Abortion: Judicial History and
Legislative Response
Jon O. Shimabukuro
Legislative Attorney
September 16, 2015
Congressional Research Service
7-5700
www.crs.gov
RL33467

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Abortion: Judicial History and Legislative Response

Summary
In 1973, the U.S. Supreme Court concluded in Roe v. Wade that the U.S. Constitution protects a
woman’s decision to terminate her pregnancy. In Doe v. Bolton, a companion decision, the Court
found that a state may not unduly burden the exercise of that fundamental right with regulations
that prohibit or substantially limit access to the means of effectuating the decision to have an
abortion. Rather than settle the issue, the Court’s rulings since Roe and Doe have continued to
generate debate and have precipitated a variety of governmental actions at the national, state, and
local levels designed either to nullify the rulings or limit their effect. These governmental
regulations have, in turn, spawned further litigation in which resulting judicial refinements in the
law have been no more successful in dampening the controversy.
In recent years, the rights enumerated in Roe have been redefined by decisions such as Webster v.
Reproductive Health Services, which gave greater leeway to the states to restrict abortion, and
Rust v. Sullivan, which narrowed the scope of permissible abortion-related activities that are
linked to federal funding. The Court’s decision in Planned Parenthood of Southeastern
Pennsylvania v. Casey, which established the “undue burden” standard for determining whether
abortion restrictions are permissible, gave Congress additional impetus to move on statutory
responses to the abortion issue, such as the Freedom of Choice Act.
Legislation to prohibit a specific abortion procedure, the so-called “partial-birth” abortion
procedure, was passed in the 108th Congress. The Partial-Birth Abortion Ban Act appears to be
one of the only examples of Congress restricting the performance of a medical procedure.
Legislation that would prohibit the knowing transport of a minor across state lines for the purpose
of obtaining an abortion has been introduced in numerous Congresses.
Since Roe, Congress has attached abortion funding restrictions to various appropriations
measures. The greatest focus has arguably been on restricting Medicaid abortions under the
annual appropriations for the Department of Health and Human Services. This restriction is
commonly referred to as the “Hyde Amendment” because of its original sponsor. Similar
restrictions affect the appropriations for other federal entities, including the Department of
Justice, where federal funds may not be used to perform abortions in the federal prison system,
except in cases of rape or if the life of the mother would be endangered. Hyde-type amendments
also have an impact in the District of Columbia, where federal funds may not be used to perform
abortions except in cases of rape, incest, or where the life of the mother would be endangered,
and affect international organizations like the United Nations Population Fund, which receives
funds through the annual Foreign Operations appropriations measure.
The debate over abortion continued in the context of health reform. The Patient Protection and
Affordable Care Act (ACA), enacted on March 23, 2010, includes provisions that address the
coverage of abortion services by qualified health plans that are available through health benefit
exchanges. The ACA’s abortion provisions have been controversial, particularly with regard to the
use of premium tax credits or cost-sharing subsidies to obtain health coverage that includes
coverage for elective or non-therapeutic abortion services. Under the ACA, individuals who
receive a premium tax credit or cost-sharing subsidy are permitted to select a qualified health plan
that includes coverage for elective abortions, subject to funding segregation requirements that are
imposed on both the plan issuer and the enrollees in such a plan.
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Abortion: Judicial History and Legislative Response

Contents
Judicial History ................................................................................................................................ 1
Roe v. Wade and Doe v. Bolton .................................................................................................. 1
Supreme Court Decisions Subsequent to Roe and Doe ............................................................. 2
Webster ...................................................................................................................................... 3
Casey ......................................................................................................................................... 4
Partial-Birth Abortion ................................................................................................................ 5
Ayotte ......................................................................................................................................... 7
Public Funding of Abortions ........................................................................................................... 8
The 1977 Trilogy—Restrictions on Public Funding of Nontherapeutic or Elective
Abortions ................................................................................................................................ 9
Public Funding of Therapeutic or Medically Necessary Abortions .......................................... 9
Legislative History .......................................................................................................................... 9
Constitutional Amendments .................................................................................................... 10
Statutory Provisions ................................................................................................................ 10
Bills that Seek to Prohibit the Right to Abortion by Statute ............................................. 10
Hyde-Type Amendments to Appropriations Measures ...................................................... 11
Other Legislation ..................................................................................................................... 12
Health Reform ............................................................................................................................... 13
Legislation in the 113th Congress .................................................................................................. 14
FY2014 Appropriations ........................................................................................................... 14
Additional Legislation ............................................................................................................. 15
FY2015 Appropriations ........................................................................................................... 16
Legislation in the 114th Congress .................................................................................................. 16

Contacts
Author Contact Information .......................................................................................................... 16

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Abortion: Judicial History and Legislative Response

In 1973, the U.S. Supreme Court concluded in Roe v. Wade, 410 U.S. 113 (1973), that the U.S.
Constitution protects a woman’s decision to terminate her pregnancy. In Doe v. Bolton, 410 U.S.
179 (1973), a companion decision, the Court found that a state may not unduly burden the
exercise of that fundamental right with regulations that prohibit or substantially limit access to the
means of effectuating the decision to have an abortion. Rather than settle the issue, the Court’s
rulings since Roe and Doe have continued to generate debate and have precipitated a variety of
governmental actions at the national, state, and local levels designed either to nullify the rulings
or limit their effect. These governmental regulations have, in turn, spawned further litigation in
which resulting judicial refinements in the law have been no more successful in dampening the
controversy.
Although the primary focus of this report is legislative action with respect to abortion, discussion
of the various legislative proposals necessarily involves an examination of the leading Supreme
Court decisions concerning a woman’s right to choose.1
Judicial History
Roe v. Wade and Doe v. Bolton
In 1973, the Supreme Court issued its landmark abortion rulings in Roe v. Wade and Doe v.
Bolton. 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. With regard
to 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, 410 U.S. at 152-53. Such a right, the Court concluded, “is
broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Id.
at 153.
With respect to protection of the right against state interference, the Court held that since the right
of personal privacy is a fundamental right, only a “compelling State interest” could justify its
limitation by a state. Thus, while it recognized the legitimacy of the state interest in protecting
maternal health and the preservation of the fetus’ potential life (id. at 148-150), as well as the

1 For a more detailed discussion of the relevant case law, see CRS Report 95-724, Abortion Law Development:
A Brief Overview, by Jon O. Shimabukuro.
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existence of a rational connection between these two interests and the state’s anti-abortion law,
the Court held these interests insufficient to justify an absolute ban on abortions.
Instead, the Court emphasized the durational nature of pregnancy and found the state’s interests to
be sufficiently compelling to permit curtailment or prohibition of abortion only during specified
stages of pregnancy. The High Court concluded that until the end of the first trimester, an abortion
is no more dangerous to maternal health than childbirth itself, and found that “[With] respect to
the State’s important and legitimate interest in the health of the mother, the ‘compelling’ point, in
light of present medical knowledge, is at approximately the end of the first trimester.” Id. at 163.
Only after the first trimester does the state’s interest in protecting maternal health provide a
sufficient basis to justify state regulation of abortion, and then only to protect this interest. Id. at
163-64.
The “compelling” point with respect to the state’s interest in the potential life of the fetus “is at
viability.” Following viability, the state’s interest permits it to regulate and even proscribe an
abortion except when necessary, in appropriate medical judgment, for the preservation of the life
or health of the woman. Id. at 160. In summary, the Court’s holding was grounded in this
trimester framework analysis and the concept of fetal viability which was defined in post-natal
terms. Id. at 164-65.
In Doe v. Bolton, 410 U.S. 179 (1973), the Court extended Roe by warning that just as states may
not prevent abortion by making the performance a crime, states may not make abortions
unreasonably difficult to obtain by prescribing elaborate procedural barriers. In Doe, the Court
struck down state requirements that abortions be performed in licensed hospitals; that abortions
be approved beforehand by a hospital committee; and that two physicians concur in the abortion
decision. Id. at 196-99. The Court appeared to note, however, that this would not apply to a
statute that protected the religious or moral beliefs of denominational hospitals and their
employees. Id. at 197-98.
The Court in Roe also dealt with the question whether a fetus is a person under the Fourteenth
Amendment and other provisions of the Constitution. The Court indicated that the Constitution
never specifically defines “person,” but added that in 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 also not addressed in Roe and Doe,
but instead led to a wealth of post-Roe litigation.
Supreme Court Decisions Subsequent to Roe and Doe
The post-Roe litigation included challenges to state restrictions requiring informed
consent/waiting periods (Planned Parenthood v. Danforth, 428 U.S. 52 (1976), City of Akron v.
Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983)); spousal/parental consent
(Planned Parenthood v. Danforth, supra, Bellotti v. Baird, 443 U.S. 622 (1979), City of Akron,
supra, Planned Parenthood Association of Kansas City, Missouri Inc. v. Ashcroft, 462 U.S. 476
(1983)); parental notice (Bellotti v. Baird, supra, H. L. v. Matheson, 450 U.S. 398 (1981),
Hartigan v. Zbaraz, 484 U.S. 171 (1987), Hodgson v. Minnesota, 497 U.S. 417 (1990), Ohio v.
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Akron Center for Reproductive Health, 497 U.S. 502 (1990)); reporting requirements (Planned
Parenthood v. Danforth, supra, Planned Parenthood of Kansas City, Missouri, Inc. v. Ashcroft,
supra); advertisement of abortion services (Bigelow v. Virginia, 421 U.S. 809 (1975)); abortions
by nonphysicians (Connecticut v. Menillo, 423 U.S. 9 (1975)); locus of abortions (City of Akron,
supra, Ashcroft, supra, Simopoulos v. Virginia, 462 U.S. 506 (1983)); viability, fetal testing, and
disposal of fetal remains (Planned Parenthood of Central Missouri v. Danforth, supra, Colautti v.
Franklin, 439 U.S. 379 (1979), Ashcroft, supra, City of Akron, supra); and “partial-birth”
abortions (Stenberg v. Carhart, 530 U.S. 914 (2000)).
The Court in Rust v. Sullivan, 500 U.S. 173 (1991), upheld on both statutory and constitutional
grounds the Department of Health and Human Service’s Title X regulations restricting recipients
of federal family planning funding from using federal funds to counsel women about the option
of abortion. While Rust is probably better understood as a case involving First Amendment free
speech rights rather than as a challenge to the constitutionally guaranteed substantive right to
abortion, the Court, following its earlier public funding cases (Maher v. Roe and Harris v.
McRae), did conclude that a woman’s right to an abortion was not burdened by the Title X
regulations. The Court reasoned that there was no constitutional violation because the
government has no duty to subsidize an activity simply because it is constitutionally protected
and because a woman is “in no worse position than if Congress had never enacted Title X.”
In addition to Rust, the Court decided several other noteworthy cases involving abortion
following Roe. Webster v. Reproductive Health Services, 492 U.S. 490 (1989), and Planned
Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), illustrate a shift in
direction by the Court from the type of constitutional analysis it articulated in Roe. These cases
and other more recent cases, such as Stenberg v. Carhart, 530 U.S. 914 (2000), and Ayotte v.
Planned Parenthood of Northern New England, 126 S.Ct. 961 (2006), have implications for
future legislative action and how enactments will be judged by the courts in the years to come.
Webster, Casey, and Ayotte are discussed in the subsequent sections of this report. A discussion of
Stenberg is included in the “Partial-Birth Abortion” section of the report.
Webster
The Supreme Court upheld the constitutionality of the state of Missouri’s abortion statute in
Webster v. Reproductive Health Services, 492 U.S. 49 (1989). In this 5-4 decision, while the
majority did not overrule Roe, 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.
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Casey
Both Webster and Rust energized legislative activity, the former at both the federal and state
levels and the latter at the federal level. Some of the state legislative proposals that became law
were challenged in the courts (e.g., Pennsylvania, Guam, Louisiana, and Utah). The Pennsylvania
case, Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), was
decided by the Supreme Court on June 29, 1992. In a highly fractionated 5-4 decision, the Court
reaffirmed the basic constitutional right to an abortion while simultaneously allowing some new
restrictions. Justices O’Connor, Kennedy, and Souter wrote the plurality opinion, and they were
joined in part by Justices Stevens and Blackmun. Chief Justice Rehnquist and Justices White,
Scalia, and Thomas dissented. The Court refused to overrule Roe, 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. The
provisions that were upheld involved the 24-hour waiting period; informed consent; parental
consent for minors’ abortions with a judicial bypass; and reporting requirements. The spousal
notification provision, which required a married woman to tell her husband if she intended to
have an abortion, did not survive the “undue burden” test and was struck down as
unconstitutional.
The Court’s decision in Casey was significant because the new standard of review appeared to
allow more state restrictions to pass constitutional muster. In addition, the Casey Court found that
the state’s interest in protecting the potentiality of human life extended throughout the course of
the pregnancy. Thus, the state could regulate, even to the point of favoring childbirth over
abortion, from the outset. Under Roe, which utilized the trimester framework, a woman’s decision
to terminate her pregnancy was reached in consultation with her doctor with virtually no state
involvement during the first trimester of pregnancy.
Moreover, under Roe, abortion was a “fundamental right” that could not be restricted by the state
except to serve a “compelling” state interest. Roe’s strict scrutiny form of review resulted in most
state regulations being invalidated during the first two trimesters of pregnancy. The “undue
burden” standard allowed greater regulation during that period. This is evident from the fact that
the Casey Court overruled, in part, two of its earlier decisions which had followed Roe: City of
Akron v. Akron Center of Reproductive Health, 462 U.S. 416 (1983), and Thornburgh v. American
College of Obstetricians and Gynecologists, 476 U.S. 747 (1986). In these cases, the Court,
applying strict scrutiny, struck down 24-hour waiting periods and informed consent provisions;
whereas in Casey, applying the undue burden standard, the Court upheld similar provisions.
Casey had its greatest immediate effect on women in the state of Pennsylvania; however, its
reasoning prompted other states to pass similar restrictions that could withstand challenge under
the “undue burden” standard.
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Partial-Birth Abortion
On June 28, 2000, the Court decided Stenberg v. Carhart, 530 U.S. 914 (2000), its first
substantive abortion case since Casey. In Stenberg, the Court determined that a Nebraska statute
that prohibited the performance of so-called “partial-birth” abortions was unconstitutional
because it failed to include an exception to protect the health of the mother and because the
language defining the prohibited procedure was too vague.2 In affirming the decision of the U.S.
Court of Appeals for the Eighth Circuit, the Court agreed that the language of the Nebraska
statute could be interpreted to prohibit not just the dilation and extraction (D&X) procedure that
pro-life advocates oppose, but the standard dilation and evacuation (D&E) procedure that is the
most common abortion procedure during the second trimester of pregnancy. The Court believed
that the statute was likely to prompt those who perform the D&E procedure to stop because of
fear of prosecution and conviction. The result would be the imposition of an “undue burden” on a
woman’s ability to have an abortion.
After several attempts to pass federal legislation that would prohibit the performance of partial-
birth abortions, Congress passed the Partial-Birth Abortion Ban Act of 2003 (P.L. 108-105)
during the 108th Congress. The measure was signed by President George W. Bush on November
5, 2003. In general, the act prohibits physicians from performing a partial-birth abortion except
when it is necessary to save the life of a mother whose life is endangered by a physical disorder,
physical illness, or physical injury, including a life-endangering physical condition caused by or
arising from the pregnancy itself. Physicians who violate the act are subject to a fine,
imprisonment for not more than two years, or both.
Despite the Court’s holding in Stenberg and past decisions that found that restrictions on abortion
must allow for the performance of an abortion when it is necessary to protect the health of the
mother, the Partial-Birth Abortion Ban Act of 2003 does not include such an exception. In his
introductory statement for the act, Senator Rick Santorum discussed the measure’s lack of a
health exception.3 He maintained that an exception is not necessary because of the risks
associated with partial-birth abortions. Senator Santorum insisted that congressional hearings and
expert testimony demonstrate “that a partial birth abortion is never necessary to preserve the
health of the mother, poses significant health risks to the woman, and is outside the standard of
medical care.”4
Within two days of the act’s signing, federal courts in Nebraska, California, and New York
blocked its enforcement. On April 18, 2007, the Court upheld the Partial-Birth Abortion Ban Act
of 2003, finding that, as a facial matter, it is not unconstitutionally vague and does not impose an
undue burden on a woman’s right to terminate her pregnancy.5 In Gonzales v. Carhart, 550 U.S.
124 (2007), the Court distinguished the federal statute from the Nebraska law at issue in Stenberg.
According to the Court, the federal statute is not unconstitutionally vague because it provides
doctors with a reasonable opportunity to know what conduct is prohibited. Id. at 149. Unlike the
Nebraska law, which prohibited the delivery of a “substantial portion” of the fetus, the federal
statute includes “anatomical landmarks” that identify when an abortion procedure will be subject
to the act’s prohibitions. The Court noted: “[I]f an abortion procedure does not involve the

2 See also CRS Report RL30415, Partial-Birth Abortion: Recent Developments in the Law, by Jon O. Shimabukuro.
3 149 Cong. Rec. S2523 (daily ed. February 14, 2003) (statement of Sen. Santorum).
4 Id.
5 Unlike “as-applied” challenges, which consider the validity of a statute as applied to a particular plaintiff, facial
challenges seek to invalidate a statute in all of its applications.
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delivery of a living fetus to one of these ‘anatomical landmarks’—where, depending on the
presentation, either the fetal head or the fetal trunk past the navel is outside the body of the
mother—the prohibitions of the Act do not apply.” Id. at 148.
The Court also maintained that the inclusion of a scienter or knowledge requirement in the federal
statute alleviates any vagueness concerns. Because the act applies only when a doctor
“deliberately and intentionally” delivers the fetus to an anatomical landmark, the Court concluded
that a doctor performing the D&E procedure would not face criminal liability if a fetus is
delivered beyond the prohibited points by mistake. Id. at 148. The Court observed: “The scienter
requirements narrow the scope of the Act’s prohibition and limit prosecutorial discretion.” Id. at
150.
In reaching its conclusion that the Partial-Birth Abortion Ban Act of 2003 does not impose an
undue burden on a woman’s right to terminate her pregnancy, the Court considered whether the
federal statute is overbroad, prohibiting both the D&X and D&E procedures. The Court also
considered the statute’s lack of a health exception.
Relying on the plain language of the act, the Court determined that the federal statute could not be
interpreted to encompass the D&E procedure. The Court maintained that the D&E procedure
involves the removal of the fetus in pieces. In contrast, the federal statute uses the phrase
“delivers a living fetus.” The Court stated: “D&E does not involve the delivery of a fetus because
it requires the removal of fetal parts that are ripped from the fetus as they are pulled through the
cervix.” Id. at 152. The Court also identified the act’s specific requirement of an “overt act” that
kills the fetus as evidence of its inapplicability to the D&E procedure. The Court indicated: “This
distinction matters because, unlike [D&X], standard D&E does not involve a delivery followed
by a fatal act.” Id. at 153. Because the act was found not to prohibit the D&E procedure, the
Court concluded that it is not overbroad and does not impose an undue burden a woman’s ability
to terminate her pregnancy.
According to the Court, the absence of a health exception also did not result in an undue burden.
Citing its decision in Ayotte, the Court noted that a health exception would be required if the act
subjected women to significant health risks. Id. at 161. However, acknowledging medical
disagreement about the act’s requirements ever imposing significant health risks on women, the
Court maintained that “the question becomes whether the Act can stand when this medical
uncertainty persists.” Id. at 163. Reviewing its past decisions, the Court indicated that it has given
state and federal legislatures wide discretion to pass legislation in areas where there is medical
and scientific uncertainty. Id. The Court concluded that this medical uncertainty provides a
sufficient basis to conclude in a facial challenge of the statute that it does not impose an undue
burden. Id. at 164.
Although the Court upheld the Partial-Birth Abortion Ban Act of 2003 without a health exception,
it acknowledged that there may be “discrete and well-defined instances” where the prohibited
procedure “must be used.” Id. at 167. However, the Court indicated that exceptions to the act
should be considered in as-applied challenges brought by individual plaintiffs: “In an as-applied
challenge the nature of the medical risk can be better quantified and balanced than in a facial
attack.” Id.
Justice Ginsburg authored the dissent in Gonzales. She was joined by Justices Stevens, Souter,
and Breyer. Describing the Court’s decision as “alarming,” Justice Ginsburg questioned
upholding the federal statute when the relevant procedure has been found to be appropriate in
certain cases. Id. at 170. Citing expert testimony that had been introduced, Justice Ginsburg
maintained that the prohibited procedure has safety advantages for women with certain medical
conditions, including bleeding disorders and heart disease. Id. at 177.
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Justice Ginsburg also criticized the Court’s decision to uphold the statute without a health
exception. Justice Ginsburg declared: “Not only does it defy the Court’s longstanding precedent
affirming the necessity of a health exception, with no carve-out for circumstances of medical
uncertainty ... it gives short shrift to the records before us, carefully canvassed by the District
Courts.” Id. at 179. Moreover, according to Justice Ginsburg, the refusal to invalidate the Partial-
Birth Abortion Ban Act of 2003 on facial grounds was “perplexing” in light of the Court’s
decision in Stenberg. Id. at 187. Justice Ginsburg noted: “[I]n materially identical circumstances
we held that a statute lacking a health exception was unconstitutional on its face.” Id.
Finally, Justice Ginsburg contended that the Court’s decision “cannot be understood as anything
more than an effort to chip away at a right declared again and again by [the] Court—and with
increasing comprehension of its centrality to women’s lives.” Id. at 191. Citing the language used
by the Court, including the phrase “abortion doctor” to describe obstetrician-gynecologists and
surgeons who perform abortions, Justice Ginsburg maintained that “[t]he Court’s hostility to the
right Roe and Casey secured is not concealed.” Id. at 186. She argued that when a statute burdens
constitutional rights and the measure is simply a vehicle for expressing hostility to those rights,
the burden should be viewed as “undue.” Id. at 191.
Ayotte
In Ayotte v. Planned Parenthood of Northern New England, 546 U.S. 320 (2006), the Court
concluded that a wholesale invalidation of New Hampshire’s Parental Notification Prior to
Abortion Act was inappropriate. Finding that only a few applications of the act raised
constitutional concerns, the Court remanded the case to the lower courts to render narrower
declaratory and injunctive relief.
The New Hampshire law at issue in Ayotte prohibited physicians from performing an abortion on
a pregnant minor or a woman for whom a guardian or conservator was appointed until 48 hours
after written notice was delivered to at least one parent or guardian. The notification requirement
could be waived under certain specified circumstances. For example, notification was not
required if the attending abortion provider certified that an abortion was necessary to prevent the
woman’s death and there was insufficient time to provide the required notice.
Planned Parenthood of Northern New England and several other abortion providers challenged
the New Hampshire statute on the grounds that it did not include an explicit waiver that would
allow an abortion to be performed to protect the health of the woman. The U.S. Court of Appeals
for the First Circuit invalidated the statute in its entirety on that basis. The First Circuit also
maintained that the act’s life exception was impermissibly vague and forced physicians to gamble
with their patients’ lives by preventing them from performing an abortion without notification
until they were certain that death was imminent.
Declining to revisit its prior abortion decisions, the Court insisted that Ayotte presented a question
of remedy. Maintaining that the act would be unconstitutional only in medical emergencies, the
Court determined that a more narrow remedy, rather than the wholesale invalidation of the act,
was appropriate: “Generally speaking, when confronting a constitutional flaw in a statute, we try
to limit the solution to the problem. We prefer, for example, to enjoin only the unconstitutional
applications of a statute while leaving other applications in force ... or to sever its problematic
portions while leaving the remainder intact.” Id. at 328-29.
The Court identified three interrelated principles that inform its approach to remedies. First, the
Court tries not to nullify more of a legislature’s work than is necessary because a ruling of
unconstitutionality frustrates the intent of the elected representatives of the people.
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Second, the Court restrains itself from rewriting a state law to conform to constitutional
requirements, even as it attempts to salvage the law. The Court explained that its constitutional
mandate and institutional competence are limited, noting that “making distinctions in a murky
constitutional context” may involve a far more serious invasion of the legislative domain than the
Court ought to take. Id. at 330.
Third, the touchstone for any decision about remedy is legislative intent; that is, a court cannot
use its remedial powers to circumvent the intent of the legislature. The Court observed that
“[a]fter finding an application or portion of a statute unconstitutional, we must next ask: Would
the legislature have preferred what is left of its statute to no statute at all?” Id.
On remand, the lower courts were expected to determine the intent of the New Hampshire
legislature when it enacted the parental notification statute. Although the state argued that the
measure’s severability clause illustrated the legislature’s understanding that the act should
continue in force even if certain provisions were invalidated, the respondents insisted that New
Hampshire legislators actually preferred no statute rather than one that would be enjoined in the
manner described by the Court. On February 1, 2007, a federal district court in New Hampshire
entered a procedural order that stayed consideration of the case while a bill to repeal the Parental
Notification Prior to Abortion Act was pending in the state legislature.6 The act was subsequently
repealed by the legislature, effective June 29, 2007.
Some criticized the Court’s willingness to invalidate the New Hampshire statute only as it applied
during medical emergencies. While it is not uncommon for federal courts to save a statute from
invalidation by severing unconstitutional provisions, these courts have generally limited this
practice to federal statutes. Critics maintained that the Court’s opinion represented an
impermissible expansion of federal judicial power over the states. They also argued that the
opinion could encourage states to enact legislation with provisions that are possibly or clearly
unconstitutional, knowing that a reviewing court will sever the impermissible provisions and
allow the remaining statute to continue in force.
Public Funding of Abortions
After the Supreme Court’s decisions in Roe and Doe, some of the first federal legislative
responses involved restrictions on the use of federal money to pay for abortions. In 1976,
Representative Henry J. Hyde offered an amendment to the Departments of Labor and Health,
Education, and Welfare, Appropriation Act, 1977, that restricted the use of appropriated funds to
pay for abortions provided through the Medicaid program.7 Almost immediately, the so-called
“Hyde Amendment” and similar 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.

6 See Planned Parenthood of Northern New England v. Ayotte, 571 F.Supp. 2d 265 (D. N.H. 2008).
7 See P.L. 94-439, §209, 90 Stat. 1418, 1434 (1976) (“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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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, 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 of whether the Hyde Amendment and
similar state laws could validly prohibit the governmental funding of therapeutic abortions. In
Harris v. McRae, 448 U.S. 297 (1980), the Court ruled 5-4 that the Hyde Amendment’s abortion
funding restrictions were constitutional. The majority found that the Hyde Amendment violated
neither the due process or equal protection guarantees of the Fifth Amendment nor the
Establishment Clause of the First Amendment. The Court also upheld the right of a state
participating in the Medicaid program to fund only those medically necessary abortions for which
it received federal reimbursement. In companion cases raising similar issues, the Court held that
an Illinois statutory funding restriction that was comparable to the 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 indicate that there is no statutory or constitutional obligation
of the states or the federal government to fund medically necessary abortions.
Legislative History
Rather than settle the issue, the Court’s decisions in Roe and Doe have prompted debate and a
variety of governmental actions at the national, state, and local levels to limit their effect.
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.
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Prior to the Court’s decision in Roe, relatively few bills involving abortion were introduced in
either the House or the Senate. Since 1973, however, 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, most of these proposals have
sought to restrict the availability of abortions. A few measures have been introduced to better
secure the right to terminate a pregnancy. The Freedom of Choice Act (FOCA), for example, was
introduced and debated in both the 102nd and 103rd Congresses, but was never enacted. FOCA
attempts to codify Roe legislatively, and was reintroduced in the 110th Congress. 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. 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.8
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

8 For a review of the full debate on S.J.Res. 3, see 129 Cong. Rec. S9076 et seq. (daily ed. June 27,
1983); 129 Cong. Rec. S9265 et seq. (daily ed. June 28, 1983).
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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
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,
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 Appropriations Measures
As an alternative to the unsuccessful attempts to prohibit abortion outright, opponents of abortion
sought to ban the use of federal funds to pay for the performance of abortions. Because most
federally funded abortions were reimbursed under Medicaid, they focused their efforts primarily
on that program.
The Medicaid program was established in 1965 to fund medical care for indigent persons through
a federal-state cost-sharing arrangement. Abortions were not initially covered under the program.
During the Nixon Administration, the Department of Health, Education and Welfare 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, 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, Congress has attached abortion funding restrictions to numerous appropriations bills.
Although the Foreign Assistance Act of 1973, P.L. 93-189, included the first of such restrictions,
the greatest focus has arguably been on the Hyde Amendment, which generally restricts Medicaid
abortions under the annual appropriations for the Department of Health and Human Services
(HHS).
Since its initial introduction in 1976, the Hyde Amendment has sometimes been reworded to
include exceptions for pregnancies that are the result of rape or incest, or abortions that are sought
to prevent long-lasting physical health damage to the mother. Until the early 1990s, however, the
language was generally 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 only for the life of the woman exception) failed
in the 104th Congress.
The Hyde Amendment process has not been limited to appropriations for HHS. Beginning with
P.L. 95-457, the Department of Defense appropriations measures 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.
In 1983, the Hyde Amendment process was extended to the Department of the Treasury and
Postal Service Appropriations Act, prohibiting the use of funds for the Federal Employees Health
Benefits Program (FEHBP) to pay for abortions, except when the life of the woman was in
danger. Prior to this restriction, federal government health insurance plans reportedly paid an
estimated $9 million for both therapeutic and non-therapeutic abortions.
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The restriction on FEHBP funds followed an administrative attempt by the Office of Personnel
Management (OPM) to eliminate non-life-saving abortion coverage. OPM’s actions were
challenged by federal employee unions, and a federal district court later concluded that the
agency acted outside the scope of its authority. In American Federation of Government
Employees v. AFL-CIO, 525 F.Supp. 250 (1981), the court found that absent a specific
congressional statutory directive, there was no basis for OPM’s actions.
The restriction on FEHBP funds was removed briefly in 1993, before being reinstated by the
104th Congress. That Congress passed language prohibiting the use of FEHBP funds for
abortions, except in cases where the life of the mother would be endangered or in cases of rape or
incest.
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.
Finally, since 1979, restrictive abortion provisions have been included in appropriations measures
for the District of Columbia (DC). The passage of P.L. 100-462, the FY1989 DC Appropriations
Act, marked the first successful attempt to extend such restrictions to the use of DC funds, as well
as federal funds. Under the so-called Dornan Amendment, DC was prohibited from using both
appropriated funds and local funds to pay for abortions. In 2009, Congress lifted the restriction on
the use of DC funds to pay for abortions. Under the Consolidated Appropriations Act, 2010 (P.L.
111-117), only federal funds were restricted. The Dornan Amendment has since been re-imposed.
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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Health Reform
The Patient Protection and Affordable Care Act (ACA; P.L. 111-148) was enacted on March 23,
2010, to reduce the number of uninsured individuals and restructure the private health insurance
market. The ACA includes provisions that address the coverage of abortion services by qualified
health plans that are available through health benefit exchanges (exchanges). The ACA’s abortion
provisions have been controversial, particularly with regard to the use of premium tax credits or
cost-sharing subsidies to obtain health coverage that includes coverage for elective or non-
therapeutic abortion services.9
In addressing the coverage of abortion services by qualified health plans offered through an
exchange, the ACA refers to the Hyde Amendment to distinguish between two types of abortions:
abortions for which federal funds appropriated for HHS may be used and abortions for which
such funds may not be used (elective abortions). Under the ACA, individuals who receive a
premium tax credit or cost-sharing subsidy are permitted to select a qualified health plan that
includes coverage for elective abortions. However, to ensure that funds attributable to such a
credit or subsidy are not used to pay for elective abortion services, the ACA prescribes payment
and accounting requirements for plan issuers and enrollees.
Under the ACA, the issuer of a qualified health plan must determine whether to provide coverage
for either elective abortions or abortions for which federal funds appropriated for HHS are
permitted. It appears that a plan issuer could also decide not to cover either type of abortion. The
ACA also permits a state to prohibit abortion coverage in exchange plans by enacting a law with
such a prohibition.
The ACA indicates that an issuer of a qualified health plan that provides coverage for elective
abortions cannot use any funds attributable to a premium tax credit or cost-sharing subsidy to pay
for such services. The issuer of a qualified health plan that provides coverage for elective
abortions is required to collect two separate payments from each enrollee in the plan: one
payment that reflects an amount equal to the portion of the premium for coverage of health
services other than elective abortions; and another payment that reflects an amount equal to the
actuarial value of the coverage for elective abortions. The plan issuer is required to deposit the
separate payments into separate allocation accounts that consist solely of each type of payment
and that are used exclusively to pay for the specified services. State health insurance
commissioners will ensure compliance with the segregation requirements in accordance with
applicable provisions of generally accepted accounting requirements, Office of Management and
Budget circulars on funds management, and Government Accountability Office guidance on
accounting.
To determine the actuarial value of the coverage for elective abortions, the plan issuer will
estimate the basic per enrollee, per month cost, determined on an average actuarial basis, for
including such coverage. The estimate may take into account the impact on overall costs of
including coverage for elective abortions, but cannot take into account any cost reduction
estimated to result from such services, such as prenatal care, delivery, or postnatal care. The per
month cost will have to be estimated as if coverage were included for the entire population
covered, but cannot be less than $1 per enrollee, per month.

9 For additional information on abortion and the Patient Protection and Affordable Care Act, see CRS Report R41013,
Abortion and the Patient Protection and Affordable Care Act, by Jon O. Shimabukuro.
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Under the ACA, a qualified health plan that provides coverage for elective abortions is also
required to provide notice of such coverage to enrollees as part of a summary of benefits and
coverage explanation at the time of enrollment. The notice, any plan advertising used by the
issuer, any information provided by the exchange, and any other information specified by the
Secretary will provide information only with respect to the total amount of the combined
payments for elective abortion services and other services covered by the plan.
The ACA also provides for conscience protection and the preservation of certain state and federal
abortion-related laws. The ACA prohibits exchange plans from discriminating against any
individual health care provider or health care facility because of its unwillingness to provide, pay
for, provide coverage of, or refer for abortions. State laws concerning the prohibition or
requirement of coverage or funding for abortions, and state laws involving abortion-related
procedural requirements are not preempted. Federal conscience protection and abortion-related
antidiscrimination laws, as well as Title VII of the Civil Rights Act of 1964, are also not affected.
Legislation in the 113th Congress
FY2014 Appropriations
On January 17, 2014, the President signed H.R. 3547, the Consolidated Appropriations Act, 2014
(P.L. 113-76). The measure provided FY2014 funds for foreign operations, the District of
Columbia, HHS, and other federal agencies. Long-standing funding restrictions on abortion and
abortion-related services, including restrictions on the use of federal and local DC funds to pay
for abortions, were retained.
With regard to foreign operations, none of the appropriated funds could be made available to an
organization or program that supported or participated in the management of a program of
coercive abortion or involuntary sterilization. In addition, appropriated funds were not available
for the performance of abortions as a method of family planning, or to motivate or coerce any
person to practice abortions. Appropriated funds were also not available to lobby for or against
abortion. To reduce reliance on abortion in developing nations, funds were available only for
voluntary family planning projects that offered a broad range of family planning methods and
services. Such voluntary family planning projects were required to meet specified requirements.
Contributions to the United Nations Population Fund (UNFPA) were conditioned on the entity not
funding abortions. In addition, amounts appropriated to the UNFPA were required to be kept in an
account that was separate from the UNFPA’s other accounts. The UNFPA could not commingle
funds provided under H.R. 2055 with the entity’s other sums.
The omnibus measure prohibited the use of appropriated funds to pay for abortions or for any
administrative expenses related to a health plan in the Federal Employees Health Benefits
Program that provided benefits or coverage for abortions. Funds provided to the Department of
Justice could also not be used to pay for an abortion, except where the life of the mother would be
endangered if the fetus were carried to term, or in the case of rape.
Finally, funds appropriated for HHS, as well as funds derived from any trust fund that received
appropriations, could not be used to pay for abortions except in cases of rape or incest, or where a
woman who suffered from a physical disorder, injury, or illness would have her life jeopardized if
an abortion was not performed.
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Additional Legislation
Two bills involving abortion were passed by the House in the 113th Congress. H.R. 7, the No
Taxpayer Funding for Abortion and Abortion Insurance Full Disclosure Act of 2014, was
introduced by Representative Christopher H. Smith on May 14, 2013. The measure was passed by
the House on January 28, 2014, by a vote of 227-188. H.R. 7 was received in the Senate, but was
not considered.
H.R. 7 would have amended Title 1 of the U.S. Code to add new sections that would have
permanently prohibited the use of federal funds for abortion. Unlike the Hyde Amendment and
the other Hyde-type restrictions that have been included annually in various appropriations
measures, the proposed sections would not have to be renewed each year. Moreover, these
funding limitations would have applied to all federal funds and not just those specifically
appropriated for HHS and other federal agencies.
H.R. 7 would have imposed additional restrictions on the availability of abortion. The measure
would have amended the Internal Revenue Code to indicate that a health plan that includes
coverage for elective abortions is not a “qualified health plan” for purposes of the availability of a
premium tax credit. Under the ACA, recipients of a premium tax credit are permitted to select a
qualified health plan that includes elective abortion coverage, so long as the plan enrollee and
plan issuer comply with specified payment and accounting requirements.10 Thus, if enacted, H.R.
7 would have likely affected a recipient’s decision to select a health plan that covers elective
abortions.
Finally, H.R. 7 would have made permanent the Dornan Amendment, which restricts the use of
local DC funds to pay for abortions, and would have amended the ACA to require plans to
disclose coverage of abortion services in marketing or advertising materials, comparison tools,
and benefit summaries.
H.R. 1797, the Pain-Capable Unborn Child Protection Act, was introduced by Representative
Trent Franks on April 26, 2013. The bill was passed by the House on June 18, 2013, by a vote of
228-196. H.R. 1797 was received in the Senate, but was not considered.
H.R. 1797 would have prohibited the performance or attempted performance of an abortion if the
probable post-fertilization age of the “unborn child” is 20 weeks or greater. The prohibition
would not have applied to abortions that were necessary to save the life of a pregnant woman
whose life was endangered by a physical disorder, physical illness, or physical injury. Individuals
who violated the measure would have been subject to a fine under Title 18, U.S. Code,
imprisonment for not more than five years, or both.
On June 14, 2013, prior to the House vote on the measure, the House Committee on Rules
modified H.R. 1797 to indicate that the bill’s prohibition would also not apply to an abortion
involving a pregnancy that was the result of rape, if the rape was reported prior to the abortion to
an appropriate law enforcement agency, or to an abortion involving a pregnancy that was the
result of incest against a minor, if the incest was reported prior to the abortion to an appropriate
law enforcement agency or a government agency that is legally authorized to act on reports of
child abuse or neglect.

10 For additional information on abortion and the Patient Protection and Affordable Care Act, see CRS Report R41013,
Abortion and the Patient Protection and Affordable Care Act, by Jon O. Shimabukuro.
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FY2015 Appropriations
On December 16, 2014, the President signed H.R. 83, the Consolidated and Further Continuing
Appropriations Act, 2015 (P.L. 113-235). The measure retains long-standing funding restrictions
on abortion and abortion-related services that have appeared in past appropriations measures.
Legislation in the 114th Congress
The No Taxpayer Funding for Abortion and Abortion Insurance Full Disclosure Act and the Pain-
Capable Unborn Child Protection Act have been reintroduced in the 114th Congress.
Representative Christopher H. Smith introduced H.R. 7, the No Taxpayer Funding for Abortion
and Abortion Insurance Full Disclosure Act of 2015, on January 21, 2015. The provisions of the
legislation are identical to those that were included in the bill that was passed by the House in the
113th Congress. The House considered the reintroduced bill on January 22, 2015, and passed the
measure by a vote of 242-179.
Representative Trent Franks introduced H.R. 36, the Pain-Capable Unborn Child Protection Act,
on January 6, 2015. The provisions of the bill are identical to those that were included in the
legislation that was approved by the House in the 113th Congress. H.R. 36 was passed by the
House on May 13, 2015, by a vote of 242-184.
Representative Franks has also introduced H.R. 3504, the Born-Alive Abortion Survivors
Protection Act. The bill, introduced on September 15, 2015, would require care to be provided to
a fetus that is “born alive” following an abortion or attempted abortion. Under the measure, any
health care practitioner who is present at the time the fetus is “born alive” would be required to
exercise the same degree of skill, care, and diligence necessary to preserve the life and health of
the fetus as a “reasonably diligent and conscientious health care practitioner would render to any
other child born alive at the same gestational age.” A health care practitioner who fails to exercise
the specified level of care would be subject to a fine, imprisonment for not more than five years,
or both. The House is expected to consider H.R. 3504 in the near future.
In 2002, Congress passed another bill that addressed fetuses that are “born alive.” H.R. 2175, the
Born-Alive Infants Protection Act of 2002 (BAIPA) was eventually signed by the President on
August 5, 2002 (P.L. 107-207). The BAIPA requires 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. Unlike the Born-Alive Abortion Survivors Protection Act, the BAIPA did not
establish any new duties or obligations on the part of health care practitioners who are involved in
providing abortion services.

Author Contact Information

Jon O. Shimabukuro

Legislative Attorney
jshimabukuro@crs.loc.gov, 7-7990

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