abortions, The Daily Signal has learned. 

President Donald Trump’s Department of Health and Human Services is cleaning up the Biden administration regulation so that it is in compliance with the Hyde Amendment, which prohibits taxpayer funding for abortions, HHS officials told The Daily Signal. 

“HHS is reviewing the relevant regulations and guidance to ensure they align with all applicable laws, including the Hyde Amendment,” an HHS official told The Daily Signal in a statement.

The Trump administration is not aware of any Office of Refugee Resettlement funds currently being used to facilitate abortion travel, the official said. However, the Office of Refugee Resettlement doesn’t currently track that information.

Biden’s ‘Unaccompanied Children Program Foundational Rule’

On Nov. 10, 2022, the Biden administration proposed the “Unaccompanied Children Program Foundational Rule,” which required the Office of Refugee Resettlement to “ensure unaccompanied children have access to medical care, including transportation across state lines and associated ancillary services if necessary to access appropriate medical services, including access to medical specialists, family planning services, and medical services requiring heightened ORR involvement.”

The requirement applies “regardless of whether federal appropriations law prevents ORR from paying for the medical care itself,” says the guidance, which became a final rule in April 2024. 

This formed the basis for the office to provide transportation for a number of minors to receive abortions. This includes out-of-state travel for minors in states where abortion is banned. 

The Biden rule violates the Hyde Amendment, the 1976 law prohibiting the use of federal funds to pay for most abortions, according to a July memorandum of opinion from Trump’s Office of Legal Counsel, a branch of the Department of Justice. 

“This Office concluded in 2022 that the Hyde Amendment does not bar the Department of Health and Human Services from expending covered funds to provide transportation for women seeking abortions,” the opinion says. “Having been asked to reconsider, we now conclude that the Hyde Amendment prohibits the use of federal funds to provide ancillary services necessary to receive an abortion.”

As a result, Office of Legal Counsel determined the appropriate response is to withdraw its prior contrary opinion. 

Now, Health and Human Services is undergoing the task of challenging a final rule on a topic with a history of court precedent. 

Azar v. Garza

The D.C. Circuit Court of Appeals in Washington ordered the government to allow a pregnant unaccompanied minor to obtain an abortion in 2017, prior to the Biden rule. 

A girl known as “Jane Doe” in the court records entered the U.S. as an unaccompanied minor when she was eight weeks pregnant. Immigration authorities put her in the custody of the Office of Refugee Resettlement. When Refugee Resettlement denied her request for an abortion, Jane Doe’s guardian, represented by the American Civil Liberties Union, took the matter to federal district court, where Barack Obama-appointee Judge Tanya Chutkan ruled that the government’s policy was an undue burden on a woman’s right to an abortion, in accordance with the Supreme Court’s prior Planned Parenthood v. Casey decision.

Chutkan ordered that the government either take Jane Doe to obtain an abortion or release her to be transported by the court-appointed guardian to obtain the abortion.

Because the abortion occurred, it made the government’s claim moot, so the government didn’t appeal to the Supreme Court to review Chutkan’s order, as was originally planned. Instead, the government filed a petition to nullify the appellate court’s ruling so that it would not stand as precedent.

The Supreme Court ruled the case was moot, as the issue was resolved because the abortion had already occurred, so the lower-court ruling was erased. 

The Garza decision doesn’t prevent HHS from pursuing a rule change, said Matt Bowman, Alliance Defending Freedom senior counsel and former HHS deputy general counsel. 

Bowman told The Daily Signal he hopes the Trump administration will do three things to change the rules and policies to make sure taxpayers no longer have to support programs providing abortions to children who illegally cross the border.

What the Trump Administration Can Do

Both the DOJ and HHS have a role to play in undoing the Biden-era policy of paying for alien minors’ abortion travel, according to Bowman.

First, the DOJ’s Office of Legal Counsel should repeal all of the Biden administration’s memos promoting abortion, especially for illegal alien children, he said. Second, HHS’ Office of Refugee Resettlement should repeal the Biden rule. 

Both those moves will end up being challenged in court, Bowman said. 

Third, he said the Trump administration should fight the challenges all the way to the Supreme Court because old court cases on the subject were decided before Roe v. Wade was overturned in 2022 with the court’s Dobbs v. Jackson decision, which established that there was no constitutional right to abortion. 

“They were decided under Roe v. Wade on the explicit premise that there’s a U.S. constitutional right to abortion, and that if a kid crosses the border illegally and is apprehended by Border Patrol, they somehow possess and are protected by that fictional U.S. constitutional right to abortion,” Bowman said. “But now, neither are true.”

How Long Will This Take? 

If HHS takes Bowman’s path of repealing the Biden rule, it will need to take public comments on the new rule, respond to them, and then publish the final version of the rule. 

After that, abortion advocacy groups will likely sue, Bowman explained, giving the Trump administration the opportunity to establish new court precedent in the post-Roe era. 

“The Trump administration, we hope, will do everything they can to reverse the the policies that make federal programs into an Uber service for abortions for illegal alien children,” he said.

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