Order Code IB95095
Issue Brief for Congress
Received through the CRS Web
Abortion:
Legislative Response
Updated July 19, 2002
Karen J. Lewis, Jon O. Shimabukuro, Dana Ely
American Law Division
Congressional Research Service ˜ The Library of Congress

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CONTENTS
SUMMARY
MOST RECENT DEVELOPMENTS
BACKGROUND AND ANALYSIS
Judicial History
Roe v. Wade and Doe v. Bolton
Supreme Court Decisions Subsequent to Roe and Doe
Webster
Casey
Public Funding of Abortions
The 1977 Trilogy — Restrictions on Public Funding of Nontherapeutic or Elective
Abortions
Public Funding of Therapeutic or Medically Necessary Abortions
Partial-Birth Abortion
Legislative History
Constitutional Amendments
Statutory Provisions
Bills that Seek to Prohibit Abortion by Statute
Hyde-Type Amendments to Appropriation Bills
Other Legislation
Legislation in the 106th Congress
First Session
Second Session
Legislation in the 107th Congress

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Abortion: Legislative Response
SUMMARY
In 1973, the U.S. Supreme Court held
abortion issue such as the Freedom of Choice
that the Constitution protects a woman’s
Act.
decision whether to terminate her pregnancy,
Roe v. Wade, 410 U.S. 113, and that a state
In each Congress since 1973 constitu-
may not unduly burden the exercise of that
tional amendments or statutory provisions to
fundamental right by regulations that prohibit
prohibit abortion have been introduced. These
or substantially limit access to the means of
measures have been considered in committee
effectuating that decision, Doe v. Bolton, 410
but none has been passed by either the House
U.S. 179. But rather than settling the issue,
or the Senate.
the Court’s rulings have kindled heated debate
and precipitated a variety of governmental
Since Roe v. Wade, Congress has at-
actions at the national, state, and local levels
tached abortion funding restrictions to numer-
designed either to nullify the rulings or hinder
ous appropriations measures. The greatest
their effectuation. These governmental regu-
focus has been on restricting Medicaid abor-
lations have, in turn, spawned further litiga-
tions under the annual appropriations for the
tion in which resulting judicial refinements in
Department of Health and Human Services.
the law have been no more successful in
This series of restrictions is popularly known
dampening the controversy.
as the “Hyde Amendments.” Restrictions on
the use of appropriated funds affect numerous
In recent years, the rights enumerated in
federal entities, including the Department of
Roe have been redefined by decisions such as
Justice, where federal funds may not be used
Webster v. Reproductive Health Services,
to perform abortions in the federal prison
which gave greater leeway to the States to
system except in cases of rape or endanger-
restrict abortion, and Rust v. Sullivan, which
ment of the mother, and the District of Colum-
narrowed the scope of permissible
bia, where both federal and local funds may
abortion-related activities that are subject to
not be used to perform abortions except in
federal funding. The decision in Planned
cases of rape, incest or endangerment of the
Parenthood v. Casey gave Congress additional
mother.
impetus to move on statutory responses to the
Congressional Research Service ˜ The Library of Congress

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MOST RECENT DEVELOPMENTS
On July 17, 2002, the House Committee on the Judiciary approved H.R. 4965, the
Partial-Birth Abortion Ban Act of 2002, by a vote of 20-8. H.R. 4965 would prohibit
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 would be subject to a fine, imprisonment
for not more than two years, or both. Further discussion of H.R. 4965 is included in the
Legislation in the 107th Congress section of this report.
BACKGROUND AND ANALYSIS
Judicial History
The primary purpose of this issue brief is to focus on the current legislative action in the
107th Congress with respect to abortion; however, understanding that legislation requires a
review of the U. S. Supreme Court’s leading decisions concerning a woman’s right to choose
whether to terminate her pregnancy. For a detailed discussion of the case law, see CRS
Report 95-724, Abortion Law Development: A Brief Overview.
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, and Doe v. Bolton, 410 U.S. 179. 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 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. Regarding the scope of that right, the Court stated that it included
“only personal rights 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.
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113, 152-153 (1973). 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), and 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 held 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- 164.
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 164-165.
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 196-199. 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 197-198.
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 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 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
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also not addressed in Roe and Doe, but instead formed the grist for a burgeoning book of
post-Roe litigation.
Supreme Court Decisions Subsequent to Roe and Doe
The post-Roe litigation involved 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)); and 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).
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.
This case can better be described as one involving a challenge to First Amendment free
speech rights than to the constitutionally guaranteed substantive right to an abortion;
however, following its earlier public funding cases (Maher v. Roe and Harris v. McRae) as
precedent, the Court did conclude that a woman’s right to an abortion was not burdened by
these regulations. The Court reasoned that there was no such 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.”
For the purpose of this issue brief, the two landmark cases relevant for discussion are
Webster v. Reproductive Health Services, 492 U.S. 490 (1989), and Planned Parenthood of
Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), because they represent a shift in
direction by the Supreme Court from the type of constitutional analysis it articulated in Roe
v. Wade and have implications for future legislative action and how such statutory
enactments will be judged by the courts in the years to come.
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.
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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
have become law have been 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, 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 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.
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. Those provisions upheld were the 24-hour waiting period; informed consent;
parental consent for minors’ abortions with a judicial bypass; and reporting requirements.
The spousal notification provision, requiring a married woman to tell her husband she
intends to have an abortion, did not survive the “undue burden” test, and it was struck down
as being unconstitutional.
The Court’s decision in Casey is significant because under the new standard of review
more state restrictions will be able to pass constitutional muster. Also, the Court found that
the state’s interest in protecting the potentiality of human life extended throughout the course
of the pregnancy, and thus the state could regulate, even to the point of favoring childbirth
over abortion, from the outset. Under Roe, which utilized the trimester framework, during
the first trimester of pregnancy, the woman’s decision to terminate her pregnancy was
reached in consultation between her and her doctor with virtually no state involvement.
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Also, 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 will allow more regulation during that period. This is evident from
the fact that in Casey the 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 the 1983 and 1986 cases, the Court, applying strict scrutiny, had struck down
24-hour waiting periods and informed consent provisions; whereas in Casey, applying undue
burden, the Court upheld similar provisions.
Casey will have its greatest immediate effect on women in the State of Pennsylvania;
however, its reasoning invites other states to pass similar restrictions or different ones which
when challenged will be reviewed by the courts using the “undue burden” analysis. Finally,
the Court in Casey left the door open for further challenges to the Pennsylvania statute once
the law is actually applied. The Court specifically indicated that the abortion clinics which
challenged the law would have the opportunity to document the effects of the waiting period
and other provisions to show that while facially these provisions did not impose an “undue
burden”, in practice they did.
Public Funding of Abortions
After the Supreme Court’s decisions in Roe and Doe, one of the first federal legislative
responses was enactment of restrictions on the use of federal money for abortions, e.g.,
restrictions on Medicaid funds (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
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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.
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 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 a state of 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
For the first time since Casey, the Court has decided a case on abortion. On June 28,
2000, the U.S. Supreme Court invalidated a Nebraska statute that prohibited the performance
of so-called partial-birth abortions. In Stenberg v. Carhart, 530 U.S. 914 (2000), the Court
determined that the Nebraska statute 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. In affirming the decision of the Eighth U.S. Circuit
Court of Appeals, the Court agreed that the language could be interpreted to prohibit not just
the dilation and extraction (D&X) procedure that pro-life advocates oppose, but the 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 Clinton focused on the failure to include an exception to the ban
when the mother’s health is an issue. The Court’s decision reaffirms the need for such
language.
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Legislative History
Rather than settle the issue, the Court’s decisions in Roe v. Wade and Doe v. Bolton
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 hinder their effectuation. As
the previous Congresses have been, the 107th Congress continues to be a forum for proposed
legislation and constitutional amendments aimed at limiting or prohibiting the practice of
abortion. 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, ten 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.
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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
seq., daily ed., June 27, 1983; 129 Congressional Record S9265, et seq., daily ed., June 28,
1983.]
Statutory Provisions
Bills that Seek to Prohibit 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.
During the 98th Congress, Representative Hyde introduced a similar bill, H.R. 618,
which contained additional details. The bill would have prohibited federal involvement in
the performance of abortion, except when the life of the mother would be endangered if the
child were carried to term, and included the following activities within the scope of its
proscription: (1) performance of an abortion by an agency of the United States; (2) use of
appropriated funds to perform or reimburse or refer for abortion; (3) promotion or assistance
in the performance of abortion abroad; (4) contracting for insurance which pays or
reimburses for abortions; (5) discrimination against an individual on the basis of that
person’s opposition to abortion; and (6) the withholding from a handicapped infant of
nutritional sustenance or medical or surgical treatment by an institution receiving federal
assistance. The bill also provided for expedited Supreme Court review of state laws
restricting abortions or infanticide whenever such laws have been invalidated by a lower
court. A discharge petition was filed March 23, 1983, in an effort to move the bill out of
committee, but no additional action was taken in the 98th Congress. Subsequent Congresses
have seen no significant action on these types of statutory prohibitions.
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
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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)).
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 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.
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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-life- saving 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 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 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.
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Legislation in the 106th Congress
First Session
The 106th Congress, like its predecessors, continued the debate on abortion. In addition
to the reintroduction of both the Partial-Birth Abortion Ban Act and the Child Custody
Protection Act, five of the thirteen appropriations bills for FY2000 passed with language
limiting the use of federal funds for abortions. The State Department authorization bill for
FY2000 and FY2001 included similar language. One other measure, the Agriculture FY2000
Appropriations bill, contained restrictive language in its House version, but did not include
that language in its final version.
The Commerce, Justice, State appropriations measure, the Foreign Operations
appropriations measure, the Labor/HHS/Education appropriations measure, and the State
Department authorization bill were incorporated by reference into H.R. 3194, the
Consolidated Appropriations Act for FY2000, and enacted as part of that legislation. The
conference report for H.R. 3194, H.Rept. 106-479, was adopted by the House on November
18 by a vote of 296-135. The Senate adopted H.Rept. 106-479 on November 19 by a vote
of 74-24. H.R. 3194 was signed by the President on November 29 (P.L. 106-113).
H.R. 3194 and the appropriations and authorization measures referenced within it
included numerous restrictions on abortion funding:
! The District of Columbia appropriations measure restricted the use of
federal and local funds to pay for abortions, except where the life of the
mother was endangered or where the pregnancy was the result of rape or
incest.
! H.R. 3421, the appropriations measure for the Commerce, Justice, and State
Departments, prohibited the use of funds to perform abortions in the federal
prison system, except in the case of rape or where the life of the mother was
endangered by the fetus being carried to term.
! H.R. 3424, the appropriations measure for the Departments of Labor, HHS,
and Education, prohibited the use of funds, including money derived from
any trust fund that receives appropriations, for abortions except in cases of
rape or incest or where a woman suffered from a physical disorder, injury,
or illness that would place her life in danger if an abortion was not
performed. H.R. 3424 also restricted the use of funds for the creation of
human embryos for research purposes or for research in which human
embryos were destroyed, discarded, or knowingly subjected to risk of injury
greater than allowed currently under federal regulation.
! H.R. 3422, the Foreign Operations appropriations measure, maintained
longstanding policies against the use of U.S. funds for programs that
promoted coercive abortions and abortion as a method of family planning.
H.R. 3422 conditioned contributions to the United Nations Population Fund
(UNFPA) on the UNFPA not funding abortions. H.R. 3422 also prohibited
aid to foreign organizations that lobby against the abortion laws or policies
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of any foreign country, even if the organizations used their own funds.
Although this restriction could be waived by the President, funding for
population planning activities would be reduced by 3 percent if such a
waiver were elected. On November 30, the President directed the State
Department to lift the restriction on federal financing.
! H.R. 3427, the State Department authorization measure for FY 2000 and FY
2001, also conditioned contributions to UNFPA on its not funding abortions.
H.R. 3427 prohibited the admission of any foreign national who was
involved either in the establishment or enforcement of abortions abroad.
On September 29, the President signed H.R. 2490, the Treasury and Postal Service
appropriations measure (P.L. 106-58). H.R. 2490 prohibited the Federal Employee Health
Benefit Program from paying for abortions except when the life of the mother was
endangered, or in cases of rape or incest. The measure also barred the use of federal money
for entering or renewing contracts that included prescription drug coverage, except where the
contracts included contraceptive coverage.
The Partial-Birth Abortion Ban Act of 1999 (S. 928) was introduced on April 29, 1999
(reintroduced as S. 1692 on October 5, 1999). Under the Act, a physician could be fined
and/or imprisoned for knowingly performing a partial-birth abortion. The Senate passed the
Act on October 21 by a vote of 63-34. On April 5, 2000, the House passed H.R. 3660, the
Partial-Birth Abortion Ban Act of 2000, by a vote of 287-141. Although the House requested
a conference, no further action was taken.
The Child Custody Protection Act (S. 661/H.R. 1218) was passed by the House on June
30 by a vote of 270-159. H.R. 1218 was received in the Senate, but no further action was
taken. S. 661 was referred to the Senate Committee on Judiciary, but received no further
action. The Act would have prohibited the knowing transport of a minor across state lines
for the purpose of obtaining an abortion. The Act sought to prevent the abridgement of
parental consent requirements in a minor’s residing state.
Finally, on September 30, the House passed a bill that would create a separate offense
for harming or killing a fetus during the commission of a violent crime. While the Unborn
Victims of Violence Act of 1999 (H.R. 2436) included language clarifying that the
legislation was not intended to apply to individuals conducting consensual abortions,
opponents argued that the bill sought to establish a fetus as an unborn person. Opponents
feared that such recognition would be an incremental step toward overturning Roe. An
amendment that would have established sentencing enhancements rather than a separate
offense was defeated. The bill passed by a vote of 254-172.
Second Session
In general, the abortion funding restrictions found in the FY2001 appropriations
measures are similar to those in the appropriations measures for FY2000. The most notable
change is the removal of language in the Foreign Operations appropriations measure that
prohibits aid to foreign organizations that lobby against the abortion policies of any foreign
country even when such organizations use their own funds.
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Enactment of the Labor/HHS/Education, Treasury and Postal Service, and Commerce,
Justice, State, and Judiciary appropriations bills, three measures of particular importance for
abortion, did not occur until December 21, 2000 (P.L. 106-554). H.R. 4577, the
Consolidated Appropriations Act, 2001, incorporated the provisions of H.R. 5656, the
Labor/HHS/Education appropriations bill, and H.R. 5658, the Treasury and Postal Service
appropriations bill. H.R. 4942, which had originally included appropriations for the District
of Columbia and the Departments of Commerce, Justice, State and the Judiciary, was enacted
with only the Commerce, Justice, State, and Judiciary provisions on December 21, 2000
(P.L. 106-553). Appropriations for the District of Columbia were included in a separate bill,
H.R. 5633, and determined prior to the enactment of H.R. 4942. H.R. 5633 was signed on
November 22, 2000 (P.L. 106-522).
H.R. 5656, the appropriations measure for the Departments of Labor, HHS, and
Education (incorporated by reference into H.R. 4577), prohibited the use of appropriated
funds and any funds from a trust fund that receives appropriations for an abortion except
when the pregnancy is the result of rape or incest, or where the woman suffers from a
physical disorder, injury, or illness that would place the woman in danger of death unless an
abortion is performed. Further, H.R. 5656 prohibited the use of appropriated funds and any
funds from a trust fund that receives appropriations for health benefits coverage that includes
abortion.
H.R. 5658, the Treasury and Postal Service appropriations measure (incorporated by
reference into H.R. 4577), prohibited the use of appropriated funds to pay for an abortion or
the administrative expenses in connection with any health plan under the Federal employees
health benefit program which provides any benefits or coverage for abortions.
H.R. 5548, the appropriations measure for the Departments of Commerce, Justice, and
State and the Judiciary (incorporated by reference into H.R. 4942), prohibited the use of
appropriated funds to perform abortions in the federal prison system, but maintained the
requirement that the Director of the Bureau of Prisons provide escort services to female
inmates who seek abortions outside of a federal facility.
H.R. 5633, the appropriations measure for the District of Columbia, maintained existing
restrictions on the use of federal and local funds to pay for abortions. Such funds may be
used only when the life of the mother is endangered or where the pregnancy is the result of
rape or incest.
H.R. 4811, the Foreign Operations appropriations measure, was signed by the President
on November 6, 2000 (P.L. 106-429). H.R. 4811 maintained longstanding policies against
the use of U.S. funds for programs that promote coercive abortions and abortion as a method
of family planning. However, H.R. 4811 did not restrict the availability of appropriated
funds for foreign organizations that use their own funds to lobby against abortion policies.
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Legislation in the 107th Congress
On January 10, the President signed H.R. 2506, the FY2002 Foreign Operations
appropriations measure (P.L. 107-115), and H.R. 3061, the FY2002 Labor, HHS, Education
appropriations measure (P.L. 107-116). These two bills were the last of five appropriations
measures with notable abortion or family planning provisions. In general, the funding
restrictions included in the five appropriations measures are similar to those in past
appropriations bills.
Under H.R. 2506, none of the appropriated funds may be made available to an
organization or program which, as determined by the President, supports or participates in
the management of a program of coercive abortions or involuntary sterilizations.
Appropriated funds are also not available for the performance of abortion as a method of
family planning or to motivate or coerce any person to practice abortions. Appropriated
funds may not be used to lobby for or against abortion.
H.R. 2506 conditions contributions to the United Nations Population Fund (UNFPA)
on the UNFPA not funding abortions. For FY2002, not more than $34 million shall be made
available to the UNFPA. For FY2001, $25 million was made available to the UNFPA.
Concern over China’s population control methods has prompted the White House to put a
temporary hold on funds to the UNFPA. Although the UNFPA contends that it does not fund
abortions, antiabortion groups maintain that the UNFPA “tacitly condones forced abortions
and sterilizations by providing aid to family planning programs in China.”1 A final decision
is forthcoming.
H.R. 3061 would prohibit the use of funds, including funds derived from any trust fund
that receives appropriations, for abortions except in cases of rape or incest or where a woman
suffers from a physical disorder, injury, or illness that would place her life in danger if an
abortion is not performed. This restriction follows similar restrictions in past Labor, HHS,
Education appropriations measures.
H.R. 2944, the FY2002 appropriations measure for the District of Columbia, was signed
by the President on December 21, 2001 (P.L. 107-96). H.R. 2944 would prohibit the use of
appropriated funds to perform any abortion except when the pregnancy is the result of rape
or incest or when the life of the mother would be endangered if the fetus was carried to term.
On November 28, the President signed H.R. 2500, the Commerce, Justice, State
appropriations measure for FY2002 (P.L. 107-77). H.R. 2500 prohibits the use of
appropriated funds for the performance of abortions in the federal prison system. This
prohibition follows similar restrictions found in past Commerce, Justice, State appropriations
measures.
H.R. 2590, the Treasury and Postal Service appropriations measure for FY2002 was
signed by the President on November 12 (P.L. 107-67). H.R. 2590 prohibits the use of
appropriated funds to pay for any abortion except in cases of rape or incest or where an
abortion is necessary to save the life of the mother. H.R. 2590 also restricts the payment of
1 Juliet Eilperin, Family Planning Funds Put on Hold, Wash. Post, Jan. 12, 2002, at A2.
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administrative expenses in connection with any health plan under the federal employees
health benefit program that provides any benefits or coverage for abortions.
In addition to the five appropriations measures discussed here, four other bills should
be noted. H.R. 2175, the Born-Alive Infants Protection Act of 2001, was passed by the
House on March 12, 2002 by voice vote. On July 18, 2002, the Senate passed the measure
by voice vote. Action by the President is expected. H.R. 2175 would require the terms
“person,” “human being,” “child,” and “individual,” as used in any act of Congress or
administrative ruling, regulation, or interpretation to be understood as including infants who
are “born alive” at any stage of development. Under the bill, the term “born alive” refers to
an infant who has been expelled or extracted from the mother and who is breathing, has a
beating heart, a pulsating umbilical cord, or definite muscle movement. The expulsion or
extraction may occur as a result of natural or induced labor, cesarean section, or induced
abortion. During the 106th Congress, the House passed H.R. 4292, the Born-Alive Infants
Protection Act of 2000. That bill was not considered by the Senate.
On April 26, 2001, the House passed H.R. 503, the Unborn Victims of Violence Act of
2001, by a vote of 252-172. The Act, a version of which passed the House during the 106
Congress, would create a separate offense for harming or killing an "unborn child" in utero
during the commission of a violent crime. Although the Act would not permit the
prosecution of doctors who perform abortions, opponents of the bill maintain that it would
establish rights for the unborn that could later be used to undermine the right to abortion.
H.R. 476, the Child Custody Protection Act, was passed by the House on April 17, 2002
by a vote of 260-161. The bill would prohibit the knowing transport of a minor across state
lines for the purpose of obtaining an abortion. The bill seeks to prevent the abridgement of
parental consent requirements in a minor’s residing state. Violators of the Act shall be fined
in accordance with Title 18 of the United States Code or imprisoned for not more than one
year, or both. In addition, the Act allows any parent who suffers legal harm because of a
violation of the Act to obtain appropriate relief in a civil action. The Act’s prohibition does
not apply if the abortion is necessary to save the life of the minor because her life is
endangered by a physical disorder, physical injury, or physical illness.
Similar bills were passed by the House during the 105th and 106th Congresses. The
Senate failed to take further action on both measures. H.R. 476 has been received in the
Senate and has been referred to the Senate Committee on the Judiciary.
Finally, the House Committee on the Judiciary approved H.R. 4965, the Partial-Birth
Abortion Ban Act of 2002, by a vote of 20-8 on July 17, 2002. Introduced on June 19, 2002,
H.R. 4965 would prohibit 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. The bill defines 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 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
violate the Act would be subject to a fine, imprisonment for not more than two years, or both.
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Although H.R. 4965 does not provide an exception for the performance of a “partial-
birth” abortion when the health of the mother is at issue, supporters of the measure maintain
that the bill is not unconstitutional. They contend that congressional hearings and fact
finding have revealed that a “partial-birth” abortion is never necessary to preserve the health
of a woman, and that such an abortion poses serious risks to a woman’s health. The bill is
expected to be considered on the House floor in the near future.
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