Abortion: Judicial History and
February 8, 2021
Legislative Response
Jon O. Shimabukuro
In 1973, the U.S. Supreme Court concluded in Roe v. Wade that the U.S. Constitution protects a
Legislative Attorney
woman’s decision to terminate her pregnancy. In a companion decision, Doe v. Bolton, 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 procedure. 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.
Following Roe, the right identified in that case was affected 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 performance of an abortion once the fetus reaches a
specified gestational age has also 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 agencies, 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 and local funds may not
be used to perform abortions except in cases of rape or 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 also 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 nontherapeutic 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.
Congressional Research Service

Abortion: Judicial History and Legislative Response

n 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.1 In a companion decision, Doe v. Bolton, the
I 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 procedure.2 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.3
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.”4 The Georgia enactment permitted abortions only 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.5 The Georgia statute also required that
abortions be performed only at accredited hospitals and only after approval by a hospital
committee and two consulting physicians.6
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.7 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.8
With regard to the scope of that privacy right, the Court stated that it includes “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 relationships,

1 410 U.S. 113 (1973).
2 410 U.S. 179 (1973).
3 For additional discussion of the relevant case law, see CRS Report 95-724, Abortion Law Development: A Brief
Overview, by Jon O. Shimabukuro.
4 See Roe, 410 U.S. at 119.
5 See Doe, 410 U.S. at 183.
6 Id at 183-84.
7 Roe, 410 U.S. at 164-65; Doe, 410 U.S. at 201.
8 See Roe, 410 U.S. at 153.
Congressional Research Service

1

Abortion: Judicial History and Legislative Response

child rearing, and education.9 Such a right, the Court concluded, “is broad enough to encompass a
woman’s decision whether or not to terminate her pregnancy.”10
With respect to protecting that right against state interference, the Court held that because the
right of personal privacy is a fundamental right, only a “compelling State interest” could justify
its limitation by a state.11 Thus, while it recognized the legitimacy of the state interest in
protecting maternal health and the preservation of the fetus’s potential life, as well as the
existence of a rational connection between these two interests and a state’s anti-abortion law, the
Court held these interests insufficient to justify an absolute ban on abortions.12
Instead, the Court emphasized the durational nature of pregnancy and found the state’s interests
to be sufficiently compelling to permit the 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.”13 Only after the first trimester did 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.14
The “compelling” point with respect to the state’s interest in the potential life of the fetus “is at
viability.”15 Following viability, the state’s interest permitted 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.16 In summary, the Court’s holding was grounded in this trimester
framework analysis and the concept of fetal viability.17
In Doe v. Bolton, the Court extended Roe by warning that just as states may not prevent abortion
by making its performance a crime, they may not make abortions unreasonably difficult to obtain
by prescribing elaborate procedural barriers.18 In Doe, the Court struck down Georgia’s
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.19
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.20
In Roe, the Court also dealt with the question of 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 the term “person,” but added that in nearly all the sections where the

9 Roe, 410 U.S. at 152-53.
10 Id. at 153.
11 Id. at 155.
12 Id. at 164-65.
13 Id. at 163.
14 Id. at 163-64.
15 Id.
16 Id.
17 Id. at 164-65. See also id. at 160 (defining the term “viable” as the point in fetal development when the fetus is
“potentially able to live outside the mother’s womb, albeit with artificial aid.”).
18 Doe, 410 U.S. at 201.
19 Id. at 193-200.
20 Id. at 197-98.
Congressional Research Service

2

Abortion: Judicial History and Legislative Response

word “person” appears, “the use of the word is such that it has application only postnatally. None
indicates, with any assurance, that it has any possible pre-natal application.”21 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, it was persuaded “that the word ‘person’, as used in the
Fourteenth Amendment, does not include the unborn.”22
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, with or without
artificial assistance.23 Many other questions were also not addressed in Roe and Doe, but instead
led to a wealth of post-Roe litigation.
Supreme Court Decisions After Roe and Doe
Following Roe, the Court examined a variety of federal and state requirements that addressed
different concerns related to abortion: informed consent and mandatory waiting periods;24 spousal
and parental consent;25 parental notice;26 reporting requirements;27 advertisement of abortion
services;28 abortions by nonphysicians;29 locus of abortions;30 viability, fetal testing, and disposal
of fetal remains;31 and “partial-birth” abortions.32
In Rust v. Sullivan, the Court upheld on both statutory and constitutional grounds the Department
of Health and Human Services’ Title X regulations restricting recipients of federal family
planning funding from using federal funds to counsel women about abortion.33 While Rust is
probably better understood as a case involving First Amendment free speech rights rather than a
challenge to the constitutionally guaranteed substantive right to abortion, the Court, following its
earlier public funding cases (Maher v. Roe34 and Harris v. McRae),35 did conclude that a woman’s

21 Roe, 410 U.S. at 157.
22 Id. at 158.
23 Id. at 160.
24 Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52 (1976); City of Akron v. Akron Ctr. for Reprod. Health,
Inc., 462 U.S. 416 (1983).
25 Planned Parenthood of Cent. Mo. v. Danforth, supra; Bellotti v. Baird, 443 U.S. 622 (1979); City of Akron v. Akron
Ctr. for Reprod. Health, Inc., supra; Planned Parenthood Ass’n of Kan. City, Mo., Inc. v. Ashcroft, 462 U.S. 476
(1983).
26 Bellotti v. Baird, supra; H. L. v. Matheson, 450 U.S. 398 (1981); Hartigan v. Zbaraz, 484 U.S. 171 (1987); Hodgson
v. Minn., 497 U.S. 417 (1990); Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502 (1990).
27 Planned Parenthood of Cent. Mo. v. Danforth, supra; Planned Parenthood Ass’n of Kan. City, Mo., Inc. v. Ashcroft,
supra.
28 Bigelow v. Va., 421 U.S. 809 (1975).
29 Conn. v. Menillo, 423 U.S. 9 (1975).
30 City of Akron v. Akron Ctr. for Reprod. Health, Inc., supra; Planned Parenthood Ass’n of Kan. City, Mo., Inc. v.
Ashcroft, supra; Simopoulos v. Va., 462 U.S. 506 (1983).
31 Planned Parenthood of Cent. Mo. v. Danforth, supra; Colautti v. Franklin, 439 U.S. 379 (1979); Planned Parenthood
Ass’n of Kan. City, Mo., Inc. v. Ashcroft, supra; City of Akron v. Akron Ctr. for Reprod. Health, Inc., supra.
32 Stenberg v. Carhart, 530 U.S. 914 (2000); Gonzales v. Carhart, 550 U.S. 124 (2007).
33 500 U.S. 173 (1991).
34 432 U.S. 464 (1977) (upholding state regulation limiting Medicaid assistance to abortions certified as medically
necessary).
35 448 U.S. 297 (1980) (upholding restrictions on the use of federal funds to perform abortions that are not medically
necessary).
Congressional Research Service

3

link to page 9 Abortion: Judicial History and Legislative Response

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.”36
In addition to Rust, the Court decided several other noteworthy cases involving abortion
following Roe. Webster v. Reproductive Health Services37 and Planned Parenthood of
Southeastern Pennsylvania v. Casey38 illustrate the Court’s shift from the type of constitutional
analysis it articulated in Roe. These cases and other more recent cases, such as Stenberg v.
Carhart39 and Ayotte v. Planned Parenthood of Northern New England40 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 this report.
Webster
In Webster v. Reproductive Health Services, the Court upheld Missouri’s restrictions on the use of
public employees and facilities for the performance of abortions.41 Although the Court did not
overrule Roe, a plurality of Justices indicated that it was willing to apply a less stringent standard
of review to state abortion regulations.42 The plurality criticized the trimester framework
established by Roe, noting that it “is hardly consistent with the notion of a Constitution cast in
general terms[.]”43 The plurality also questioned Roe’s identification of viability as the point at
which a state could regulate abortion to protect potential life:
[W]e do not see why the State’s interest in protecting potential human life should come
into existence only at the point of viability, and that there should therefore be a rigid line
allowing state regulation after viability but prohibiting it before viability.44
Webster recognized that state legislatures retain considerable discretion to pass abortion
regulations, and acknowledged the likelihood that such regulations would probably pass
constitutional muster in the future.45 However, because Webster did not affect private doctors’
offices or clinics, the ruling was arguably narrow in scope. Nevertheless, Webster set the stage for
the Court’s 1992 decision in Casey, where a real shift in direction was pronounced.
Casey
Webster and Rust energized legislative activity at the federal and state levels. Some of the state
legislative proposals that became law were later challenged in the courts.46 The constitutionality

36 Rust, 500 U.S. at 203.
37 492 U.S. 490 (1989).
38 505 U.S. 833 (1992).
39 530 U.S. 914 (2000).
40 546 U.S. 320 (2006).
41 492 U.S. 490 (1989).
42 Id. at 516-22.
43 Id. at 518.
44 Id. at 519.
45 Id. at 520-21.
46 See, e.g., Sojorner v. Roemer, 772 F.Supp. 930 (E.D. La. 1991) (invalidating Louisiana abortion law).
Congressional Research Service

4

Abortion: Judicial History and Legislative Response

of Pennsylvania’s Abortion Control Act was examined by the Court in Planned Parenthood of
Southeastern Pennsylvania v. Casey.47 In Casey, a plurality of the Court rejected the trimester
framework established in Roe, explaining that “in its formulation [the framework] misconceives
the pregnant woman’s interest . . . and in practice it undervalues the State’s interest in potential
life[.]”48 In its place, the plurality adopted a new “undue burden” standard, maintaining that this
standard recognized the need to reconcile the government’s interest in potential life with a
woman’s right to decide to terminate her pregnancy.49 While Roe generally restricted the
regulation of abortion during the first trimester, Casey emphasized that not all of the burdens
imposed by an abortion regulation were likely to be undue. Under Casey, an undue burden exists
if the purpose or effect of an abortion regulation is “to place a substantial obstacle in the path of a
woman seeking an abortion before the fetus attains viability.”50
In adopting the new undue burden standard, Casey nonetheless reaffirmed the essential holding of
Roe, which the plurality described as having three parts.51 First, a woman has a right to choose to
have an abortion prior to viability without undue interference from the state. Second, the state has
a right to restrict abortions after viability so long as the regulation provides an exception for
pregnancies that endanger a woman’s life or health. Third, the state has legitimate interests from
the outset of the pregnancy in protecting the health of the woman and the life of the fetus.
After applying the undue burden standard in Casey, four provisions of the Pennsylvania law were
upheld. The law’s 24-hour waiting period requirement, its informed consent provision, its
parental consent provision, and its recordkeeping and reporting requirements were found to not
impose an undue burden.52 While the plurality acknowledged that these requirements, notably the
24-hour waiting period, could delay the procedure or make an abortion more expensive, it
nevertheless concluded that they did not impose an undue burden. Moreover, the plurality
emphasized that “under the undue burden standard a State is permitted to enact persuasive
measures which favor childbirth over abortion even if those measures do not further a health
interest.”53
The law’s spousal notification provision, which required a married woman to tell her husband of
her intention to have an abortion, did not survive the undue burden analysis.54 A majority of the
Court maintained that the requirement imposed an undue burden because it could result in spousal
abuse and discourage a woman from seeking an abortion: “The spousal notification requirement
is thus likely to prevent a significant number of women from obtaining an abortion. It does not
merely make abortions a little more difficult or expensive to obtain; for many women, it will
impose a substantial obstacle.”55
The plurality’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 plurality maintained
that the state’s interest in protecting the potentiality of human life extended throughout the course

47 505 U.S. 833 (1992).
48 Id. at 873.
49 Id. at 876.
50 Id. at 877.
51 Id. at 846.
52 Id. at 881-901.
53 Id. at 886.
54 Id. at 887-98.
55 Id. at 893-94.
Congressional Research Service

5

Abortion: Judicial History and Legislative Response

of the pregnancy.56 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.
In addition, 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 standard 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 for Reproductive Health57 and Thornburgh v. American College of
Obstetricians and Gynecologists.58 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 would withstand challenge under
the “undue burden” standard.59
Partial-Birth Abortion
On June 28, 2000, the Court decided Stenberg v. Carhart, its first substantive abortion case since
Casey.60 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.61 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 prolife advocates oppose, but
the standard dilation and evacuation (D&E) procedure that is the most common abortion
procedure during the second trimester of pregnancy.62 The Court maintained that the statute was
likely to prompt those who perform the D&E procedure to stop because of fear of prosecution and
conviction.63 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 during the 108th
Congress.64 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

56 Id. at 872-73.
57 462 U.S. 416 (1983).
58 476 U.S. 747 (1986).
59 See, e.g., Mazurek v. Armstrong, 520 U.S. 968 (1997) (upholding Montana statute restricting the performance of
abortions to licensed physicians).
60 530 U.S. 914 (2000).
61 See also CRS Report RL30415, Partial-Birth Abortion: Recent Developments in the Law, by Jon O. Shimabukuro
(available to congressional clients upon request).
62 Stenberg, 530 U.S. at 939.
63 Id. at 945.
64 Pub. L. No. 108-105, 117 Stat. 1201 (2003).
Congressional Research Service

6

Abortion: Judicial History and Legislative Response

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.65 Physicians who violate the act are subject to a fine, imprisonment for
not more than two years, or both.66
Despite the Court’s holding in Stenberg and past decisions concluding that restrictions on
abortion must allow for the performance of the procedure 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.67 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.”68
Within two days of the act’s signing, federal courts in Nebraska, California, and New York
blocked its enforcement.69 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.70 In Gonzales v. Carhart, the Court
distinguished the federal statute from the Nebraska law at issue in Stenberg.71 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.72 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.73 The Court noted: “[I]f an abortion procedure does not involve the delivery of a
living fetus to one of these ‘anatomical landmarks’—where, depending on the presentation, either
the fetal head or the fetal trunk past the navel is outside the body of the mother—the prohibitions
of the Act do not apply.”74
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.75 The Court observed: “The scienter
requirements narrow the scope of the Act’s prohibition and limit prosecutorial discretion.”76

65 18 U.S.C. § 1531(a).
66 Id.
67 149 Cong. Rec. S2523 (daily ed. February 14, 2003) (statement of Senator Santorum).
68 Id.
69 Carhart v. Ashcroft, 287 F.Supp.2d 1015 (D. Neb. 2003); Planned Parenthood Fed’n of America v. Ashcroft, No. C
03-4872 (N.D. Cal. Nov. 6, 2003); Nat’l Abortion Fed’n v. Ashcroft, 287 F.Supp.2d 525 (S.D.N.Y. 2003).
70 550 U.S. 124 (2007). 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.
71 Id. at 141.
72 Id. at 149.
73 See 18 U.S.C. § 1531(b)(1)(A).
74 Gonzales, 550 U.S. at 148.
75 Id.
76 Id. at 150.
Congressional Research Service

7

Abortion: Judicial History and Legislative Response

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.77 In contrast, the federal statute uses the phrase
“delivers a living fetus.”78 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.”79 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.”80 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 Ayotte v. Planned Parenthood of Northern New England,81 its 2006 decision involving
New Hampshire’s parental notification law (discussed below), the Court noted that a health
exception would be required if the act subjected women to significant health risks.82 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.”83 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.84 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.85
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.”86 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.”87
Justice Ginsburg authored the dissent in Gonzales.88 She was joined by Justices Stevens, Souter,
and Breyer. Describing the Court’s decision as “alarming,” Justice Ginsburg questioned

77 Id. at 152.
78 18 U.S.C. § 1531(b)(1)(A).
79 Gonzales, 550 U.S. at 152.
80 Id. at 153.
81 546 U.S. 320 (2006).
82 Gonzales, 550 U.S. at 161.
83 Id. at 163.
84 Id.
85 Id. at 164.
86 Id. at 167.
87 Id.
88 Id. at 169.
Congressional Research Service

8

Abortion: Judicial History and Legislative Response

upholding the federal statute when the relevant procedure has been found to be appropriate in
certain cases.89 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.90
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.”91 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.92 Justice Ginsburg noted: “[I]n materially identical circumstances we held that a statute
lacking a health exception was unconstitutional on its face.”93
Ayotte
In Ayotte v. Planned Parenthood of Northern New England, the Court concluded that a wholesale
invalidation of New Hampshire’s Parental Notification Prior to Abortion Act was inappropriate.94
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.95 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.96
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.97 The U.S. Court of
Appeals for the First Circuit invalidated the statute in its entirety on that basis.98 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.99

89 Id. at 170.
90 Id. at 177.
91 Id. at 179.
92 Id. at 187.
93 Id.
94 546 U.S. 320 (2006).
95 See id. at 323-24.
96 Id. at 324.
97 Id. at 324-25.
98 390 F.3d 53 (1st Cir. 2004).
99 Id. at 63.
Congressional Research Service

9

Abortion: Judicial History and Legislative Response

Declining to revisit its prior abortion decisions, the Court insisted that Ayotte presented a question
of remedy.100 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.101
The Court identified three interrelated principles that inform its approach to remedies.102 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.103
Second, the Court restrains itself from rewriting a state law to conform to constitutional
requirements, even as it attempts to salvage the law.104 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.105
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.106 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?”107
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.108 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.109 The act was
subsequently repealed by the legislature, effective June 29, 2007.110
Ayotte illustrated the Court’s willingness to invalidate an abortion regulation only as applied in
certain circumstances. While it is not uncommon for federal courts to save a statute from
invalidation by severing unconstitutional provisions, they have generally limited this practice to

100 Ayotte, 546 U.S. at 327.
101 Id. at 328-29.
102 Id. at 329.
103 Id.
104 Id.
105 Id. at 330.
106 Id.
107 Id.
108 Id. at 331.
109 See Planned Parenthood of N. New England v. Ayotte, 571 F.Supp.2d 265 (D. N.H. 2008).
110 Abortion Law to Notify Parents Repealed, Chi. Trib., June 30, 2007, at 7.
Congressional Research Service

10

Abortion: Judicial History and Legislative Response

federal statutes. Observers noted that the Court’s opinion represented an expansion of federal
judicial power over the states.111
Whole Woman’s Health
In Whole Woman’s Health v. Hellerstedt, the Court invalidated two Texas requirements that
applied to abortion providers and physicians who perform abortions.112 Under a Texas law
enacted in 2013, a physician who performs or induces an abortion was required to have admitting
privileges at a hospital within 30 miles from the location where the abortion was performed or
induced.113 In general, admitting privileges allow a physician to transfer a patient to a hospital if
complications arise in the course of providing treatment. The Texas law also required an abortion
facility to satisfy the same standards as an ambulatory surgical center (ASC).114 These standards
address architectural and other structural matters, as well as operational concerns, such as staffing
and medical records systems. Supporters of the Texas law maintained that the requirements would
guarantee a higher level of care for women seeking abortions. Opponents, however, characterized
the requirements as unnecessary and costly, and argued that they would make it more difficult for
abortion facilities to operate.
In a 5-3 decision, the Court rejected the procedural and constitutional grounds that were
articulated by the U.S. Court of Appeals for the Fifth Circuit to uphold the requirements. Writing
for the majority in Whole Woman’s Health, Justice Breyer concluded that res judicata did not bar
facial challenges to either the admitting privileges requirement or the ASC requirement.115 In
applying the undue burden standard, Justice Breyer maintained that courts should place
considerable weight on the evidence and arguments presented in judicial proceedings when they
consider the constitutionality of abortion regulations.116 Justice Breyer also noted that the undue
burden standard requires courts to consider “the burdens a law imposes on abortion access
together with the benefits those laws confer.”117
The Whole Woman’s Health Court referred heavily to the evidence collected by the district court
in its examination of the admitting privileges and ASC requirements. With regard to the admitting
privileges requirement, the Court cited the low complication rates for first- and second-trimester
abortions, and expert testimony that complications during the abortion procedure rarely require
hospital admission.118 Based on this and similar evidence, the Court disputed the state’s assertion
that the purpose of the admitting privileges requirement was to ensure easy access to a hospital
should complications arise. The Court emphasized that “there was no significant health-related
problem that the new law helped to cure.”119 Citing other evidence concerning the closure of
abortion facilities as a result of the admitting privileges requirement and the increased driving
distances experienced by women of reproductive age because of the closures, the Court

111 See, e.g., Jack M. Balkin, The Ayotte Compromise, Balkinization (Jan. 18, 2006, 12:48 PM),
https://balkin.blogspot.com/2006/01/ayotte-compromise.html.
112 136 S.Ct. 2292 (2016).
113 See id. at 2300.
114 Id.
115 Id. at 2309.
116 Id. at 2310.
117 Id. at 2309.
118 Id. at 2311.
119 Id.
Congressional Research Service

11

Abortion: Judicial History and Legislative Response

maintained: “[T]he record evidence indicates that the admitting-privileges requirement places a
‘substantial obstacle in the path of a woman’s choice.’”120
The Court again referred to the record evidence to conclude that the ASC requirement imposed an
undue burden on the availability of abortion. Noting that the record supports the conclusion that
the ASC requirement “does not benefit patients and is not necessary,” the Court also cited the
closure of facilities and the cost to comply with the requirement as evidence that the requirement
posed a substantial obstacle for women seeking abortions.121 While Texas argued that the clinics
remaining after implementation of the ASC requirement could expand to accommodate all of the
women seeking an abortion, the Court indicated that “requiring seven or eight clinics to serve five
times their usual number of patients does indeed represent an undue burden on abortion
access.”122
The majority’s focus on the record evidence, and a court’s consideration of that evidence in
balancing the burdens imposed by an abortion regulation against its benefits, is noteworthy for
providing clarification of the undue burden standard. Although the Casey Court did examine the
evidence collected by the district court with respect to Pennsylvania’s spousal notification
requirement, and was persuaded by it, the Fifth Circuit discounted similar evidence collected by
the district court in its consideration of the two requirements.123 In Whole Woman’s Health, the
Court maintained that the Fifth Circuit’s approach did “not match the standard that this Court laid
out in Casey . . .”124
June Medical Services
In June Medical Services v. Russo, a majority of the Court held that a Louisiana admitting
privileges law imposed an undue burden on a woman’s ability to obtain an abortion.125 Justice
Breyer authored an opinion, joined by Justices Ginsburg, Sotomayor, and Kagan, that relied
heavily on Whole Woman’s Health. Justice Breyer maintained that the laws being reviewed in
June Medical Services and Whole Woman’s Health were “nearly identical,” and that the
Louisiana law “must consequently reach a similar conclusion.”126 In a separate opinion, Chief
Justice Roberts concurred in the judgment, emphasizing that the legal doctrine of stare decisis
required June Medical Services to be decided like Whole Woman’s Health.127
The Court in June Medical Services considered not only the constitutionality of Louisiana’s
admitting privileges law, but also whether abortion providers satisfy minimum constitutional
standing requirements to challenge an abortion regulation on behalf of their clients.128 Although
plaintiffs in federal court are generally required to assert their own rights and not those of third

120 Id. at 2312 (quoting Casey, 505 U.S. at 877).
121 Id. at 2315.
122 Id. at 2318.
123 See Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 748 F.3d 583, 598 (5th Cir. 2014) (stating
that the district court’s finding that “there will be abortion clinics that will close” was too vague); Whole Woman’s
Health v. Cole, 790 F.3d 563, 590 (5th Cir. 2015) (finding the district court’s determination that the ASCs that perform
abortions could not accommodate patients affected by the closure of non-ASC facilities was “unsupported by evidence”
and “clearly erroneous”).
124 Whole Woman’s Heath, 136 S.Ct. at 2310.
125 140 S.Ct. 2103 (2020).
126 Id. at 2133.
127 Id. at 2134.
128 Id. at 2117.
Congressional Research Service

12

Abortion: Judicial History and Legislative Response

parties, the Court has recognized third-party standing when the real party in interest cannot assert
her own rights and a third party has a close relationship with her.129 Louisiana argued that the
petitioners in June Medical Services—an abortion clinic and physicians who perform abortions—
lacked standing because they did not have a close relationship with abortion patients.130 The state
also contended that the petitioners’ opposition to a health regulation intended to protect patients
evidenced a conflict of interest with these patients, rendering them unsuitable to assert the rights
of their clients.131
In the plurality opinion, Justice Breyer concluded that the state waived its standing argument
when it opposed the petitioners’ initial request for a temporary restraining order against the
admitting privileges law.132 In a memorandum opposing the request, Louisiana had stated that
there was “no question that the physicians had standing to contest [the law.]”133 The plurality
therefore determined that the state’s “unmistakable concession” barred the Court’s consideration
of the argument.134 Nevertheless, the plurality also emphasized the Court’s long-standing
recognition of abortion providers invoking the rights of their actual and potential patients in
challenges to abortion regulations. Citing several of the Court’s past abortion decisions
recognizing third-party standing, Justice Breyer indicated that the plurality would not have
undone those decisions even if the state had not conceded the argument.135 In his concurring
opinion, Chief Justice Roberts expressed agreement with this portion of the opinion.136 Thus, a
majority of the Court concluded that the physicians had standing to assert the constitutional rights
of their patients.
Addressing the merits of the admitting privileges law, Justice Breyer applied the undue burden
standard, reiterating that it requires balancing an abortion regulation’s benefits against any
burdens it imposes.137 The plurality maintained that the district court faithfully engaged in this
balancing, and reviewed the evidence collected by the court to determine whether its evidentiary
findings were clearly erroneous.138 The district court found that admitting privileges are not
relevant to a patient’s care and do not provide a significant health benefit.139 The lower court also
determined that the law’s enforcement would reduce the number of Louisiana physicians
performing abortions and cause the closure of most of the state’s abortion facilities.140 Balancing
these burdens against the absence of any notable health benefit, the district court found the law
unconstitutional.141

129 See, e.g., Singleton v. Wulff, 428 U.S. 106 (1976) (physicians who perform elective abortions have standing to
challenge Missouri law that restricts Medicaid coverage for such abortions).
130 Brief for the Respondent/Cross-Petitioner, June Med. Servs. LLC v. Gee, Nos. 18-1323 & 18-1460, at 41.
131 Id.
132 June Med. Servs., 140 S.Ct. at 2117.
133 Id. at 2118.
134 Id.
135 Id. (citing Whole Woman’s Health, 136 S.Ct. at 2314; Gonzales, 550 U.S. at 133; Ayotte, 546 U.S. at 324; Stenberg,
530 U.S. at 922; Mazurek, 520 U.S. at 969–70; Casey, 505 U.S. at 845; Akron Ctr. for Reprod. Health, 462 U.S. at 440
n. 30; Danforth, 428 U.S. at 62; Doe, 410 U.S. at 188–89).
136 Id. at 2139 n.4.
137 Id. at 2120.
138 Id. at 2111.
139 June Med. Servs. LLC v. Kliebert, 250 F.Supp.3d 27 (M.D. La. 2017).
140 Id. at 87.
141 Id. at 88-89.
Congressional Research Service

13

Abortion: Judicial History and Legislative Response

The U.S. Court of Appeals for the Fifth Circuit reversed the district court’s decision, contending
that the law provides a credentialing function that promotes women’s health.142 The Fifth Circuit
disputed the district court’s finding that the law’s enforcement would cause facility closures,
explaining that several of the state’s abortion providers did not make a good-faith effort to obtain
admitting privileges.143 In the view of the Fifth Circuit, if these providers made such an effort,
they could obtain admitting privileges and abortion facilities would not close.144 Consequently,
burdens associated with facility closures, such as increased driving distances resulting from fewer
facilities, would be minimized.145
The plurality concluded that the district court’s factual determinations were supported by ample
evidence and were not clearly erroneous.146 With regard to any health benefit associated with an
admitting privileges requirement, the plurality discussed both the district court’s findings, and
similar findings by the district court in Whole Woman’s Health. Writing for the Court in Whole
Woman’s Health, Justice Breyer emphasized that deference should be given to the district court’s
evaluation of the record evidence.147 The district courts in both cases determined that an admitting
privileges requirement serves no “relevant credentialing function” because privileges may be
denied for reasons other than a doctor’s ability to perform abortions.148
The plurality also maintained that direct and circumstantial evidence supported the district court’s
finding that the admitting privileges law burdened abortion providers.149 For the plurality, this
evidence refuted the Fifth Circuit’s conclusion that some providers did not act in good faith to
obtain admitting privileges. For example, direct evidence established that some of the providers
were denied privileges for reasons other than their ability to safely perform abortions.150 And
circumstantial evidence illustrated how application costs and reputational risks that accompany
rejection could prevent the providers from seeking privileges at some hospitals.151 According to
the plurality, the evidence collected by the district court supported its conclusion that enforcement
of the admitting privileges law would cause the closure of most of the state’s abortion facilities.152
For the plurality, fewer abortion facilities would also create additional burdens for women
seeking abortions, such as longer wait times and increased driving distances.153
Accepting the district court’s findings, including its balancing of the burdens imposed by the
admitting privileges law against the absence of any real health benefit, the plurality agreed with
the lower court’s conclusion that the Louisiana law imposed an undue burden on a woman’s
ability to obtain an abortion.154 Because the district court applied the undue burden standard just

142 June Med. Servs. LLC v. Gee, 905 F.3d 787 (5th Cir. 2018).
143 Id. at 807.
144 Id. at 810-11.
145 Id at 811.
146 June Med. Servs., 140 S.Ct. at 2132.
147 Whole Woman’s Heath, 136 S.Ct. at 2310.
148 June Med. Servs., 140 S.Ct. at 2122.
149 Id. at 2122-23.
150 Id.
151 Id.
152 Id. at 2129.
153 Id. at 2129-30.
154 Id. at 2132.
Congressional Research Service

14

Abortion: Judicial History and Legislative Response

as the district court in Whole Woman’s Health, the plurality maintained that the same result was
required.155
Concurring in the judgment, Chief Justice Roberts agreed that the Louisiana law and the Texas
law at issue in Whole Woman’s Health were nearly identical.156 Although he dissented in Whole
Woman’s Health and indicated in his concurrence that the Texas case was wrongly decided, he
nevertheless maintained that stare decisis required the invalidation of the Louisiana law.157
Despite his concurrence in the judgment, however, Chief Justice Roberts questioned how the
undue burden standard is now applied as a result of Whole Woman’s Health.158 Discussing the
balancing of an abortion regulation’s benefits and burdens, the Chief Justice contended that
nothing in Casey suggested that courts should engage in this kind of weighing of factors.159
According to the Chief Justice, Casey focused on the existence of a substantial obstacle as
sufficient to invalidate an abortion regulation and did not “call for consideration of a regulation’s
benefits[.]”160 Reviewing the burdens imposed by the Louisiana law, such as fewer abortion
providers and facility closures, the Chief Justice agreed with the plurality that “the determination
in Whole Woman’s Health that Texas’s law imposed a substantial obstacle requires the same
determination about Louisiana’s law.”161 Nevertheless, the Chief Justice further observed that
“the discussion of benefits in Whole Woman’s Health was not necessary to its holding.”162
In a dissenting opinion, Justice Alito also questioned the use of a balancing test to determine
whether an abortion regulation imposes an undue burden on the ability to obtain an abortion.163
Justice Alito maintained that Whole Woman’s Health “simply misinterpreted Casey . . . [and]
should be overruled insofar as it changed the Casey test.”164 Justices Thomas and Kavanaugh
wrote separate dissenting opinions, but joined Justice Alito in criticizing the use of a balancing
test.165 In another dissenting opinion, Justice Gorsuch criticized the balancing test, not so much as
a misinterpretation of Casey, but because it produces unpredictable results by giving judges too
much discretion to determine the factors considered and the weight to accord to them.166 These
dissenting opinions and the Chief Justice’s concurrence evidence skepticism with the balancing
test used in Whole Woman’s Health and June Medical Services. The five Justices expressing
skepticism about the balancing test indicates potential majority support for a different test to
evaluate abortion regulations.
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,

155 Id. at 2133.
156 Id.
157 Id. at 2133-34.
158 Id. at 2136.
159 Id.
160 Id. at 2139.
161 Id.
162 Id. at n.3.
163 Id. at 2153.
164 Id. at 2154.
165 Id. at 2153.
166 Id. at 2179-80.
Congressional Research Service

15

Abortion: Judicial History and Legislative Response

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.167 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.
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.168
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.169 The Court ruled that it was not
inconsistent with the act’s goals to refuse to fund unnecessary medical services. However, the
Court also indicated that Title XIX left a state free to include coverage for nontherapeutic
abortions should it choose to do so.170 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.171 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.172
Finally, in Poelker v. Doe, the Court upheld a municipal regulation that denied indigent pregnant
women nontherapeutic abortions at public hospitals.173 The Court also held that staffing those
hospitals with personnel opposed to the performance of abortions did not violate the Equal
Protection Clause of the Constitution.174 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, the Court ruled 5-4 that the Hyde Amendment’s abortion funding restrictions
were constitutional.175 The majority found that the Hyde Amendment did not violate the due

167 See Pub. L. No. 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.”).
168 Beal v. Doe, 432 U.S. 438 (1977); Maher v. Roe, 432 U.S. 464 (1977); Poelker v. Doe, 432 U.S. 519 (1977).
169 Beal, 432 U.S. at 447.
170 Id.
171 Maher, 432 U.S. at 480.
172 Id. at 474.
173 Poelker, 432 U.S. at 521.
174 Id.
175 448 U.S. 297 (1980).
Congressional Research Service

16

Abortion: Judicial History and Legislative Response

process or equal protection guarantees of the Fifth Amendment or 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.176 In Williams v. Zbaraz, a companion case 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.177 The Court’s rulings in McRae and Zbaraz indicate that there is no statutory or
constitutional obligation of the federal government or the states to fund medically necessary
abortions.
Legislative History
Rather than settle the issue, the Court’s decisions in Roe and Doe 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.
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. Most of these proposals have sought to
restrict the availability of abortions. Some measures, however, have been introduced to better
secure the right to terminate a pregnancy. The Freedom of Choice Act, for example, attempted to
codify Roe and was introduced in several Congresses.178 The Freedom of Access to Clinic
Entrances Act of 1994 made it a federal crime to use force, or the threat of force, to intimidate
abortion clinic workers or women seeking abortions.179
Constitutional Amendments
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 that would overrule the Supreme Court’s
decision in Roe. This course, however, proved to be problematic.
Following Roe, a series of constitutional amendments were introduced in an attempt to overrule
the Court’s decision.180 To date, however, no constitutional amendment has been passed in either
the House or the Senate. Moreover, for several years, proponents of a constitutional amendment
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 chamber.

176 Id. at 309-10.
177 448 U.S. 358 (1980).
178 See, e.g., S. 1173, 110th Cong. (2007).
179 18 U.S.C. 248 note.
180 See e.g., H.J. Res. 527, 94th Cong. (1975).
Congressional Research Service

17

Abortion: Judicial History and Legislative Response

S.J.Res. 3 was introduced during the 98th Congress.181 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 that eliminated the
enforcement language and declared simply, “A right to abortion is not secured by this
Constitution.”182 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. On June 28, 1983, S.J.Res. 3
was defeated (50-49), not having obtained the two-thirds vote necessary for a constitutional
amendment.183
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 the procedure 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
Congress to enforce the due process and equal protection guarantees of the amendment “by
appropriate legislation.”184 For example, 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.185
Hearings on the bill were marked by controversy over the constitutionality of the declaration that
human life begins at conception and over the withdrawal of lower federal court jurisdiction over
suits challenging state laws enacted pursuant to federal legislation.186 A modified version of S.
158 was approved in subcommittee, but that bill, S. 1741, was not further considered in the 97th
Congress.187
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 the procedure. 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.188 Abortions were not initially covered under the
program. During the Nixon Administration, however, the Department of Health, Education, and

181 S.J.Res. 3, 98th Cong. (1983).
182 Id.
183 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).
184 U.S. Const. amend. XIV, § 5.
185 S. 158, 97th Cong. (1981).
186 The Human Life Bill: Hearings Before the Senate Subcommittee on Separation of Powers, 97th Cong. (1982).
187 S. 1741, 97th Cong. (1981).
188 Pub. L. No. 89-97, tit. I, § 121(a), 79 Stat. 286, 344 (1965).
Congressional Research Service

18

Abortion: Judicial History and Legislative Response

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 several other appropriations
bills. Although the Foreign Assistance Act of 1973 included the first of such restrictions,189 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).190
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.191 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.192
Efforts to restore the original language (providing only for the life of the woman exception) failed
in the 104th Congress.
Beginning in 1978, Hyde-type abortion limitations were added to the Department of Defense
appropriations measures.193 This recurring prohibition was eventually codified and made
permanent by the Department of Defense Authorization Act, 1985.194
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.195 Prior to this restriction, federal government health insurance plans provided coverage
for both therapeutic and nontherapeutic abortions.
The restriction on FEHBP funds followed an administrative attempt by the Office of Personnel
Management (OPM) to eliminate nonlife-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, the court found that absent a specific congressional statutory directive,
there was no basis for OPM’s actions.196

189 Pub. L. No. 93-189, § 2, 87 Stat. 714, 716 (1973).
190 See, e.g., Consolidated Appropriations Act, 2018, Pub. L. No. 115-141, div. H, tit. V, § 506 (2018).
191 See note 125.
192 Pub. L. No. 103-112, tit. V, § 509, 107 Stat. 1082, 1113 (1993).
193 Pub. L. No. 95-457, tit. VIII, § 863, 92 Stat. 1231, 1254 (1978).
194 Pub. L. No. 98-525, tit. XIV, § 1401(e)(5)(A), 98 Stat. 2492, 2618 (1984) (codified at 10 U.S.C. § 1093).
195 See Pub. L. No. 98-151, § 101(f), 97 Stat. 964, 973 (1983) (referencing H.R. 4139, the Treasury, Postal Service and
General Government Appropriations Act, 1984, as passed by the House of Representatives on October 27, 1983).
Section 618 of H.R. 4139 stated: “No funds appropriated by this Act shall be available to pay for an abortion, except
where the life of the mother would be endangered if the fetus were carried to term, or the administrative expenses in
connection with any health plan under the Federal employees health benefit program which provides any benefits or
coverages for abortions, except where the life of the mother would be endangered if the fetus were carried to term,
under such negotiated plans after the last day of the contracts currently in force.”
196 525 F.Supp.250 (D.D.C. 1981).
Congressional Research Service

19

Abortion: Judicial History and Legislative Response

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.197
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 or incest. First enacted as part of
the FY1987 continuing appropriations measure,198 this provision has been reenacted as part of the
annual spending bill in each subsequent fiscal year.199
Finally, since 1979, restrictive abortion provisions have been included in appropriations measures
for the District of Columbia (DC). The passage of the District of Columbia Appropriations Act,
1989, marked the first successful attempt to extend such restrictions to the use of DC funds, as
well as federal funds.200 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, only federal funds were restricted.201 The Dornan Amendment has since been
reimposed.202
Other Legislation
In addition to the temporary funding limitations included in appropriations 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 bars the use of
funds for programs in which abortion is a method of family planning.203
The Legal Services Corporation Act of 1974 prohibits lawyers in federally funded legal aid
programs from providing legal assistance for procuring nontherapeutic 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.204
The Pregnancy Discrimination Act 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.205
The Civil Rights Restoration Act of 1988 states that nothing in the measure either prohibits or
requires any person or entity from providing or paying for services related to abortion.206

197 Pub. L. No. 104-52, tit. V, §§ 524, 525, 109 Stat. 468, 495 (1995).
198 Pub. L. No. 99-591, tit. II, § 209, 100 Stat. 3341, 3341-56 (1986).
199 See, e.g., Consolidated Appropriations Act, 2018, Pub. L. No. 115-141, div. B, tit. II, § 202 (2018).
200 Pub. L. No. 100-462, tit I. § 117, 102 Stat. 2269, 2269-9 (1988).
201 Pub. L. No. 11-117, div. C, tit. VIII, § 814, 123 Stat. 3034, 3224 (2009).
202 Consolidated Appropriations Act, 2018, Pub. L. No. 115-141, div. E, tit. VIII, § 810 (2018).
203 42 U.S.C. § 300a-6.
204 42 U.S.C. § 2996f(b)(8).
205 42 U.S.C. § 2000e(k).
206 20 U.S.C. § 1688.
Congressional Research Service

20

Abortion: Judicial History and Legislative Response

The Civil Rights Commission Amendments Act of 1994 prohibits the commission from studying
or collecting information about U.S. laws and policies concerning abortion.207
Health Reform
The Patient Protection and Affordable Care Act (ACA) was enacted on March 23, 2010, to reduce
the number of uninsured individuals and restructure the private health insurance market.208 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 nontherapeutic abortion
services.209
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).210 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.211
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.212 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.213
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.214 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.215 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.216 State health insurance
commissioners ensure compliance with the segregation requirements in accordance with

207 42 U.S.C. § 1975a(f).
208 Pub. L. No. 111-148, 124 Stat. 119 (2010).
209 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.
210 42 U.S.C. § 18023(b)(1)(B).
211 Id. § 18023(b)(2).
212 Id. § 18023(b)(1)(A).
213 Id. § 18023(a)(1).
214 Id. § 18023(b)(2)(A).
215 Id. § 18023(b)(2)(B)(i).
216 Id. § 18023(b)(2)(B)(ii).
Congressional Research Service

21

Abortion: Judicial History and Legislative Response

applicable provisions of generally accepted accounting requirements, Office of Management and
Budget circulars on funds management, and Government Accountability Office guidance on
accounting.217
To determine the actuarial value of the coverage for elective abortions, the plan issuer estimates
the basic per enrollee, per month cost, determined on an average actuarial basis, for including
such coverage.218 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.219 The per month cost
has to be estimated as if coverage were included for the entire population covered, but cannot be
less than $1 per enrollee, per month.220
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.221 The notice, any plan advertising used by the
issuer, any information provided by the exchange, and any other information specified by the
Secretary provides information only with respect to the total amount of the combined payments
for elective abortion services and other services covered by the plan.222
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.223 State laws concerning the prohibition or
requirement of coverage or funding for abortions, and state laws involving abortion-related
procedural requirements are not preempted.224 Federal conscience protection and abortion-related
antidiscrimination laws, as well as Title VII of the Civil Rights Act of 1964, are also not
affected.225
Legislation in the 116th Congress
FY2020 Appropriations
On December 20, 2019, the President signed into law H.R. 1158, the Consolidated Appropriations
Act, 2020.226 The measure included appropriations for the Department of Justice, FEHBP, and the
District of Columbia, and maintained long-standing funding restrictions on abortion and abortion-
related services. Funds provided to the Department of Justice could not be used to pay for an
abortion, except when the life of the mother would have been endangered by a fetus carried to

217 Id. § 18023(b)(2)(E)(i).
218 Id. § 18023(b)(2)(D)(i).
219 Id. § 18023(b)(2)(D)(ii)(I).
220 Id. § 18023(b)(2)(D)(ii)(III).
221 Id. § 18023(b)(3)(A).
222 Id. § 18023(b)(3)(B).
223 Id. § 18023(b)(4).
224 Id. § 18023(c)(1).
225 Id. § 18023(c)(2).
226 Pub. L. No. 116-93, 133 Stat. 2317 (2019).
Congressional Research Service

22

Abortion: Judicial History and Legislative Response

term, or in the case of rape or incest.227 The omnibus measure prohibited the use of appropriated
funds to pay for an abortion or for any administrative expenses related to a health plan in the
FEHBP that provided benefits or coverage for abortions.228 This prohibition, however, did not
apply when the life of the mother would have been endangered by a fetus carried to term, or in
the case of rape or incest. The omnibus measure also prohibited the use of federal and local DC
funds to pay for abortion.229
The President also signed H.R. 1865, the Further Consolidated Appropriations Act, 2020, on
December 20, 2019.230 The act provided appropriations for HHS, foreign operations, and various
other federal agencies. Under the measure, 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 when a woman who suffered from a physical disorder, injury, or illness
would have her life jeopardized if an abortion were not performed.231
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.232 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.233 Appropriated funds were also not available to lobby for
or against abortion.234 To reduce reliance on abortions in developing nations, funds were available
only for voluntary family planning projects that offered a broad range of family planning methods
and services.235 These 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.236 In addition, amounts appropriated to the UNFPA were required to be kept in
an account that was separate from the UNFPA’s other accounts.237 The UNFPA could not
commingle funds provided under the omnibus measure with the entity’s other funds.
FY2021 Appropriations
On December 27, 2020, the President signed into law H.R. 133, the Consolidated Appropriations
Act, 2021.238 The measure maintains the same abortion funding restrictions that were included in
the Consolidated Appropriations Act, 2020, and Further Consolidated Appropriations Act, 2020,

227 Id. § 202, div. B, tit. II, 133 Stat. 2317, 2412.
228 Id. § 613, div. C, tit. VI, 133 Stat. 2317, 2480.
229 Id. § 810, div. C, tit. VIII, 133 Stat. 2317, 2500.
230 Pub. L. No. 116-94, 133 Stat. 2534 (2019).
231 Id. §§ 506, 507, div. A, tit. V, 133 Stat. 2534, 2606-07.
232 Id. div. G, tit. III, 133 Stat. 2534, 2827.
233 Id.
234 Id.
235 Id.
236 Id. § 7057(d), div. G, tit. VII, 133 Stat. 2534, 2919.
237 Id.
238 H.R. 133, 116th Cong. (2020).
Congressional Research Service

23

Abortion: Judicial History and Legislative Response

for the Department of Justice,239 FEHBP,240 the District of Columbia,241 HHS,242 and foreign
operations.243 These restrictions apply to funds appropriated for FY2021.

Author Information

Jon O. Shimabukuro

Legislative Attorney

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
shared staff to congressional committees and Members of Congress. It operates solely at the behest of and
under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other
than public understanding of information that has been provided by CRS to Members of Congress in
connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not
subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in
its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or
material from a third party, you may need to obtain the permission of the copyright holder if you wish to
copy or otherwise use copyrighted material.

239 Id. § 202, div. B, tit. II.
240 Id. § 613, div. E, tit. VI.
241 Id. § 810, div. E, tit. VIII.
242 Id. §§ 506, 507, div. H, tit. V.
243 Id. div. K, tit. III; §§ 7018, 7057(d), div. K, tit. VII.
Congressional Research Service
RL33467 · VERSION 50 · UPDATED
24