Order Code RL33467
CRS Report for Congress
Received through the CRS Web
Abortion: Legislative Response
Updated June 12, 2007
Jon O. Shimabukuro and Karen J. LewisJune 8, 2006
Karen J. Lewis and Jon O. Shimabukuro
Legislative Attorneys
American Law Division
Congressional Research Service ˜ The Library of Congress
Abortion: Legislative Response
Summary
In 1973, the U.S. Supreme Court held that the U.S. Constitution protects a
woman’s decision whether to terminate her pregnancy, Roe v. Wade, and that a state
may not unduly burden the exercise of that fundamental right by regulations that
prohibit or substantially limit access to the means of effectuating that decision, Doe
v. Bolton. Rather than settle the issue, the Court’s rulings have kindled heated debate
and precipitated a variety of governmental actions at the national, state, and local
levels designed either to nullify the rulings or limit their effect. These governmental
regulations have, in turn, spawned further litigation in which resulting judicial
refinements in the law have been no more successful in dampening the controversy.
In recent years, the rights enumerated in Roe have been redefined by decisions
such as Webster v. Reproductive Health Services, which gave greater leeway to the
States to restrict abortion, and Rust v. Sullivan, which narrowed the scope of
permissible abortion-related activities that are linked to federal funding. The decision
in Planned Parenthood of Southeastern Pennsylvania v. Casey, which established the
“undue burden” standard for determining whether abortion restrictions are
permissible, gave Congress additional impetus to move on statutory responses to the
abortion issue, such as the Freedom of Choice Act.
In each Congress since 1973, constitutional amendments to prohibit abortion
have been introduced. These measures have been considered in committee, but none
has been passed by either the House or the Senate.
Legislation to prohibit a specific abortion procedure, the so-called “partial-birth”
abortion procedure, was passed in the 108th Congress. The Partial-Birth Abortion
Ban Act appears to be one of the only examples of Congress restricting the
performance of a medical procedure.
In the 109th Congress, H.R. 748, the Child
Interstate Abortion Notification Act,
incorporates incorporated the language of the Child Custody
Protection Act, but also imposes a
imposed a 24-hour parental notification requirement for
abortions occurring outside a minor’s
state of residence state of residence. The Child Custody
Protection Act was also introduced in the Senate as S. 403.
Since Roe, Congress has attached abortion funding restrictions to numerous
appropriations measures. The greatest focus has been on restricting Medicaid
abortions under the annual appropriations for the Department of Health and Human
Services. This series of restrictions is popularly known as the “Hyde Amendments.”
Restrictions on the use of appropriated funds affect numerous federal entities,
including the Department of Justice, where federal funds may not be used to perform
abortions in the federal prison system except in cases of rape or endangerment of the
mother. Such restrictions also impact the District of Columbia, where both federal
and local funds may not be used to perform abortions except in cases of rape, incest
or endangerment of the mother, and affect international organizations like the United
Nations Population Fund, which receives funds through the annual Foreign
Operations appropriations measure. This report replaces CRS Issue Brief IB95095,
Abortion: Legislative Response, by Jon O. Shimabukuro and Karen J. Lewis.
Contents
Most Recent Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Judicial History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Roe v. Wade and Doe v. Bolton . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Supreme Court Decisions Subsequent to Roe and Doe . . . . . . . . . . . . . . . . . 3
Webster . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Casey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Ayotte . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Public Funding of Abortions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
The 1977 Trilogy — Restrictions on Public Funding
of Nontherapeutic
or Elective Abortions . . . . . . . . . . . . . . . . . . . . . .7
Public Funding of Therapeutic
or Medically Necessary Abortions . . . . . . . . . . . . . 7
Public Funding of Therapeutic or Medically Necessary Abortions. . . . . . . . . . . . 87
Partial-Birth Abortion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Legislative History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1012
Constitutional Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1112
Statutory Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1213
Bills that Seek to Prohibit the Right to Abortion by Statute . . . . . . . . 1213
Hyde-Type Amendments to Appropriation Bills . . . . . . . . . . . . . . . . . 1213
Other Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1415
Legislation in the 109th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1415
FY2006 Appropriations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Abortion: Legislative Response
Most Recent Developments
On February 21, 2006, the U.S. Supreme Court agreed to review the decision
of the U.S. Court of Appeals for the Eighth Circuit on the validity of the federal
Partial-Birth Abortion Ban Act of 2003. In Carhart v. Gonzales, the Eighth Circuit
found the act unconstitutional because it lacked a health exception that would permit
a so-called “partial-birth” abortion to be performed to preserve the health of the
mother. Carhart is one of three cases involving the Partial-Birth Abortion Ban Act
to be considered by the courts. In National Abortion Federation v. Gonzales and
Planned Parenthood v. Gonzales, the Second and Ninth Circuits similarly held that
the act is unconstitutional. Additional information on the three cases and the PartialBirth Abortion Ban Act is available in the “Partial-Birth Abortion” section of this
17
Legislation in the 110th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Abortion: Legislative Response
Most Recent Developments
On April 18, 2007, the U.S. Supreme Court upheld the Partial-Birth Abortion
Ban Act of 2003, finding that, as a facial matter, it is not unconstitutionally vague
and does not impose an undue burden on a woman’s right to terminate her pregnancy.
In Gonzales v. Carhart, 127 S. Ct. 1610 (2007), the Court distinguished the federal
statute from the Nebraska “partial-birth” abortion law that was invalidated in its 2000
decision, Stenberg v. Carhart. Background information on Stenberg and Gonzales
is included in the “Partial-Birth Abortion” section of this report.
Judicial History
The primary focus of this report is legislative action with respect to abortion.
However, discussion of the various legislative proposals necessarily involves a brief
discussion of the leading U.S. Supreme Court decisions concerning a woman’s right
to choose whether to terminate her pregnancy. For a more detailed discussion of the
relevant case law, see CRS Report 95-724, Abortion Law Development: A Brief
Overview, by Karen J. Lewis and Jon O. Shimabukuro.
Roe v. Wade and Doe v. Bolton
In 1973, the Supreme Court issued its landmark abortion rulings in Roe v. Wade,
410 U.S. 113 (1973), and Doe v. Bolton, 410 U.S. 179 (1973). In those cases, the
Court found that Texas and Georgia statutes regulating abortion interfered to an
unconstitutional extent with a woman’s right to decide whether to terminate her
pregnancy. The Texas statute forbade all abortions not necessary “for the purpose
of saving the life of the mother.” The Georgia enactment permitted abortions when
continued pregnancy seriously threatened the woman’s life or health, when the fetus
was very likely to have severe birth defects, or when the pregnancy resulted from
rape. The Georgia statute required, however, that abortions be performed only at
accredited hospitals and only after approval by a hospital committee and two
consulting physicians.
The Court’s decisions were delivered by Justice Blackmun for himself and six
other Justices. Justices White and Rehnquist dissented. The Court ruled that states
may not categorically proscribe abortions by making their performance a crime, and
that states may not make abortions unnecessarily difficult to obtain by prescribing
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elaborate procedural guidelines. The constitutional basis for the decisions rested
upon the conclusion that the Fourteenth Amendment right of personal privacy
embraced a woman’s decision whether to carry a pregnancy to term. With regard to
the scope of that privacy right, the Court stated that it included “only personal rights
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that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty’” and
“bears some extension to activities related to marriage, procreation, contraception,
family relationship, and child rearing and education.” Roe v. Wade, 410 U.S. at
152-53. Such a right, the Court concluded, “is broad enough to encompass a
woman’s decision whether or not to terminate her pregnancy.” Id. at 153.
With respect to protection of the right against state interference, the Court held
that since the right of personal privacy is a fundamental right, only a “compelling
State interest” could justify its limitation by a state. Thus, while it recognized the
legitimacy of the state interest in protecting maternal health and the preservation of
the fetus’ potential life (id. at 148-150), as well as the existence of a rational
connection between these two interests and the state’s anti-abortion law, the Court
held these interests insufficient to justify an absolute ban on abortions.
Instead, the Court emphasized the durational nature of pregnancy and found the
state’s interests to be sufficiently compelling to permit curtailment or prohibition of
abortion only during specified stages of pregnancy. The High Court concluded that
until the end of the first trimester, an abortion is no more dangerous to maternal
health than childbirth itself, and found that “[With] respect to the State’s important
and legitimate interest in the health of the mother, the “compelling” point, in light of
present medical knowledge, is at approximately the end of the first trimester.” Id. at
163. Only after the first trimester does the state’s interest in protecting maternal
health provide a sufficient basis to justify state regulation of abortion, and then only
to protect this interest. Id. at 163-64.
The “compelling” point with respect to the state’s interest in the potential life
of the fetus “is at viability.” Following viability, the state’s interest permits it to
regulate and even proscribe an abortion except when necessary, in appropriate
medical judgment, for the preservation of the life or health of the woman. Id. at 160.
In summary, the Court’s holding was grounded in this trimester framework analysis
and the concept of fetal viability which was defined in post-natal terms. Id. at
164-65.
In Doe v. Bolton, 410 U.S. 179 (1973), the Court extended Roe by warning that
just as states may not prevent abortion by making the performance a crime, states
may not make abortions unreasonably difficult to obtain by prescribing elaborate
procedural barriers. In Doe, the Court struck down state requirements that abortions
be performed in licensed hospitals; that abortions be approved beforehand by a
hospital committee; and that two physicians concur in the abortion decision. Id. at
196-99. The Court appeared to note, however, that this would not apply to a statute
that protected the religious or moral beliefs of denominational hospitals and their
employees. Id. at 197-98.
The Court in Roe also dealt with the question whether a fetus is a person under
the Fourteenth Amendment and other provisions of the Constitution. The Court
indicated that the Constitution never specifically defines “person”, but added that in
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nearly all the sections where the word person appears, “the use of the word is such
that it has application only post-natally. None indicates, with any assurance, that it
has any possible pre-natal application.” 410 U.S. at 157. The Court emphasized that,
given the fact that in the major part of the 19th century prevailing legal abortion
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practices were far freer than today, the Court was persuaded “that the word ‘person’,
as used in the Fourteenth Amendment, does not include the unborn.” Id. at 158.
The Court did not, however, resolve the question of when life actually begins.
While noting the divergence of thinking on this issue, it instead articulated the legal
concept of “viability”, defined as the point at which the fetus is potentially able to
live outside the womb, although the fetus may require artificial aid. Id. at 160. Many
other questions were also not addressed in Roe and Doe, but instead led to a wealth
of post-Roe litigation.
Supreme Court Decisions Subsequent to Roe and Doe
The post-Roe litigation included challenges to state restrictions requiring
informed consent/waiting periods (Planned Parenthood v. Danforth, 428 U.S. 52
(1976), City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416
(1983)); spousal/parental consent (Planned Parenthood v. Danforth, supra, Bellotti
v. Baird, 443 U.S. 622 (1979), City of Akron, supra, Planned Parenthood
Association of Kansas City, Missouri Inc. v. Ashcroft, 462 U.S. 476 (1983)); parental
notice (Bellotti v. Baird, supra, H. L. v. Matheson, 450 U.S. 398 (1981), Hartigan v.
Zbaraz, 484 U.S. 171 (1987), Hodgson v. Minnesota, 497 U.S. 417 (1990), Ohio v.
Akron Center for Reproductive Health, 497 U.S. 502 (1990); reporting requirements
(Planned Parenthood v. Danforth, supra, Planned Parenthood of Kansas City,
Missouri, Inc. v. Ashcroft, supra); advertisement of abortion services (Bigelow v.
Virginia, 421 U.S. 809 (1975); abortions by nonphysicians (Connecticut v. Menillo,
423 U.S. 9 (1975); locus of abortions (City of Akron, supra, Ashcroft, supra,
Simopoulos v. Virginia, 462 U.S. 506 (1983)); viability, fetal testing, and disposal of
fetal remains (Planned Parenthood of Central Missouri v. Danforth, supra, Colautti
v. Franklin, 439 U.S. 379 (1979), Ashcroft, supra, City of Akron, supra); and
“partial-birth” abortions (Stenberg v. Carhart, 530 U.S. 914 (2000)).
The Court in Rust v. Sullivan, 500 U.S. 173 (1991), upheld on both statutory and
constitutional grounds HHS’ Title X regulations restricting recipients of federal
family planning funding from using federal funds to counsel women about the option
of abortion. While Rust is probably better understood as a case involving First
Amendment free speech rights rather than as a challenge to the constitutionally
guaranteed substantive right to abortion, the Court, following its earlier public
funding cases (Maher v. Roe and Harris v. McRae), did conclude that a woman’s
right to an abortion was not burdened by the Title X regulations. The Court reasoned
that there was no constitutional violation because the government has no duty to
subsidize an activity simply because it is constitutionally protected and because a
woman is “in no worse position than if Congress had never enacted Title X.”
In addition to Rust, the Court decided several other noteworthy cases involving
abortion following Roe. Webster v. Reproductive Health Services, 492 U.S. 490
(1989), and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S.
833 (1992), illustrate a shift in direction by the Court from the type of constitutional
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analysis it articulated in Roe. These cases and other more recent cases, such as
Stenberg v. Carhart, 530 U.S. 914 (2000), and Ayotte v. Planned Parenthood of
Northern New England, 126 S.Ct. 961 (2006), have implications for future legislative
action and how enactments will be judged by the courts in the years to come.
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Webster, Casey, and Ayotte are discussed in the subsequent sections of this report.
A discussion of Stenberg is included in the “Partial-Birth Abortion” section of the
report.
Webster
The Supreme Court upheld the constitutionality of the State of Missouri’s
abortion statute in Webster v. Reproductive Health Services, 492 U.S. 49 (1989). In
this 5-4 decision, while the majority did not overrule Roe v. Wade, it indicated that
it was willing to apply a less stringent standard of review to state restrictions on
abortion. Webster made it clear that state legislatures have considerable discretion
to pass restrictive legislation in the future, with the likelihood that such laws would
probably pass constitutional muster.
The main provisions in the 1986 Missouri law upheld by the Court included (1)
barring public employees from performing or assisting in abortions not necessary to
save the life of the mother; (2) barring the use of public buildings for performing
abortions, despite the fact that there were no public monies involved (e.g., a building
situated on public land); and (3) requiring physicians believing a woman desiring an
abortion to be at least 20 weeks pregnant to perform tests to determine whether the
fetus is viable. The Webster ruling was narrow in that it did not affect private
doctors’ offices or clinics, where most abortions are performed. Its significance
derives more from the rationales articulated by the five justices regarding how
abortion restrictions would be reviewed in the future. However, because the
Missouri law did not limit abortion prior to viability, the plurality did not believe it
was necessary to consider overruling Roe. Webster set the stage for the Court’s 1992
decision in Casey where a real shift in direction was pronounced.
Casey
Both Webster and Rust energized legislative activity, the former at both the
federal and state levels and the latter at the federal level. Some of the state legislative
proposals that became law were challenged in the courts (e.g., Pennsylvania, Guam,
Louisiana, and Utah). The Pennsylvania case, Planned Parenthood of Southeastern
Pennsylvania v. Casey, 505 U.S. 833 (1992), was decided by the Supreme Court on
June 29, 1992. In a highly fractionated 5-4 decision, the Court reaffirmed the basic
constitutional right to an abortion while simultaneously allowing some new
restrictions. Justices O’Connor, Kennedy, and Souter wrote the plurality opinion,
and they were joined in part by Justices Stevens and Blackmun. Chief Justice
Rehnquist and Justices White, Scalia, and Thomas dissented. The Court refused to
overrule Roe v. Wade, and the plurality explained at length why it was important to
follow precedent. At the same time, the plurality indicated that state laws which
contained an outright ban on abortion would be unconstitutional. Nevertheless, the
Court abandoned the trimester framework articulated in Roe and the strict scrutiny
standard of judicial review of abortion restrictions. Instead, it adopted a new
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analysis, “undue burden.” Courts will now need to ask the question whether a state
abortion restriction has the effect of imposing an “undue burden” on a woman’s right
to obtain an abortion. “Undue burden” was defined as a “substantial obstacle in the
path of a woman seeking an abortion of a nonviable fetus.” 505 U.S. at 877.
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The Court applied this new analysis to the Pennsylvania statute and concluded
that four of the provisions did not impose an undue burden on the right to abortion
and were constitutional. The provisions that were upheld involved the 24-hour
waiting period; informed consent; parental consent for minors’ abortions with a
judicial bypass; and reporting requirements. The spousal notification provision,
which required a married woman to tell her husband if she intended to have an
abortion, did not survive the “undue burden” test and was struck down as
unconstitutional.
The Court’s decision in Casey was significant because the new standard of
review appeared to allow more state restrictions to pass constitutional muster. In
addition, the Casey Court found that the state’s interest in protecting the potentiality
of human life extended throughout the course of the pregnancy. Thus, the state could
regulate, even to the point of favoring childbirth over abortion, from the outset.
Under Roe, which utilized the trimester framework, a woman’s decision to terminate
her pregnancy was reached in consultation with her doctor with virtually no state
involvement during the first trimester of pregnancy.
Moreover, under Roe, abortion was a “fundamental right” that could not be
restricted by the state except to serve a “compelling” state interest. Roe’s strict
scrutiny form of review resulted in most state regulations being invalidated during
the first two trimesters of pregnancy. The “undue burden” standard allowed greater
regulation during that period. This is evident from the fact that the Casey Court
overruled, in part, two of its earlier decisions which had followed Roe: City of Akron
v. Akron Center of Reproductive Health, 462 U.S. 416 (1983), and Thornburgh v.
American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986). In these
cases, the Court, applying strict scrutiny, struck down 24-hour waiting periods and
informed consent provisions; whereas in Casey, applying the undue burden standard,
the Court upheld similar provisions.
Casey had its greatest immediate effect on women in the State of Pennsylvania;
however, its reasoning prompted other states to pass similar restrictions that could
withstand challenge under the “undue burden” standard.
Ayotte
In Ayotte v. Planned Parenthood of Northern New England, 126 S.Ct. 961
(2006), the Court concluded that a wholesale invalidation of New Hampshire’s
Parental Notification Prior to Abortion Act was inappropriate. Finding that only a
few applications of the act raised constitutional concerns, the Court remanded the
case to the lower courts to render narrower declaratory and injunctive relief.
The New Hampshire law at issue in Ayotte prohibits physicians from performing
an abortion on a pregnant minor or a woman for whom a guardian or conservator has
been appointed until 48 hours after written notice has been delivered to at least one
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parent or guardian. The notification requirement may be waived under certain
specified circumstances. For example, notification is not required if the attending
abortion provider certifies that an abortion is necessary to prevent the woman’s death
and there is insufficient time to provide the required notice.
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Planned Parenthood of Northern New England and several other abortion
providers challenged the New Hampshire statute on the grounds that it does not
include an explicit waiver that would allow an abortion to be performed to protect
the health of the woman. The First Circuit invalidated the statute in its entirety on
that basis. The First Circuit also maintained that the act’s life exception was
impermissibly vague and forced physicians to gamble with their patients’ lives by
preventing them from performing an abortion without notification until they were
certain that death was imminent.
Declining to revisit its prior abortion decisions, the Court insisted that Ayotte
presented a question of remedy. Maintaining that the act would be unconstitutional
only in medical emergencies, the Court determined that a more narrow remedy, rather
than the wholesale invalidation of the act, was appropriate: “Generally speaking,
when confronting a constitutional flaw in a statute, we try to limit the solution to the
problem. We prefer, for example, to enjoin only the unconstitutional applications of
a statute while leaving other applications in force . . . or to sever its problematic
portions while leaving the remainder intact.” Id. at 967.
The Court identified three interrelated principles that inform its approach to
remedies. First, the Court tries not to nullify more of a legislature’s work than is
necessary because a ruling of unconstitutionality frustrates the intent of the elected
representatives of the people.
Second, the Court restrains itself from rewriting a state law to conform to
constitutional requirements, even as it attempts to salvage the law. The Court
explained that its constitutional mandate and institutional competence are limited,
noting that “making distinctions in a murky constitutional context” may involve a far
more serious invasion of the legislative domain than the Court ought to take. Id. at
968.
Third, the touchstone for any decision about remedy is legislative intent; that is,
a court cannot use its remedial powers to circumvent the intent of the legislature.
The Court observed that “[a]fter finding an application or portion of a statute
unconstitutional, we must next ask: Would the legislature have preferred what is left
of its statute to no statute at all?” Id.
On remand, the lower courts will attempt to determine the intent of the New
Hampshire legislature when it enacted the parental notification statute. Although the
State argued that the measure’s severability clause illustrates the legislature’s
understanding that the act should continue in force even if certain provisions are
invalidated, the respondents insisted that New Hampshire legislators actually
preferred no statute rather than one that would be enjoined in the manner described
by the Court. Thus, despite the Court’s recognition that the statute could be saved
from total invalidation, it remains possible that a lower court will determine that the
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New Hampshire legislature never intended for the act to operate in a limited fashion
or with any kind of health exception read into the statute.
Some have criticized the Court’s willingness to invalidate the statute only as it
applies during medical emergencies. While it is not uncommon for federal courts to
save a statute from invalidation by severing unconstitutional provisions, these courts
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have generally limited this practice to federal statutes. Critics maintain that the
Court’s opinion represents an impermissible expansion of federal judicial power over
the states. They also argue that the opinion could encourage states to enact
legislation with provisions that are possibly or clearly unconstitutional, knowing that
a reviewing court will sever the impermissible provisions and allow the remaining
statute to continue in force.
Public Funding of Abortions
After the Supreme Court’s decisions in Roe and Doe, one of the first federal
legislative responses was the enactment of restrictions on the use of federal money
for abortions (e.g., restrictions on Medicaid funds — the so-called Hyde
Amendment). Almost immediately, these restrictions were challenged in the courts.
Two categories of public funding cases have been heard and decided by the Supreme
Court: those involving (1) funding restrictions for nontherapeutic (elective)
abortions; and (2) funding limitations for therapeutic (medically necessary) abortions.
The 1977 Trilogy — Restrictions on Public Funding of
Nontherapeutic or Elective Abortions. The Supreme Court, in three related
decisions, ruled that the states have neither a statutory nor a constitutional obligation
to fund elective abortions or provide access to public facilities for such abortions
(Beal v. Doe, 432 U.S. 438 (1977); Maher v. Roe, 432 U.S. 464 (1977); and Poelker
v. Doe, 432 U.S. 519 (1977) (per curiam)).
In Beal v. Doe, the Court held that nothing in the language or legislative history
of Title XIX of the Social Security Act (Medicaid) requires a participating state to
fund every medical procedure falling within the delineated categories of medical
care. The Court ruled that it was not inconsistent with the act’s goals to refuse to
fund unnecessary medical services. However, the Court did indicate that Title XIX
left a state free to include coverage for nontherapeutic abortions should it choose to
do so. Similarly, in Maher v. Roe, the Court held that the Equal Protection Clause
does not require a state participating in the Medicaid program to pay expenses
incident to nontherapeutic abortions simply because the state has made a policy
choice to pay expenses incident to childbirth. More particularly, Connecticut’s
policy of favoring childbirth over abortion was held not to impinge upon the
fundamental right of privacy recognized in Roe v. Wade, which protects a woman
from undue interference in her decision to terminate a pregnancy. Finally, in Poelker
v. Doe, the Court upheld a municipal regulation that denied indigent pregnant women
nontherapeutic abortions at public hospitals. It also held that staffing those hospitals
with personnel opposed to the performance of abortions did not violate the Equal
Protection Clause of the Constitution. Poelker, however, did not deal with the
question of private hospitals and their authority to prohibit abortion services.
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Public Funding of Therapeutic or Medically Necessary Abortions.
The 1977 Supreme Court decisions left open the question whether federal law, such
as the Hyde Amendment (restrictions on Medicaid funding of abortion), or similar
state laws, could validly prohibit governmental funding of therapeutic abortions.
The Court in Harris v. McRae, 448 U.S. 297 (1980), ruled 5-4 that the Hyde
Amendment’s abortion funding restrictions were constitutional. The majority found
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that the Hyde Amendment neither violated the due process or equal protection
guarantees of the Fifth Amendment nor the Establishment [of religion] Clause of the
First Amendment. The Court also upheld the right of a state participating in the
Medicaid program to fund only those medically necessary abortions for which it
received federal reimbursement. In companion cases raising similar issues, the Court
held that an Illinois statutory funding restriction comparable to the federal Hyde
Amendment also did not contravene the constitutional restrictions of the Equal
Protection Clause of the Fourteenth Amendment (Williams v. Zbaraz; Miller v.
Zbaraz; U.S. v. Zbaraz, 448 U.S. 358 (1980)). The Court’s rulings in McRae and
Zbaraz mean there is no statutory or constitutional obligation of the states or the
federal government to fund medically necessary abortions.
Partial-Birth Abortion
On June 28, 2000, the Court decided Stenberg v. Carhart, 530 U.S. 914 (2000),
its first substantive abortion case since Casey. In Stenberg, the Court determined that
a Nebraska statute that prohibited the performance of so-called “partial-birth”
abortions was unconstitutional because it failed to include an exception to protect the
health of the mother and because the language defining the prohibited procedure was
too vague.1 In affirming the decision of the Eighth Circuit, the Court agreed that the
language of the Nebraska statute could be interpreted to prohibit not just the dilation
and extraction (D&X) procedure that pro-life advocates oppose, but the standard
dilation and
evacuation (D&E) procedure that is the most common abortion
procedure during the
second trimester of pregnancy. The Court believed that the
statute was likely to
prompt those who perform the D&E procedure to stop because
of fear of prosecution
and conviction. The result would be the imposition of an
“undue burden” on a
woman’s ability to have an abortion.
During the 106th Congress, both the Senate and House passed bills that would
have prohibited the performance of partial-birth abortions. The Senate passed the
Partial-Birth Abortion Ban Act of 1999 (S. 1692) on October 21, 1999 by a vote of
63-34. H.R. 3660, the Partial-Birth Abortion Ban Act of 2000, was passed by the
House on April 5, 2000 by a vote of 287-141. Although the House requested a
conference, no further action was taken. Similar partial-birth abortion measures were
vetoed during the 104th and 105th Congresses. In both instances, President William
J. Clinton focused on the failure to include an exception to the ban when the mother’s
health is an issue.
1
See also CRS Report RL30415, Partial-Birth Abortion: Recent Developments in the Law,
by Jon O. Shimabukuro.
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During the 107th Congress, the House passed H.R. 4965, the Partial-Birth
Abortion Ban Act of 2002, by a vote of 274-151. H.R. 4965 would have prohibited
physicians from performing a partial-birth abortion except when it was necessary to
save the life of a mother whose life was endangered by a physical disorder, physical
illness, or physical injury, including a life-endangering physical condition caused by
or arising from the pregnancy itself. The bill defined the term “partial-birth abortion”
to mean an abortion in which “the person performing the abortion deliberately and
intentionally vaginally delivers a living fetus until, in the case of a head-first
1
See also CRS Report RL30415, Partial-Birth Abortion: Recent Developments in the Law,
by Jon O. Shimabukuro.
CRS-9
presentation, the entire fetal head is outside the body of the mother, or, in the case of
breech presentation, any part of the fetal trunk past the navel is outside the body of
the mother for the purpose of performing an overt act that the person knows will kill
the partially delivered living fetus.” Physicians who violated the act would have been
subject to a fine, imprisonment for not more than two years, or both. H.R. 4965 was
not considered by the Senate.
During the 108th Congress, on November 5, 2003, the President signed S. 3, the
Partial-Birth Abortion Ban Act of 2003 (P.L. 108-105). The Senate initially passed
S. 3 on March 13, 2003 by a vote of 64-33. H.R. 760, a companion measure to S. 3,
was passed by the House on June 4, 2003 by a vote of 282-139. Shortly after passage
of H.R. 760, pursuant to H.Res. 257, the language of S. 3 was struck, and the
provisions of H.R. 760 were inserted into the measure. On September 17, 2003, the
Senate voted 93-0 to reject the House amendment to S. 3. The Senate’s vote moved
the two measures to conference. On September 30, 2003, a House-Senate conference
committee agreed to report a version of the bill that was identical to the Housepassed measure. The House approved H.Rept. 108-288, the conference report for the
Partial-Birth Abortion Ban Act of 2003, by a vote of 281-142 on October 2, 2003.
The Senate agreed to the conference report by a vote of 64-34 on October 21, 2003.
In general, the act prohibits physicians from performing a partial-birth abortion
except when it is necessary to save the life of a mother whose life is endangered by
a physical disorder, physical illness, or physical injury, including a life-endangering
physical condition caused by or arising from the pregnancy itself. Physicians who
violate the act are subject to a fine, imprisonment for not more than two years, or
both.
Despite the Court’s holding in Stenberg and past decisions that have found that
restrictions on abortion must allow for the performance of an abortion when it is
necessary to protect the health of the mother, the Partial-Birth Abortion Ban Act of
2003 does not include such an exception. In his introductory statement for the act,
Senator Rick Santorum discussed the measure’s lack of a health exception.2 He
maintained that an exception is not necessary because of the risks associated with
partial-birth abortions. Senator Santorum insisted that congressional hearings and
expert testimony demonstrate “that a partial birth abortion is never necessary to
preserve the health of the mother, poses significant health risks to the woman, and
is outside the standard of medical care.”3
Within two days of the act’s signing, federal courts in Nebraska, California, and
New York blocked its enforcement. On April 18, 2007, the Court upheld the PartialBirth Abortion Ban Act of 2003, finding that, as a facial matter, it is not
unconstitutionally vague and does not impose an undue burden on a woman’s right
to terminate her pregnancy.4 In Gonzales v. Carhart, 127 S. Ct. 1610 (2007), the
2
149 Cong. Rec. S2523 (daily ed. February 14, 2003) (statement of Sen. Santorum).
3
Id.
4
Unlike “as-applied” challenges, which consider the validity of a statute as applied to a
(continued...)
CRS-10
Court distinguished the federal statute from the Nebraska law at issue in Stenberg.
According to the Court, the federal statute is not unconstitutionally vague because it
provides doctors with a reasonable opportunity to know what conduct is prohibited.
Id. at 1628. Unlike the Nebraska law, which prohibited the delivery of a “substantial
portion” of the fetus, the federal statute includes “anatomical landmarks” that identify
when an abortion procedure will be subject to the act’s prohibitions. The Court
noted: “[I]f an abortion procedure does not involve the delivery of a living fetus to
one of these ‘anatomical landmarks’ — where, depending on the presentation, either
the fetal head or the fetal trunk past the navel is outside the body of the mother — the
prohibitions of the Act do not apply.” Id. at 1627.
The Court also maintained that the inclusion of a scienter or knowledge
requirement in the federal statute alleviates any vagueness concerns. Because the act
applies only when a doctor “deliberately and intentionally” delivers the fetus to an
anatomical landmark, the Court concluded that a doctor performing the D&E
procedure would not face criminal liability if a fetus is delivered beyond the
prohibited points by mistake. Id. at 1628. The Court observed: “The scienter
requirements narrow the scope of the Act’s prohibition and limit prosecutorial
discretion.” Id. at 1629.
In reaching its conclusion that the Partial-Birth Abortion Ban Act of 2003 does
not impose an undue burden on a woman’s right to terminate her pregnancy, the
Court considered whether the federal statute is overbroad, prohibiting both the D&X
and D&E procedures. The Court also considered the statute’s lack of a health
exception.
Relying on the plain language of the act, the Court determined that the federal
statute could not be interpreted to encompass the D&E procedure. The Court
maintained that the D&E procedure involves the removal of the fetus in pieces. In
contrast, the federal statute uses the phrase “delivers a living fetus.” The Court
stated: “D&E does not involve the delivery of a fetus because it requires the removal
of fetal parts that are ripped from the fetus as they are pulled through the cervix.” Id.
at 1630. The Court also identified the act’s specific requirement of an “overt act”
that kills the fetus as evidence of its inapplicability to the D&E procedure. The Court
indicated: “This distinction matters because, unlike [D&X], standard D&E does not
involve a delivery followed by a fatal act.” Id. at 1631. Because the act was found
not to prohibit the D&E procedure, the Court concluded that it is not overbroad and
does not impose an undue burden a woman’s ability to terminate her pregnancy.
According to the Court, the absence of a health exception also did not result in
an undue burden. Citing its decision in Ayotte, the Court noted that a health exception
would be required if the act subjected women to significant health risks. Id. at 1635.
However, acknowledging medical disagreement about the act’s requirements ever
imposing significant health risks on women, the Court maintained that “the question
becomes whether the Act can stand when this medical uncertainty persists.” Id. at
1636. Reviewing its past decisions, the Court indicated that it has given state and
4
(...continued)
particular plaintiff, facial challenges seek to invalidate a statute in all of its applications.
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federal legislatures wide discretion to pass legislation in areas where there is medical
and scientific uncertainty. Id. The Court concluded that this medical uncertainty
provides a sufficient basis to conclude in a facial challenge of the statute that it does
not impose an undue burden. Id. at 1637.
Although the Court upheld the Partial-Birth Abortion Ban Act of 2003 without
a health exception, it acknowledged that there may be “discrete and well-defined
instances” where the prohibited procedure “must be used.” Id. at 1638. However,
the Court indicated that exceptions to the act should be considered in as-applied
challenges brought by individual plaintiffs: “In an as-applied challenge the nature
of the medical risk can be better quantified and balanced than in a facial attack.” Id.
at 1638-39.
Justice Ginsburg authored the dissent in Gonzales. She was joined by Justices
Stevens, Souter, and Breyer. Describing the Court’s decision as “alarming,” Justice
Ginsburg questioned upholding the federal statute when the relevant procedure has
been found to be appropriate in certain cases. Id. at 1641. Citing expert testimony
that had been introduced, Justice Ginsburg maintained that the prohibited procedure
has safety advantages for women with certain medical conditions, including bleeding
disorders and heart disease. Id. at 1644-45.
Justice Ginsburg also criticized the Court’s decision to uphold the statute
without a health exception. Justice Ginsburg declared: “Not only does it defy the
Court’s longstanding precedent affirming the necessity of a health exception, with
no carve-out for circumstances of medical uncertainty . . . it gives short shrift to the
records before us, carefully canvassed by the District Courts.” Id. at 1646.
Moreover, according to Justice Ginsburg, the refusal to invalidate the Partial-Birth
Abortion Ban Act of 2003 on facial grounds was “perplexing” in light of the Court’s
decision in Stenberg. Id. at 1650. Justice Ginsburg noted: “[I]n materially identical
circumstances we held that a statute lacking a health exception was unconstitutional
on its face.” Id.
Finally, Justice Ginsburg contended that the Court’s decision “cannot be
understood as anything more than an effort to chip away at a right declared again and
again by [the] Court — and with increasing comprehension of its centrality to
women’s lives.” Id. at 1653. Citing the language used by the Court, including the
phrase “abortion doctor” to describe obstetrician-gynecologists and surgeons who
perform abortions, Justice Ginsburg maintained that “[t]he Court’s hostility to the
right Roe and Casey secured is not concealed.” Id. at 1650. She argued that when
a statute burdens constitutional rights and the measure is simply a vehicle for
expressing hostility to those rights, the burden should be viewed as “undue.” Id. at
1653.
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2
149 Cong. Rec. S2523 (daily ed. Feb. 14, 2003) (statement of Sen. Santorum).
3
Id.
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Within two days of the act’s signing, federal courts in Nebraska, California, and
New York blocked its enforcement. Since that time, the U.S. Courts of Appeals for
the Second, Eighth, and Ninth Circuits have affirmed lower court decisions that have
found the act to be unconstitutional. In Carhart v. Gonzales, 413 F.3d 791 (8th Cir.
2005), the first of the Court of Appeals decisions to be issued, the Eighth Circuit
found the Partial-Birth Abortion Ban Act unconstitutional based solely on its failure
to include a health exception. The court indicated that the government had to
demonstrate “that relevant evidentiary circumstances (such as the presence of a
newfound medical consensus or medical studies)” had changed to show that a health
exception is unnecessary. Id. at 802. Because there was no new evidence, the court
refused to disavow Stenberg and upheld the act. Finding the act unconstitutional for
its lack of a health exception, the court declined to consider whether the act imposed
an undue burden on a woman’s ability to have an abortion.
On January 31, 2006, the Second and Ninth Circuits issued their decisions on
the Partial-Birth Abortion Ban Act. In National Abortion Federation v. Gonzales,
No. 04-5201-CV (2d Cir. 2006), the Second Circuit determined that the act is
unconstitutional because it does not include a health exception. In light of the
Court’s decision in Ayotte, however, the Second Circuit deferred the question of
remedy until after the parties could submit briefs on the issue.
In Planned Parenthood v. Gonzales, No. 04-16621 (9th Cir. 2006), the Ninth
Circuit concluded that the act is unconstitutional for three distinct reasons: because
it lacks a health exception; because it imposes an undue burden on a woman’s ability
to obtain a previability abortion by limiting the availability of the D&X abortion
procedure, as well as the D&E procedure; and because its definition of the unlawful
procedure is unconstitutionally vague, depriving physicians of fair notice of what is
prohibited and encouraging arbitrary enforcement. Unlike the Second Circuit, the
Ninth Circuit found that a permanent injunction was the appropriate remedy for the
unconstitutional statute. The court observed that a more narrow injunction would
require the court “to violate the intent of the legislature and usurp the policy-making
authority of Congress.” Slip op. at 49. The legislative history of the Partial-Birth
Abortion Ban Act reveals Congress’s rejection of numerous amendments that would
have added a health exception to the measure. Thus, the Ninth Circuit maintained
that a decision that read a health exception into the statute would undermine
congressional intent.
In February 2006, the Court agreed to review the Eighth Circuit’s decision in
Carhart. Apart from the usual interest in abortion cases before the Court, Carhart
has attracted additional attention because of Justice O’Connor’s retirement and the
appointment of Justice Alito.
Legislative History
Rather than settle the issue, the Court’s decisions in Roe v. Wade and Doe v.
Bolton have prompted debate and precipitated a variety of governmental actions at
the national, state, and local levels to limit their effect. As the previous Congresses
had been, the 108th Congress continued to be a forum for proposed legislation and
CRS-11
constitutional amendments aimed at limiting or prohibiting the practice of abortion.
Further activity is occurring in the 109th Congress. This section examines the history
of the federal legislative response to the abortion issue.
In the decade prior to the decision in Roe v. Wade, 10 pieces of legislation
relating to abortion were introduced in either the House or the Senate. Since 1973,
more than 1,000 separate legislative proposals have been introduced. The wide
disparity in these statistics illustrates the impetus that the Court’s 1973 decisions
gave to congressional action. By far the greater number of these proposals have
sought to restrict the availability of abortions. A few measures have been introduced
seeking to better secure the right. The Freedom of Choice Act (FOCA), which was
introduced and debated in both the 102nd and 103rd Congresses, was never enacted.
FOCA was an attempt to codify Roe v. Wade legislatively. The Freedom of Access
to Clinic Entrances Act of 1994, P.L. 103-259 (18 U.S.C. 248), made it a federal
crime to use force, or the threat of force, to intimidate abortion clinic workers or
women seeking abortions.
Proponents of more restrictive abortion legislation have employed a variety of
legislative initiatives to achieve this end, with varying degrees of success. Initially,
legislators focused their efforts on the passage of a constitutional amendment which
would overrule the Supreme Court’s decision in Roe. This course, however, proved
to be problematic.
Constitutional Amendments
Since 1973, a series of constitutional amendments have been introduced in each
Congress in an attempt to overrule the Court’s decision in Roe v. Wade. To date, no
constitutional amendment has been passed in either the House or the Senate; indeed
for several years, proponents had difficulty getting the measures reported out of
committee. Interest in the constitutional approach peaked in the 94th Congress when
nearly 80 amendments were introduced. By the 98th Congress, the number had
significantly declined. It was during this time that the Senate brought to the floor the
only constitutional amendment on abortion that has ever been debated and voted on
in either House.
During the 98th Congress, S.J.Res. 3 was introduced. Subcommittee hearings
were held, and the full Judiciary Committee voted (9-9) to send the amendment to
the Senate floor without recommendation. As reported, S.J.Res. 3 included a
subcommittee amendment eliminating the enforcement language and declared
simply, “A right to abortion is not secured by this Constitution.” By adopting this
proposal, the subcommittee established its intent to remove federal institutions from
the policymaking process with respect to abortion and reinstate state authorities as
the ultimate decisionmakers.
CRS-13
S.J.Res. 3 was considered in the Senate on June 27 and 28, 1983. The
amendment required a two-thirds vote to pass the Senate since super-majorities of
both Houses of Congress must approve a constitutional amendment before it can be
submitted to the states. On June 28, 1983, S.J.Res. 3 was defeated (50-49), not
having obtained the two-thirds vote necessary for a constitutional amendment. [For
a review of the full debate on S.J.Res. 3, see 129 Congressional Record S9076, et
CRS-12
seq., daily ed., June 27, 1983; 129 Congressional Record S9265, et seq., daily ed.,
June 28, 1983.]
Statutory Provisions
Bills that Seek to Prohibit the Right to Abortion by Statute. As an
alternative to a constitutional amendment to prohibit or limit the practice of abortion,
opponents of abortion have introduced a variety of bills designed to accomplish the
same objective without resorting to the complex process of amending the
Constitution. Authority for such action is said to emanate from Section 5 of the
Fourteenth Amendment, which empowers the Congress to enforce the due process
and equal protection guarantees of the amendment “by appropriate legislation.” One
such bill, S. 158, introduced during the 97th Congress, would have declared as a
congressional finding of fact that human life begins at conception, and would, it was
contended by its sponsors, allow states to enact laws protecting human life, including
fetuses. Hearings on the bill were marked by controversy over the constitutionality
of the declaration that human life begins at conception, which contradicted the
Supreme Court’s specific holding in Roe v. Wade, and over the withdrawal of lower
federal court jurisdiction over suits challenging state laws enacted pursuant to federal
legislation. A modified version of S. 158 was approved in subcommittee, but that
bill, S. 1741, had no further action in the 97th Congress.
Hyde-Type Amendments to Appropriation Bills. As an alternative to
these unsuccessful attempts to prohibit abortion outright, opponents of abortion
sought to ban the use of federal monies to pay for the performance of abortions.
They focused their efforts primarily on the Medicaid program since the vast majority
of federally funded abortions were reimbursed under Medicaid.
The Medicaid program was established in 1965 to fund medical care for
indigent persons through a federal-state cost-sharing arrangement; however,
abortions were not initially covered under the program. During the Nixon
Administration, the Department of Health, Education and Welfare (HEW) decided
to reimburse states for the funds used to provide abortions to poor women. This
policy decision was influenced by the Supreme Court’s decision in Roe v. Wade
which, in addition to decriminalizing abortion, was seen as legitimizing the status of
abortion as a medical procedure for the purposes of the Medicaid program.
Since Roe v. Wade, Congress has attached abortion funding restrictions to
numerous appropriations bills. Although the Foreign Assistance Act of 1973, P.L.
93-189, was the first such enactment, the greatest focus has been on restricting
Medicaid abortions under the annual appropriations for the Department of Health,
Education, and Welfare (HEW) (now the Department of Health and Human Services
(HHS)).
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The first of a series of restrictions, popularly referred to as the “Hyde
Amendments,” was attached to the FY1977 Departments of Labor and Health,
Education, and Welfare Appropriation Act, P.L. 94-439. As originally offered by
Representative Hyde, the proposal would have prohibited the funding of all
abortions. A compromise amendment offered by Representative Conte was
eventually agreed to, providing that “None of the funds contained in this act shall be
CRS-13
used to perform abortions except where the life of the mother would be endangered
if the fetus were carried to term.”
In subsequent years, Hyde Amendments were sometimes reworded to include
exceptions for rape and incest or long-lasting physical health damage to the mother.
However, from the 97th Congress until recently the language has been identical to the
original enactment, allowing only an exception to preserve the life of the mother. In
1993, during the first year of the Clinton Administration, coverage under the Hyde
Amendment was expanded to again include cases of rape and incest. Efforts to
restore the original language (providing for only the life of the woman exception)
failed in the 104th Congress.
The Hyde Amendment process has not been limited to the Labor/HHS
appropriation. Beginning with P.L. 95-457, the Department of Defense
Appropriation Acts have contained Hyde-type abortion limitations. This recurring
prohibition was eventually codified and made permanent by P.L. 98-525, the
Department of Defense Authorization Act of 1984.
Beginning with P.L. 96-93, the District of Columbia (D.C.) Appropriations Acts
have contained restrictive abortion provisions. In recent years there have been efforts
to expand the prohibitions to District funds as well as the federal funds appropriated.
The passage of P.L. 100-462, the FY1989 D.C. Appropriations Act, marked the first
successful attempt to extend abortion restrictions to the use of District funds. In 1993
and 1994, lawmakers approved a prohibition that applied only to federal monies. The
104th Congress approved a ban on all government funding of abortion (federal and
D.C.), except in cases of rape, incest or danger to a woman’s life. This ban has
continued in recent appropriations measures for the District.
In 1983, the Hyde Amendment process was extended to the Department of the
Treasury and Postal Service Appropriations Act, prohibiting the use of Federal
Employee Health Benefits to pay for abortions except when the life of the woman
was in danger. Prior to this, it had been reported that in 1980, for instance, federal
government health insurance plans paid an estimated $9 million for abortions, both
therapeutic and non-therapeutic. The following year the Office of Personnel
Management (OPM) attempted through administrative action to eliminate non-lifesaving abortion coverage. This action was challenged by federal employee unions,
and the U.S. district court held that OPM acted outside the scope of its authority, and
that absent a specific congressional statutory directive, there was no basis for OPM’s
decision. American Federation of Government Employees v. AFL-CIO, 525 F.Supp.
250 (1981). It was this background that led to the 1983 congressional action to
include the prohibition on coverage for abortion in federal employee health insurance
plans except when the life of the woman was in danger. This prohibition was
removed in 1993. However, the 104th Congress passed language prohibiting the use
of federal money for abortion under the Federal Employee Health Benefit Program
CRS-15
except in cases where the life of the mother would be endangered or in cases of rape
or incest.
Finally, under Department of Justice appropriations, funding of abortions in
prisons is prohibited except where the life of the mother is endangered, or in cases
of rape. First enacted as part of the FY1987 Continuing Resolution, P.L. 99-591, this
CRS-14
provision has been reenacted as part of the annual spending bill in each subsequent
fiscal year, but the language has been modified in recent years.
Other Legislation
In addition to the temporary funding limitations contained in appropriation bills,
abortion restrictions of a more permanent nature have been enacted in a variety of
contexts since 1970. For example, the Family Planning Services and Population
Research Act of 1970, P.L. 91-572 (42 U.S.C. 300a-6), bars the use of funds for
programs in which abortion is a method of family planning.
The Legal Services Corporation Act of 1974, P.L. 93-355 (42 U.S.C.
2996f(b)(8)), prohibits lawyers in federally funded legal aid programs from providing
legal assistance for procuring non-therapeutic abortions and prohibits legal aid in
proceedings to compel an individual or an institution to perform an abortion, assist
in an abortion, or provide facilities for an abortion.
The Pregnancy Discrimination Act, P.L. 95-555 (42 U.S.C. 2000e(k)), provides
that employers are not required to pay health insurance benefits for abortion except
to save the life of the mother, but does not preclude employers from providing
abortion benefits if they choose to do so.
The Civil Rights Restoration Act of 1988, P.L. 100-259 (20 U.S.C. 1688), states
that nothing in the measure either prohibits or requires any person or entity from
providing or paying for services related to abortion.
The Civil Rights Commission Amendments Act of 1994, P.L. 103-419 (42
U.S.C. 1975a(f)), prohibits the Commission from studying or collecting information
about U.S. laws and policies concerning abortion.
Legislation in the 109th Congress
Legislation that would prohibithave prohibited the knowing transport of a minor across state
state lines for the purpose of obtaining an abortion has again been introduced. S. 403, the
was again introduced in the 109th
Congress. S. 403, the Child Custody Protection Act, was introduced by Senator John
E. Ensign on February
16, 2005.4 The bill seeks5 The measure passed the Senate by a vote of 65-34
on July 25, 2006. S. 403 sought to prevent the abridgement of parental consent and
notification requirements in a minor’s residing state. Violators of the act would be
have
been subject to a fine under Title 18 of the United StatesU.S. Code or imprisonment for not
more more
5
Additional versions of the Child Custody Protection Act were also introduced as S. 396
and S. 8 in the 109th Congress. The language in all three measures is identical.
CRS-16
than one year, or both. The act’s prohibition would not applyhave applied to abortions that
arewere necessary to save the life of the minor because her life iswas endangered by a
physical disorder, physical injury, or physical illness.
H.R. 748, the Child Interstate Abortion Notification Act, incorporatesincorporated the
language of the Child Custody Protection Act, but also imposesimposed a 24-hour parental
notification requirement for abortions occurring outside a minor’s state of residence.
4
Additional versions of the Child Custody Protection Act have also been introduced as S.
396 and S. 8 in the 109th Congress. The language in all three measures is identical.
CRS-15
H.R. 748 was passed by the House on April 27, 2005 by a vote of 270-157. The
measure, introduced by Representative Ileana Ros-Lehtinen on February 10, 2005,
would requirehave required a physician who performs or inducesperformed or induced an abortion on a minor
who is a
was a resident of a state other than the state in which the abortion iswas performed
to provide
at least 24 hours written notice to a parent of the minor before performing the
the abortion. A parent who sufferssuffered harm from a violation of the notice requirement could
obtain
could have obtained appropriate relief in a civil action. The notice requirement
would not apply
have applied in certain specified situations, including those where the
abortion iswas necessary to save
the life of the minor because her life iswas endangered
by a physical disorder, physical
injury, or physical illness.
Legislation that would require an abortion provider or his agent to provide
specified information to a pregnant woman prior to the performance of an abortion
has also been introduced. S. 51, the Unborn Child Pain Awareness Act of 2005, was
introduced by Senator Sam Brownback on January 24, 2005. H.R. 356, the House
injury, or physical illness.
On September 26, 2006, the House considered an amendment in the nature of
a substitute to the version of S. 403 that was passed by the Senate. Voting 264-153,
the House passed S. 403, the Child Interstate Abortion Notification Act. Like H.R.
748, the House-passed version of S. 403 would have required a physician who
performed or induced an abortion on a minor who was a resident of a state other than
the state in which the abortion was performed to provide actual notice to a parent of
the minor at least 24 hours before performing the abortion.
The House-passed version of S. 403 would have made additional changes not
considered by H.R. 748, including a prohibition on the transportation of a minor
across a state line and into a foreign nation in circumvention of a law requiring
parental involvement in a minor’s abortion decision; the denial of a civil action to a
parent who committed an act of incest with the minor; and the establishment of
penalties for the transport of a minor across a state line for the purpose of obtaining
an abortion by someone who committed an act of incest with the minor. The 109th
Congress ended without a reconciliation of the House and Senate-passed versions of
S. 403.
Legislation that would have required an abortion provider or his agent to
provide specified information to a pregnant woman prior to the performance of an
abortion was also introduced. S. 51, the Unborn Child Pain Awareness Act of 2005,
was introduced by Senator Sam Brownback on January 24, 2005. H.R. 356, the
House version of the act, was introduced by Representative Christopher H. Smith on
January 25, 2005. Under the measure, an abortion provider or his agent would be
have
been required, prior to the performance of an abortion, to make a prescribed oral statement
statement to the pregnant woman, provide an “Unborn Child Pain Awareness
Brochure” to the
woman, and obtain the woman’s signature on an “Unborn Child
Pain Awareness
Decision Form.”
The act’s requirements would applyhave applied only when an abortion is being performed
was being
performed on a so-called “pain-capable unborn child.” The term “pain-capable
unborn child”
is was defined by the act to mean “an unborn child who has reached a
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probable stage of
development of 20 weeks after fertilization.” The requirements
would not apply
have applied during a medical emergency when delay of the procedure
would imposehave imposed “a serious
risk of causing grave and irreversible physical health
damage entailing substantial
impairment of a major bodily function.”56 Penalties for
knowing violations of the act
would includehave included suspension or revocation of a
medical license, or civil penalties.
FY2006 Appropriations
The FY2006 appropriations measures retainretained longstanding restrictions on the use
use of federal funds for abortion and abortion-related services. On November 14,
2005,
the President signed H.R. 3057, the FY2006 Foreign Operations appropriations
measure (P.L. 109-102). The bill providesprovided that none of the appropriated funds maycould
be made available to an organization or program that supports or participatessupported or participated in the
management of a program of coercive abortion or involuntary sterilization. In
addition, appropriated funds arewere not available for the performance of abortions as a
a method of family planning, or to motivate or coerce any person to practice
abortions.
Appropriated funds arewere not available to lobby for or against abortion.
To reduce
reliance on abortion in developing nations, funds arewere available only for voluntary
voluntary family planning projects which offeroffered a broad range of family planning
methods and
services. Such voluntary family planning projects must meet specified requirements.
5
S. 51, 109th Cong. § 3 (2005).
CRS-16were required to
meet specified requirements.
Contributions to the UNFPA arewere conditioned on the entity not funding
abortions.
In addition, amounts appropriated to the UNFPA under the measure mustwere
required to be kept in
an account that iswas separate from the UNFPA’s other
accounts. The UNFPA must not
could not commingle funds provided under the measure with
the entity’s other sums.
On November 22, 2005, the President signed H.R. 2862, the FY2006
appropriations measure for the Departments of Commerce, Justice, and State (P.L.
109-108). The bill prohibitsprohibited the use of funds to pay for abortions in the federal
prison system except in cases where the life of the mother would be have been
endangered if the
fetus werewas carried to term or in the case of rape.
Under H.R. 3058, the FY2006 appropriations measure for the Departments of
Transportation, Treasury, and Housing and Urban Development, the Judiciary, the
District of Columbia, and independent agencies, appropriated funds maycould not be used
used to pay for abortions or for any administrative expenses related to a health plan
in the
federal employees health benefits program that providesprovided benefits or coverage for
for abortions. H.R. 3058 also prohibitsprohibited the use of appropriated and local funds to
pay for
abortions in the District of Columbia except where the life of the mother
would be
have been endangered if the fetus was carried to term or where the pregnancy is
was the result of an
act of rape or incest. H.R. 3058 was signed by the President on
November 30, 2005
(P.L. 109-115).
6
S. 51, 109th Cong. § 3 (2005).
CRS-18
H.R. 3010, the FY2006 appropriations measure for the Departments of Labor,
Health and Human Services, and Education, and Related Agencies was signed by the
President on December 30, 2005 (P.L. 109-149). H.R. 3010 prohibitsprohibited the use of
funds, including funds derived from any trust fund that receivesreceived appropriations, for
abortions except in cases of rape or incest, or where a woman who sufferssuffered from a
physical disorder, injury, or illness would have her life jeopardized if an abortion was
not performed. H.R. 3010 includesincluded the nondiscrimination language that first
appeared in the FY2005 appropriations provisions for the Department of Health and
Human Services. This language prohibitsprohibited the availability of appropriated funds to
a federal agency or program or to a state or local government if such agency,
program, or government subjectssubjected a health care entity to discrimination on the basis
that the entity does not provide, pay for, provide coverage of, or refer for abortions.did not provide, pay for, provide coverage of, or refer for abortions.7
Legislation in the 110th Congress
On April 19, 2007, in apparent response to the Court’s decision in Gonzales, the
Freedom of Choice Act was introduced in the House by Representative Jerrold
Nadler and in the Senate by Senator Barbara Boxer (H.R. 1964/S. 1173). The
measure appears to codify the Court’s decision in Roe by stating that a government
may not deny or interfere with a woman’s right to choose to bear a child, to terminate
a pregnancy prior to viability, or to terminate a pregnancy after viability where
termination is necessary to protect the life or health of the woman. The act
authorizes an aggrieved individual to obtain appropriate relief, including relief
against a government, in a civil action.
7
See also CRS Report RS21428, The History and Effect of Abortion Conscience Clause
Laws, by Jon O. Shimabukuro.