Order Code IB95095
Issue Brief for Congress
Received through the CRS Web
Abortion:
Legislative Response
Updated March 20, 2003
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 107th Congress
Legislation in the 108th Congress

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

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MOST RECENT DEVELOPMENTS
On March 13, 2003, the Senate passed S. 3, the Partial-Birth Abortion Ban Act of 2003,
by a vote of 64-33. S. 3 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. Although the U.S.
Supreme Court has held that restrictions on abortion must allow for the performance of an
abortion when it is necessary to protect the health of the mother, S. 3 does not include such
an exception. In the introductory statement for S. 3, Senator Rick Santorum, the bill’s
sponsor, indicated that a health exception was not needed because 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.” The House is expected to consider the measure before the summer.
BACKGROUND AND ANALYSIS
Judicial History
The primary focus of this issue brief is legislative action in the 108th Congress with
respect to abortion. However, discussion of those 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.
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
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carry a pregnancy to term. Regarding the scope of that privacy 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.
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), 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 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.
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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 formed the grist for a burgeoning book 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)); 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.
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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
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
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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.
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 had 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 was 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
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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.
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
On June 28, 2000, the U.S. Supreme 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. 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.
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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.
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 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.
Two bills that would prohibit partial-birth abortions have been introduced in the 108th
Congress. H.R. 760, the Partial-Birth Abortion Ban Act of 2003, was introduced by
Representative Steve Chabot on February 13, 2003. A companion measure, S. 3, was
introduced by Senator Rick Santorum on February 14, 2003. S. 3 was passed by the Senate
on March 13, 2003 by a vote of 64-33. The House is expected to consider the measure
before the summer. In general, the House and Senate measures resemble the Partial-Birth
Abortion Ban Act of 2002 in language and form.1
Like the 2002 measure, the Partial-Birth Abortion Ban Act of 2003 does not provide an
exception for the performance of a partial-birth abortion when the health of the mother is an
issue. Despite the absence of such an exception, 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.
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 have been, the 107th
Congress continued to be a forum for proposed legislation and constitutional amendments
1 S. 3, as passed by the Senate, includes a sense of the Senate that Roe v. Wade was “appropriate”
and “should not be overturned.” H.R. 760 does not include similar language.
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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.
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.]
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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)).
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.”
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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.
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
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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 107th Congress
On January 10, 2002, 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 were similar to those in past
appropriations bills.
Under H.R. 2506, none of the appropriated funds could be made available to an
organization or program which, as determined by the President, supported or participated in
the management of a program of coercive abortions or involuntary sterilizations.
Appropriated funds were 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 could not be used to lobby for or against abortion.
H.R. 2506 conditioned contributions to the United Nations Population Fund (UNFPA)
on the UNFPA not funding abortions. For FY2002, not more than $34 million was
earmarked for the UNFPA. Concern over China’s population control methods prompted the
White House to put a temporary hold on funds to the UNFPA. Although the UNFPA
maintained that it did not fund abortions, antiabortion groups argued that the UNFPA “tacitly
condones forced abortions and sterilizations by providing aid to family planning programs
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in China.”2 On July 22, 2002, the Bush administration announced that it would withhold the
$34 million from the UNFPA. The earmarked money was reportedly diverted to child and
maternal health programs administered by the U.S. Agency for International Development.3
H.R. 3061 prohibited 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
suffered from a physical disorder, injury, or illness that would have placed her life in danger
if an abortion was not performed. This restriction followed 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 prohibited the use of
appropriated funds and local funds to perform any abortion except when the pregnancy was
the result of rape or incest or when the life of the mother would have been endangered if the
fetus was carried to term.
On November 28, 2001, the President signed H.R. 2500, the Commerce, Justice, State,
and Judiciary appropriations measure for FY2002 (P.L. 107-77). H.R. 2500 prohibited the
use of appropriated funds for the performance of abortions in the federal prison system. This
prohibition followed 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, 2001 (P.L. 107-67). H.R. 2590 prohibited the use
of appropriated funds to pay for any abortion except in cases of rape or incest or where an
abortion was necessary to save the life of the mother. H.R. 2590 also restricted the payment
of administrative expenses in connection with any health plan under the federal employees
health benefit program that provided any benefits or coverage for abortions.
In addition to the five appropriations measures discussed here, five other bills should
be noted. On August 5, 2002, the President signed H.R. 2175, the Born-Alive Infants
Protection Act of 2002 (P.L. 107-207). H.R. 2175 required that the terms “person,” “human
being,” “child,” and “individual,” as used in any act of Congress or administrative ruling,
regulation, or interpretation be understood as including infants who are “born alive” at any
stage of development. Under the Act, the term “born alive” referred to an infant who is
expelled or extracted from the mother and is breathing, has a beating heart, a pulsating
umbilical cord, or definite muscle movement. The expulsion or extraction could occur as
a result of natural or induced labor, cesarean section, or induced abortion.
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 106th
Congress, would have created a separate offense for harming or killing an "unborn child" in
utero during the commission of a violent crime. Although the Act would not have permitted
the prosecution of doctors who perform abortions, opponents of the bill maintained that it
2 Juliet Eilperin, Family Planning Funds Put on Hold, Wash. Post, Jan. 12, 2002, at A2.
3 Juliet Eilperin, U.S. Withholds $34 Million in Family Planning Funding to U.N., Wash. Post, July
23, 2002, at A2.
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would have established rights for the unborn that could later be used to undermine the right
to abortion. H.R. 503 was not considered by the Senate.
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 have prohibited the knowing transport of a minor
across state lines for the purpose of obtaining an abortion. The bill sought to prevent the
abridgement of parental consent requirements in a minor’s residing state. Violators of the
Act would have been 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 allowed any parent who
suffered legal harm because of a violation of the Act to obtain appropriate relief in a civil
action. The Act’s prohibition would not have applied if the abortion was necessary to save
the life of the minor because her life was endangered by a physical disorder, physical injury,
or physical illness. Similar bills were passed by the House during the 105th and 106th
Congresses. However, the Senate failed to take further action on both measures. H.R. 476
was also not considered by the Senate.
H.R. 4965, the Partial-Birth Abortion Ban Act of 2002, was passed by the House on
July 24, 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 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.
Although H.R. 4965 did not provide an exception for the performance of a partial-birth
abortion when the health of the mother was an issue, supporters of the measure maintained
that the bill was not unconstitutional. They contended that congressional hearings and fact
finding revealed that a “partial-birth” abortion was never necessary to preserve the health
of a woman, and that such an abortion posed serious risks to a woman’s health. H.R. 4965
was not considered by the Senate.
Finally, H.R. 4691, the Abortion Non-Discrimination Act of 2002, was passed by the
House on September 25, 2002 by a vote of 229-189. H.R. 4691 would have amended
existing restrictions on the federal government and state or local governments that receive
federal financial assistance. Under current law, those governments may not “subject any
health care entity to discrimination” on the basis of the entity’s refusal to perform induced
abortions and refusal to provide training in the performance of such abortions. The term
“health care entity” is defined under existing law to include an individual physician, a
postgraduate training program, and a participant in a program of training in the health
professions. H.R. 4691 would have expanded that definition to include other health
professionals, hospitals, health maintenance organizations, health insurance plans, and any
other kind of health care facility. H.R. 4691 would have also restricted discrimination
against health care entities that refuse to engage in additional activities. Under the bill,
health care entities that refused to provide coverage for abortion and refused to pay for
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induced abortions could not be subject to adverse action by the federal government or state
or local governments that receive federal financial assistance. H.R. 4691 was not considered
by the Senate.
Legislation in the 108th Congress
On February 20, 2003, the President signed H.J.Res. 2, the Consolidated Appropriations
Resolution, 2003 (P.L. 108-7). This omnibus measure encompasses the FY2003
appropriations of eleven spending measures. In general, the omnibus measure maintains
longstanding restrictions on the availability of federal funds for abortions.
Under the omnibus measure, appropriated funds may not be used to pay for abortions
in the federal prison system, except where the life of the mother would be endangered if the
fetus were carried to term, or in the case of rape. The measure also prohibits the use of
appropriated funds and local funds to perform any abortion in the District of Columbia,
except where the life of the mother would be endangered if the fetus were carried to term,
or where the pregnancy is the result of rape or incest.
With respect to foreign operations, the omnibus measure provides that none of the
appropriated funds and none of the unobligated balances from prior appropriations may be
made available to any organization or program which, as determined by the President,
supports or participates in the management of a program of coercive abortion or involuntary
sterilization. Appropriated funds may not be used overseas to pay for abortion as a method
of family planning or to motivate or coerce any person to perform abortions. In addition,
appropriated funds may not be used to lobby for or against abortion. Finally, appropriated
funds shall be available only to voluntary family planning projects that meet specified
requirements.
Under the omnibus measure, funds appropriated in P.L. 107-115, the FY2002 Foreign
Operations appropriations measure, that were available for the UNFPA, and an equal amount
in the FY2003 omnibus measure, shall be made available to the UNFPA if the President
determines that the UNFPA no longer supports or participates in the management of a
program of coercive abortion or involuntary sterilization. The omnibus measure stipulates
that none of the funds made available to the UNFPA may be used in the People’s Republic
of China. Amounts spent by the UNFPA in the People’s Republic of China in calendar years
2002 and 2003, as determined by the Secretary of State, shall be deducted from funds made
available to the UNFPA under P.L. 107-115 and the FY2003 omnibus measure.
Provisions of the omnibus measure concerning the Departments of Labor, HHS, and
Education provide that none of the appropriated funds and none of the funds in any trust fund
to which funds are appropriated under the omnibus measure, may be expended for abortion,
except where the pregnancy is the result of rape or incest, or where the mother’s life would
be endangered if an abortion is not performed. The Treasury and Postal Service provisions
of the omnibus measure also prohibit 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.
However, this restriction does not apply where the life of the mother would be endangered
if the fetus were carried to term, or the pregnancy is the result of rape or incest.
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On March 13, 2003, the Senate passed S. 3, the Partial-Birth Abortion Ban Act of 2003,
by a vote of 64-33. S. 3 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. S. 3 would also express
the sense of the Senate that Roe was “appropriate” and should not be overturned.
Although the U.S. Supreme Court has held that restrictions on abortion must allow for
the performance of an abortion when it is necessary to protect the health of the mother, S. 3
does not include such an exception. In the introductory statement for S. 3, Senator Rick
Santorum, the bill’s sponsor, indicated that a health exception was not needed because
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.” The House is expected to consider the
measure before the summer.
S. 146, the Unborn Victims of Violence Act of 2003, was introduced by Senator Mike
DeWine on January 13, 2003. The Act 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 prosecution of doctors who perform abortions, opponents of the measure
argue that it would establish rights for the unborn that could later be used to undermine the
right to abortion.
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