Order Code IB95095
CRS Issue Brief for Congress
Received through the CRS Web
Updated February 6, 2006
Karen J. Lewis and Jon O. Shimabukuro
American Law Division
Congressional Research Service ˜ The Library of Congress
MOST RECENT DEVELOPMENTS
BACKGROUND AND ANALYSIS
Roe v. Wade and Doe v. Bolton
Supreme Court Decisions Subsequent to Roe and Doe
Public Funding of Abortions
The 1977 Trilogy — Restrictions on Public Funding of Nontherapeutic or Elective
Public Funding of Therapeutic or Medically Necessary Abortions
Bills that Seek to Prohibit the Right to Abortion by Statute
Hyde-Type Amendments to Appropriation Bills
Legislation in the 108th Congress
Legislation in the 109th Congress
Abortion: Legislative Response
In 1973, the U.S. Supreme Court held
that the Constitution protects a woman’s
decision whether to terminate her pregnancy,
Roe v. Wade, 410 U.S. 113, and that a state
may not unduly burden the exercise of that
fundamental right by regulations that prohibit
or substantially limit access to the means of
effectuating that decision, Doe v. Bolton, 410
U.S. 179. But rather than settling the issue,
the Court’s rulings have kindled heated debate
and precipitated a variety of governmental
actions at the national, state, and local levels
designed either to nullify the rulings or limit
their effect. These governmental regulations
have, in turn, spawned further litigation in
which resulting judicial refinements in the law
have been no more successful in dampening
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
In the 109th Congress, H.R. 748, the
Child Interstate Abortion Notification Act,
incorporates the language of the Child Custody Protection Act, but also imposes a 24hour parental notification requirement for
abortions occurring outside a minor’s state of
Since Roe v. Wade, Congress has attached abortion funding restrictions to numerous appropriations measures. The greatest
focus has been on restricting Medicaid abortions under the annual appropriations for the
Department of Health and Human Services.
This series of restrictions is popularly known
as the “Hyde Amendments.” Restrictions on
the use of appropriated funds affect numerous
federal entities, including the Department of
Justice, where federal funds may not be used
to perform abortions in the federal prison
system except in cases of rape or endangerment of the mother. Such restrictions also
impact the District of Columbia, where both
federal and local funds may not be used to
perform abortions except in cases of rape,
incest or endangerment of the mother, and
affect international organizations like the
United Nations Population Fund, which receives funds through the annual Foreign
Operations appropriations measure.
In recent years, the rights enumerated in
Roe have been redefined by decisions such as
Webster v. Reproductive Health Services,
which gave greater leeway to the States to
restrict abortion, and Rust v. Sullivan, which
narrowed the scope of permissible
abortion-related activities that are linked to
federal funding. The decision in Planned
Parenthood v. Casey, which established the
“undue burden” standard for determining
whether abortion restrictions are permissible,
gave Congress additional impetus to move on
statutory responses to the abortion issue, such
as the Freedom of Choice Act.
In each Congress since 1973, constitutional amendments to prohibit abortion have
been introduced. These measures have been
considered in committee, but none has been
passed by either the House or the Senate.
Congressional Research Service
The Library of Congress
MOST RECENT DEVELOPMENTS
On January 18, 2006, the U.S. Supreme Court vacated the decision of the U.S. Circuit
Court of Appeals for the First Circuit which found New Hampshire’s Parental Notification
Prior to Abortion Act unconstitutional. In Ayotte v. Planned Parenthood of Northern New
England, a unanimous Court concluded that a wholesale invalidation of the act was
inappropriate. Finding that only a few applications of the statute raised constitutional
concerns, the Court remanded the case to the lower courts to render narrower declaratory and
injunctive relief. Additional discussion of Ayotte is included in the Judicial History section
of this report.
BACKGROUND AND ANALYSIS
The primary focus of this issue brief is legislative action with respect to abortion.
However, discussion of the various legislative proposals necessarily involves a brief
discussion of the leading U.S. Supreme Court decisions concerning a woman’s right to
choose whether to terminate her pregnancy. For a more detailed discussion of the relevant
case law, see CRS Report 95-724, Abortion Law Development: A Brief Overview, by Karen
J. Lewis and Jon O. Shimabukuro.
Roe v. Wade and Doe v. Bolton
In 1973, the Supreme Court issued its landmark abortion rulings in Roe v. Wade, 410
U.S. 113 (1973), and Doe v. Bolton, 410 U.S. 179 (1973). In those cases, the Court found
that Texas and Georgia statutes regulating abortion interfered to an unconstitutional extent
with a woman’s right to decide whether to terminate her pregnancy. The Texas statute
forbade all abortions not necessary “for the purpose of saving the life of the mother.” The
Georgia enactment permitted abortions when continued pregnancy seriously threatened the
woman’s life or health, when the fetus was very likely to have severe birth defects, or when
the pregnancy resulted from rape. The Georgia statute required, however, that abortions be
performed only at accredited hospitals and only after approval by a hospital committee and
two consulting physicians.
The Court’s decisions were delivered by Justice Blackmun for himself and six other
Justices. Justices White and Rehnquist dissented. The Court ruled that states may not
categorically proscribe abortions by making their performance a crime, and that states may
not make abortions unnecessarily difficult to obtain by prescribing elaborate procedural
guidelines. The constitutional basis for the decisions rested upon the conclusion that the
Fourteenth Amendment right of personal privacy embraced a woman’s decision whether to
carry a pregnancy to term. Regarding the scope of that privacy right, the Court stated that
it included “only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept
of ordered liberty’” and “bears some extension to activities related to marriage, procreation,
contraception, family relationship, and child rearing and education.” Roe v. Wade, 410 U.S.
at 152-53. Such a right, the Court concluded, “is broad enough to encompass a woman’s
decision whether or not to terminate her pregnancy.” Id. at 153.
With respect to protection of the right against state interference, the Court held that
since the right of personal privacy is a fundamental right, only a “compelling State interest”
could justify its limitation by a state. Thus, while it recognized the legitimacy of the state
interest in protecting maternal health and the preservation of the fetus’ potential life (id. at
148-150), as well as the existence of a rational connection between these two interests and
the state’s anti-abortion law, the Court held these interests insufficient to justify an absolute
ban on abortions. Instead, the Court emphasized the durational nature of pregnancy and held
the state’s interests to be sufficiently compelling to permit curtailment or prohibition of
abortion only during specified stages of pregnancy. The High Court concluded that until the
end of the first trimester, an abortion is no more dangerous to maternal health than childbirth
itself, and found that “[With] respect to the State’s important and legitimate interest in the
health of the mother, the “compelling” point, in light of present medical knowledge, is at
approximately the end of the first trimester.” Id. at 163. Only after the first trimester does
the state’s interest in protecting maternal health provide a sufficient basis to justify state
regulation of abortion, and then only to protect this interest. Id. at 163-64.
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 formed the grist for a burgeoning book of
Supreme Court Decisions Subsequent to Roe and Doe
The post-Roe litigation included challenges to state restrictions requiring informed
consent/waiting periods (Planned Parenthood v. Danforth, 428 U.S. 52 (1976), City of Akron
v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983)); spousal/parental
consent (Planned Parenthood v. Danforth, supra, Bellotti v. Baird, 443 U.S. 622 (1979), City
of Akron, supra, Planned Parenthood Association of Kansas City, Missouri Inc. v. Ashcroft,
462 U.S. 476 (1983)); parental notice (Bellotti v. Baird, supra, H. L. v. Matheson, 450 U.S.
398 (1981), Hartigan v. Zbaraz, 484 U.S. 171 (1987), Hodgson v. Minnesota, 497 U.S. 417
(1990), Ohio v. Akron Center for Reproductive Health, 497 U.S. 502 (1990); reporting
requirements (Planned Parenthood v. Danforth, supra, Planned Parenthood of Kansas City,
Missouri, Inc. v. Ashcroft, supra); advertisement of abortion services (Bigelow v. Virginia,
421 U.S. 809 (1975); abortions by nonphysicians (Connecticut v. Menillo, 423 U.S. 9 (1975);
locus of abortions (City of Akron, supra, Ashcroft, supra, Simopoulos v. Virginia, 462 U.S.
506 (1983)); viability, fetal testing, and disposal of fetal remains (Planned Parenthood of
Central Missouri v. Danforth, supra, Colautti v. Franklin, 439 U.S. 379 (1979), Ashcroft,
supra, City of Akron, supra); and “partial-birth” abortions (Stenberg v. Carhart, 530 U.S.
The Court in Rust v. Sullivan, 500 U.S. 173 (1991), upheld on both statutory and
constitutional grounds HHS’ Title X regulations restricting recipients of federal family
planning funding from using federal funds to counsel women about the option of abortion.
This case can better be described as one involving a challenge to First Amendment free
speech rights than to the constitutionally guaranteed substantive right to an abortion;
however, following its earlier public funding cases (Maher v. Roe and Harris v. McRae) as
precedent, the Court did conclude that a woman’s right to an abortion was not burdened by
these regulations. The Court reasoned that there was no such violation because the
government has no duty to subsidize an activity simply because it is constitutionally
protected and because a woman is “in no worse position than if Congress had never enacted
Title X.” For the purpose of this issue brief, the two landmark cases relevant for discussion
are Webster v. Reproductive Health Services, 492 U.S. 490 (1989), and Planned Parenthood
of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), because they represent a shift
in direction by the Supreme Court from the type of constitutional analysis it articulated in
Roe v. Wade and have implications for future legislative action and how such statutory
enactments will be judged by the courts in the years to come.
The Supreme Court upheld the constitutionality of the State of Missouri’s abortion
statute in Webster v. Reproductive Health Services, 492 U.S. 49 (1989). In this 5-4 decision,
while the majority did not overrule Roe v. Wade, it indicated that it was willing to apply a
less stringent standard of review to state restrictions on abortion. Webster made it clear that
state legislatures have considerable discretion to pass restrictive legislation in the future, with
the likelihood that such laws would probably pass constitutional muster.
The main provisions in the 1986 Missouri law upheld by the Court included (1) barring
public employees from performing or assisting in abortions not necessary to save the life of
the mother; (2) barring the use of public buildings for performing abortions, despite the fact
that there were no public monies involved (e.g., a building situated on public land); and (3)
requiring physicians believing a woman desiring an abortion to be at least 20 weeks pregnant
to perform tests to determine whether the fetus is viable. The Webster ruling was narrow
in that it did not affect private doctors’ offices or clinics, where most abortions are
performed. Its significance derives more from the rationales articulated by the five justices
regarding how abortion restrictions would be reviewed in the future. However, because the
Missouri law did not limit abortion prior to viability, the plurality did not believe it was
necessary to consider overruling Roe. Webster set the stage for the Court’s 1992 decision
in Casey where a real shift in direction was pronounced.
Both Webster and Rust energized legislative activity, the former at both the federal and
state levels and the latter at the federal level. Some of the state legislative proposals that
became law were challenged in the courts (e.g., Pennsylvania, Guam, Louisiana, and Utah).
The Pennsylvania case, Planned Parenthood of Southeastern Pennsylvania v. Casey, 505
U.S. 833 (1992), was decided by the Supreme Court on June 29, 1992. In a highly
fractionated 5-4 decision, the Court reaffirmed the basic constitutional right to an abortion
while simultaneously allowing some new restrictions. Justices O’Connor, Kennedy and
Souter wrote the plurality opinion, and they were joined in part by Justices Stevens and
Blackmun. Chief Justice Rehnquist and Justices White, Scalia and Thomas dissented. The
Court refused to overrule Roe v. Wade, and the plurality explained at length why it was
important to follow precedent. At the same time, the plurality indicated that state laws which
contained an outright ban on abortion would be unconstitutional. Nevertheless, the Court
abandoned the trimester framework articulated in Roe and the strict scrutiny standard of
judicial review of abortion restrictions. Instead, it adopted a new analysis, “undue burden.”
Courts will now need to ask the question whether a state abortion restriction has the effect
of imposing an “undue burden” on a woman’s right to obtain an abortion. “Undue burden”
was defined as a “substantial obstacle in the path of a woman seeking an abortion of a
nonviable fetus.” 505 U.S. at 877.
The Court applied this new analysis to the Pennsylvania statute and concluded that four
of the provisions did not impose an undue burden on the right to abortion and were
constitutional. Those provisions upheld were the 24-hour waiting period; informed consent;
parental consent for minors’ abortions with a judicial bypass; and reporting requirements.
The spousal notification provision, requiring a married woman to tell her husband she
intends to have an abortion, did not survive the “undue burden” test, and it was struck down
as being unconstitutional.
The Court’s decision in Casey is significant because under the new standard of review
more state restrictions will be able to pass constitutional muster. Also, the Court found that
the state’s interest in protecting the potentiality of human life extended throughout the course
of the pregnancy, and thus the state could regulate, even to the point of favoring childbirth
over abortion, from the outset. Under Roe, which utilized the trimester framework, during
the first trimester of pregnancy, the woman’s decision to terminate her pregnancy was
reached in consultation between her and her doctor with virtually no state involvement.
Also, under Roe, abortion was a “fundamental right” that could not be restricted by the state
except to serve a “compelling” state interest. Roe’s strict scrutiny form of review resulted
in most state regulations being invalidated during the first two trimesters of pregnancy. The
“undue burden” standard will allow more regulation during that period. This is evident from
the fact that in Casey the Court overruled in part two of its earlier decisions which had
followed Roe, City of Akron v. Akron Center of Reproductive Health, 462 U.S. 416 (1983)
and Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747
(1986.) In the 1983 and 1986 cases, the Court, applying strict scrutiny, had struck down
24-hour waiting periods and informed consent provisions; whereas in Casey, applying undue
burden, the Court upheld similar provisions.
Casey had its greatest immediate effect on women in the State of Pennsylvania;
however, its reasoning prompted other states to pass similar restrictions that could withstand
challenge under the “undue burden” standard.
In Ayotte v. Planned Parenthood of Northern New England, No. 04-1144 (2006), the
Court concluded that a wholesale invalidation of New Hampshire’s Parental Notification
Prior to Abortion Act was inappropriate. Finding that only a few applications of the act
raised constitutional concerns, the Court remanded the case to the lower courts to render
narrower declaratory and injunctive relief.
The New Hampshire law at issue in Ayotte prohibits physicians from performing an
abortion on a pregnant minor or a woman for whom a guardian or conservator has been
appointed until 48 hours after written notice has been delivered to at least one parent or
guardian. The notification requirement may be waived under certain specified
circumstances. For example, notification is not required if the attending abortion provider
certifies that an abortion is necessary to prevent the woman’s death and there is insufficient
time to provide the required notice.
Planned Parenthood of Northern New England and several other abortion providers
challenged the New Hampshire statute on the grounds that it does not include an explicit
waiver that would allow an abortion to be performed to protect the health of the woman. The
First Circuit invalidated the statute in its entirety on that basis. The First Circuit also
maintained that the act’s life exception was impermissibly vague and forced physicians to
gamble with their patients’ lives by preventing them from performing an abortion without
notification until they were certain that death was imminent.
Declining to revisit its prior abortion decisions, the Court insisted that Ayotte presented
a question of remedy. Maintaining that the act would be unconstitutional only in medical
emergencies, the Court determined that a more narrow remedy, rather than the wholesale
invalidation of the act, was appropriate: “Generally speaking, when confronting a
constitutional flaw in a statute, we try to limit the solution to the problem. We prefer, for
example, to enjoin only the unconstitutional applications of a statute while leaving other
applications in force . . . or to sever its problematic portions while leaving the remainder
intact.” Slip op. at 7.
The Court identified three interrelated principles that inform its approach to remedies.
First, the Court tries not to nullify more of a legislature’s work than is necessary because a
ruling of unconstitutionality frustrates the intent of the elected representatives of the people.
Second, the Court restrains itself from rewriting a state law to conform to constitutional
requirements, even as it attempts to salvage the law. The Court explained that its
constitutional mandate and institutional competence are limited, noting that “making
distinctions in a murky constitutional context” may involve a far more serious invasion of
the legislative domain than the Court ought to take. Slip op. at 8.
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?”
On remand, the lower courts will attempt to determine the intent of the New Hampshire
legislature when it enacted the parental notification statute. Although the State argued that
the measure’s severability clause illustrates the legislature’s understanding that the act should
continue in force even if certain provisions are invalidated, the respondents insisted that New
Hampshire legislators actually preferred no statute rather than one that would be enjoined in
the manner described by the Court. Thus, despite the Court’s recognition that the statute
could be saved from total invalidation, it remains possible that a lower court will determine
that the New Hampshire legislature never intended for the act to operate in a limited fashion
or with any kind of health exception read into the statute.
Some have criticized the Court’s willingness to invalidate the statute only as it applies
during medical emergencies. While it is not uncommon for federal courts to save a statute
from invalidation by severing unconstitutional provisions, these courts have generally limited
this practice to federal statutes. Critics maintain that the Court’s opinion represents an
impermissible expansion of federal judicial power over the states. They also argue that the
opinion could encourage states to enact legislation with provisions that are possibly or clearly
unconstitutional, knowing that a reviewing court will sever the impermissible provisions and
allow the remaining statute to continue in force.
Public Funding of Abortions
After the Supreme Court’s decisions in Roe and Doe, one of the first federal legislative
responses was enactment of restrictions on the use of federal money for abortions (e.g.,
restrictions on Medicaid funds — the so-called Hyde Amendment). Almost immediately
these restrictions were challenged in the courts. Two categories of public funding cases have
been heard and decided by the Supreme Court: those involving (1) funding restrictions for
nontherapeutic (elective) abortions; and (2) funding limitations for therapeutic (medically
The 1977 Trilogy — Restrictions on Public Funding of Nontherapeutic or
Elective Abortions. The Supreme Court, in three related decisions, ruled that the states
have neither a statutory nor a constitutional obligation to fund elective abortions or provide
access to public facilities for such abortions (Beal v. Doe, 432 U.S. 438 (1977); Maher v.
Roe, 432 U.S. 464 (1977); and Poelker v. Doe, 432 U.S. 519 (1977) (per curiam)).
In Beal v. Doe, the Court held that nothing in the language or legislative history of Title
XIX of the Social Security Act (Medicaid) requires a participating state to fund every
medical procedure falling within the delineated categories of medical care. The Court ruled
that it was not inconsistent with the act’s goals to refuse to fund unnecessary medical
services. However, the Court did indicate that Title XIX left a state free to include coverage
for nontherapeutic abortions should it choose to do so. Similarly, in Maher v. Roe, the Court
held that the Equal Protection Clause does not require a state participating in the Medicaid
program to pay expenses incident to nontherapeutic abortions simply because the state has
made a policy choice to pay expenses incident to childbirth. More particularly, Connecticut’s
policy of favoring childbirth over abortion was held not to impinge upon the fundamental
right of privacy recognized in Roe v. Wade, which protects a woman from undue interference
in her decision to terminate a pregnancy. Finally, in Poelker v. Doe, the Court upheld a
municipal regulation that denied indigent pregnant women nontherapeutic abortions at public
hospitals. It also held that staffing those hospitals with personnel opposed to the
performance of abortions did not violate the Equal Protection Clause of the Constitution.
Poelker, however, did not deal with the question of private hospitals and their authority to
prohibit abortion services.
Public Funding of Therapeutic or Medically Necessary Abortions. The 1977
Supreme Court decisions left open the question whether federal law, such as the Hyde
Amendment (restrictions on Medicaid funding of abortion), or similar state laws, could
validly prohibit governmental funding of therapeutic abortions.
The Court in Harris v. McRae, 448 U.S. 297 (1980), ruled 5-4 that the Hyde
Amendment’s abortion funding restrictions were constitutional. The majority found that the
Hyde Amendment neither violated the due process or equal protection guarantees of the Fifth
Amendment nor the Establishment [of religion] Clause of the First Amendment. The Court
also upheld the right of a state participating in the Medicaid program to fund only those
medically necessary abortions for which it received federal reimbursement. In companion
cases raising similar issues, the Court held that a state of Illinois statutory funding restriction
comparable to the Federal Hyde Amendment also did not contravene the constitutional
restrictions of the Equal Protection Clause of the Fourteenth Amendment (Williams v.
Zbaraz; Miller v. Zbaraz; U.S. v. Zbaraz, 448 U.S. 358 (1980)). The Court’s rulings in
McRae and Zbaraz mean there is no statutory or constitutional obligation of the states or the
federal government to fund medically necessary abortions.
On June 28, 2000, the Court decided Stenberg v. Carhart, 530 U.S. 914 (2000), its first
substantive abortion case since Casey. In Stenberg, the Court determined that a Nebraska
statute that prohibited the performance of so-called “partial-birth” abortions was
unconstitutional because it failed to include an exception to protect the health of the mother
and because the language defining the prohibited procedure was too vague.1 In affirming the
decision of the Eighth U.S. Circuit Court of Appeals, 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 dilation and evacuation (D&E)
procedure that is the most common abortion procedure during the second trimester of
See also CRS Report RL30415, Partial-Birth Abortion: Recent Developments in the Law, by Jon
pregnancy. The Court believed that the statute was likely to prompt those who perform the
D&E procedure to stop because of fear of prosecution and conviction. The result would be
the imposition of an “undue burden” on a woman’s ability to have an abortion.
During the 106th Congress, both the Senate and House passed bills that would have
prohibited the performance of partial-birth abortions. The Senate passed the Partial-Birth
Abortion Ban Act of 1999 (S. 1692) on October 21, 1999 by a vote of 63-34. H.R. 3660, the
Partial-Birth Abortion Ban Act of 2000, was passed by the House on April 5, 2000 by a vote
of 287-141. Although the House requested a conference, no further action was taken.
Similar partial-birth abortion measures were vetoed during the 104th and 105th Congresses.
In both instances, President Clinton focused on the failure to include an exception to the ban
when the mother’s health is an issue.
During the 107th Congress, the House passed H.R. 4965, the Partial-Birth Abortion Ban
Act of 2002, by a vote of 274-151. H.R. 4965 would have prohibited physicians from
performing a partial-birth abortion except when it was necessary to save the life of a mother
whose life was endangered by a physical disorder, physical illness, or physical injury,
including a life-endangering physical condition caused by or arising from the pregnancy
itself. The bill defined the term “partial-birth abortion” to mean an abortion in which “the
person performing the abortion deliberately and intentionally vaginally delivers a living fetus
until, in the case of a head-first presentation, the entire fetal head is outside the body of the
mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is
outside the body of the mother for the purpose of performing an overt act that the person
knows will kill the partially delivered living fetus.” Physicians who violated the act would
have been subject to a fine, imprisonment for not more than two years, or both. H.R. 4965
was not considered by the Senate.
During the 108th Congress, on November 5, 2003, the President signed S. 3, the PartialBirth Abortion Ban Act of 2003 (P.L. 108-105). The Senate initially passed S. 3 on March
13, 2003 by a vote of 64-33. H.R. 760, a companion measure to S. 3, was passed by the
House on June 4, 2003 by a vote of 282-139. Shortly after passage of H.R. 760, pursuant to
H.Res. 257, the language of S. 3 was struck, and the provisions of H.R. 760 were inserted
into the measure. On September 17, 2003, the Senate voted 93-0 to reject the House
amendment to S. 3. The Senate’s vote moved the two measures to conference. On
September 30, 2003, a House-Senate conference committee agreed to report a version of the
bill that was identical to the House-passed measure. The House approved H.Rept. 108-288,
the conference report for the Partial-Birth Abortion Ban Act of 2003, by a vote of 281-142
on October 2, 2003. The Senate agreed to the conference report by a vote of 64-34 on
October 21, 2003.
In general, the act prohibits physicians from performing a partial-birth abortion except
when it is necessary to save the life of a mother whose life is endangered by a physical
disorder, physical illness, or physical injury, including a life-endangering physical condition
caused by or arising from the pregnancy itself. Physicians who violate the act are subject to
a fine, imprisonment for not more than two years, or both.
Despite the Court’s holding in Stenberg and past decisions that have found that
restrictions on abortion must allow for the performance of an abortion when it is necessary
to protect the health of the mother, the Partial-Birth Abortion Ban Act of 2003 does not
include such an exception. In his introductory statement for the act, Senator Rick Santorum
discussed the measure’s lack of a health exception.2 He maintained that an exception is not
necessary because of the risks associated with partial-birth abortions. Senator Santorum
insisted that congressional hearings and expert testimony demonstrate “that a partial birth
abortion is never necessary to preserve the health of the mother, poses significant health risks
to the woman, and is outside the standard of medical care.”3
Within two days of the act’s signing, federal courts in Nebraska, California, and New
York blocked its enforcement. Since that time, the U.S. Courts of Appeals for the Second,
Eighth, and Ninth Circuits have affirmed lower court decisions that have found the act to be
unconstitutional. In Carhart v. Gonzales, 413 F.3d 791 (8th Cir. 2005), the first of the Court
of Appeals decisions to be issued, the Eighth Circuit found the Partial-Birth Abortion Ban
Act unconstitutional based solely on its failure to include a health exception. The court
indicated that the government had to demonstrate “that relevant evidentiary circumstances
(such as the presence of a newfound medical consensus or medical studies)” had changed to
show that a health exception is unnecessary. Id. at 802. Because there was no new evidence,
the court refused to disavow Stenberg and upheld the act. Finding the act unconstitutional
for its lack of a health exception, the court declined to consider whether the act imposed an
undue burden on a woman’s ability to have an abortion.
On January 31, 2006, the Second and Ninth Circuits issued their decisions on the
Partial-Birth Abortion Ban Act. In National Abortion Federation v. Gonzales, No. 04-5201CV (2d Cir. 2006), the Second Circuit determined that the act is unconstitutional because it
does not include a health exception. In light of the Court’s decision in Ayotte, however, the
Second Circuit deferred the question of remedy until after the parties could submit briefs on
In Planned Parenthood v. Gonzales, No. 04-16621 (9th Cir. 2006), the Ninth Circuit
concluded that the act is unconstitutional for three distinct reasons: because it lacks a health
exception; because it imposes an undue burden on a woman’s ability to obtain a previability
abortion by limiting the availability of the D&X abortion procedure, as well as the D&E
procedure; and because its definition of the unlawful procedure is unconstitutionally vague,
depriving physicians of fair notice of what is prohibited and encouraging arbitrary
enforcement. Unlike the Second Circuit, the Ninth Circuit found that a permanent injunction
was the appropriate remedy for the unconstitutional statute. The court observed that a more
narrow injunction would require the court “to violate the intent of the legislature and usurp
the policy-making authority of Congress.” Slip op. at 49. The legislative history of the
Partial-Birth Abortion Ban Act reveals Congress’s rejection of numerous amendments that
would have added a health exception to the measure. Thus, the Ninth Circuit maintained that
a decision that read a health exception into the statute would undermine congressional intent.
In September 2005, the Attorney General filed a petition for review of Carhart by the
Court. Although there has been no split among the Courts of Appeals that have considered
the validity of the Partial-Birth Abortion Ban Act, the Court is still expected to consider the
issue in the near future.
149 Cong. Rec. S2523 (daily ed. Feb. 14, 2003) (statement of Sen. Santorum).
Rather than settle the issue, the Court’s decisions in Roe v. Wade and Doe v. Bolton
have prompted debate and precipitated a variety of governmental actions at the national, state
and local levels to limit their effect. As the previous Congresses had been, the 108th
Congress continued to be a forum for proposed legislation and constitutional amendments
aimed at limiting or prohibiting the practice of abortion. Further activity is occurring in the
109th Congress. This section examines the history of the federal legislative response to the
In the decade prior to the decision in Roe v. Wade, 10 pieces of legislation relating to
abortion were introduced in either the House or the Senate. Since 1973, more than 1,000
separate legislative proposals have been introduced. The wide disparity in these statistics
illustrates the impetus that the Court’s 1973 decisions gave to congressional action. By far
the greater number of these proposals have sought to restrict the availability of abortions.
A few measures have been introduced seeking to better secure the right. The Freedom of
Choice Act (FOCA), which was introduced and debated in both the 102nd and 103rd
Congresses, was never enacted. FOCA was an attempt to codify Roe v. Wade legislatively.
The Freedom of Access to Clinic Entrances Act of 1994, P.L. 103-259 (18 U.S.C. 248),
made it a federal crime to use force, or the threat of force, to intimidate abortion clinic
workers or women seeking abortions.
Proponents of more restrictive abortion legislation have employed a variety of
legislative initiatives to achieve this end, with varying degrees of success. Initially,
legislators focused their efforts on the passage of a constitutional amendment which would
overrule the Supreme Court’s decision in Roe. This course, however, proved to be
Since 1973, a series of constitutional amendments have been introduced in each
Congress in an attempt to overrule the Court’s decision in Roe v. Wade. To date, no
constitutional amendment has been passed in either the House or the Senate; indeed for
several years, proponents had difficulty getting the measures reported out of committee.
Interest in the constitutional approach peaked in the 94th Congress when nearly 80
amendments were introduced. By the 98th Congress, the number had significantly declined.
It was during this time that the Senate brought to the floor the only constitutional amendment
on abortion that has ever been debated and voted on in either House.
During the 98th Congress, S.J.Res. 3 was introduced. Subcommittee hearings were held,
and the full Judiciary Committee voted (9-9) to send the amendment to the Senate floor
without recommendation. As reported, S.J.Res. 3 included a subcommittee amendment
eliminating the enforcement language and declared simply, “A right to abortion is not
secured by this Constitution.” By adopting this proposal, the subcommittee established its
intent to remove federal institutions from the policymaking process with respect to abortion
and reinstate state authorities as the ultimate decisionmakers.
S.J.Res. 3 was considered in the Senate on June 27 and 28, 1983. The amendment
required a two-thirds vote to pass the Senate since super-majorities of both Houses of
Congress must approve a constitutional amendment before it can be submitted to the states.
On June 28, 1983, S.J.Res. 3 was defeated (50-49), not having obtained the two-thirds vote
necessary for a constitutional amendment. [For a review of the full debate on S.J.Res. 3, see
129 Congressional Record S9076, et seq., daily ed., June 27, 1983; 129 Congressional
Record S9265, et seq., daily ed., June 28, 1983.]
Bills that Seek to Prohibit the Right to Abortion by Statute. As an alternative
to a constitutional amendment to prohibit or limit the practice of abortion, opponents of
abortion have introduced a variety of bills designed to accomplish the same objective without
resorting to the complex process of amending the Constitution. Authority for such action is
said to emanate from Section 5 of the Fourteenth Amendment, which empowers the
Congress to enforce the due process and equal protection guarantees of the amendment “by
appropriate legislation.” One such bill, S. 158, introduced during the 97th Congress, would
have declared as a congressional finding of fact that human life begins at conception, and
would, it was contended by its sponsors, allow states to enact laws protecting human life,
including fetuses. Hearings on the bill were marked by controversy over the constitutionality
of the declaration that human life begins at conception, which contradicted the Supreme
Court’s specific holding in Roe v. Wade, and over the withdrawal of lower federal court
jurisdiction over suits challenging state laws enacted pursuant to federal legislation. A
modified version of S. 158 was approved in subcommittee, but that bill, S. 1741, had no
further action in the 97th Congress.
Hyde-Type Amendments to Appropriation Bills. As an alternative to these
unsuccessful attempts to prohibit abortion outright, opponents of abortion sought to ban the
use of federal monies to pay for the performance of abortions. They focused their efforts
primarily on the Medicaid program since the vast majority of federally funded abortions were
reimbursed under Medicaid.
The Medicaid program was established in 1965 to fund medical care for indigent
persons through a federal-state cost-sharing arrangement; however, abortions were not
initially covered under the program. During the Nixon Administration, the Department of
Health, Education and Welfare (HEW) decided to reimburse states for the funds used to
provide abortions to poor women. This policy decision was influenced by the Supreme
Court’s decision in Roe v. Wade which, in addition to decriminalizing abortion, was seen as
legitimizing the status of abortion as a medical procedure for the purposes of the Medicaid
Since Roe v. Wade, Congress has attached abortion funding restrictions to numerous
appropriations bills. Although the Foreign Assistance Act of 1973, P.L. 93-189, was the first
such enactment, the greatest focus has been on restricting Medicaid abortions under the
annual appropriations for the Department of Health, Education, and Welfare (HEW) (now
the Department of Health and Human Services (HHS)).
The first of a series of restrictions, popularly referred to as the “Hyde Amendments,”
was attached to the FY1977 Departments of Labor and Health, Education, and Welfare
Appropriation Act, P.L. 94-439. As originally offered by Representative Hyde, the proposal
would have prohibited the funding of all abortions. A compromise amendment offered by
Representative Conte was eventually agreed to, providing that “None of the funds contained
in this act shall be used to perform abortions except where the life of the mother would be
endangered if the fetus were carried to term.”
In subsequent years, Hyde Amendments were sometimes reworded to include
exceptions for rape and incest or long-lasting physical health damage to the mother.
However, from the 97th Congress until recently the language has been identical to the original
enactment, allowing only an exception to preserve the life of the mother. In 1993, during the
first year of the Clinton Administration, coverage under the Hyde Amendment was expanded
to again include cases of rape and incest. Efforts to restore the original language (providing
for only the life of the woman exception) failed in the 104th Congress.
The Hyde Amendment process has not been limited to the Labor/HHS appropriation.
Beginning with P.L. 95-457, the Department of Defense Appropriation Acts have contained
Hyde-type abortion limitations. This recurring prohibition was eventually codified and made
permanent by P.L. 98-525, the Department of Defense Authorization Act of 1984.
Beginning with P.L. 96-93, the District of Columbia (D.C.) Appropriations Acts have
contained restrictive abortion provisions. In recent years there have been efforts to expand
the prohibitions to District funds as well as the federal funds appropriated. The passage of
P.L. 100-462, the FY1989 D.C. Appropriations Act, marked the first successful attempt to
extend abortion restrictions to the use of District funds. In 1993 and 1994, lawmakers
approved a prohibition that applied only to federal monies. The 104th Congress approved a
ban on all government funding of abortion (federal and D.C.), except in cases of rape, incest
or danger to a woman’s life. This ban has continued in recent appropriations measures for
In 1983, the Hyde Amendment process was extended to the Department of the Treasury
and Postal Service Appropriations Act, prohibiting the use of Federal Employee Health
Benefits to pay for abortions except when the life of the woman was in danger. Prior to this,
it had been reported that in 1980, for instance, federal government health insurance plans
paid an estimated $9 million for abortions, both therapeutic and non-therapeutic. The
following year the Office of Personnel Management (OPM) attempted through administrative
action to eliminate non-life- saving abortion coverage. This action was challenged by federal
employee unions, and the U.S. district court held that OPM acted outside the scope of its
authority, and that absent a specific congressional statutory directive, there was no basis for
OPM’s decision. American Federation of Government Employees v. AFL-CIO, 525 F.Supp.
250 (1981). It was this background that led to the 1983 congressional action to include the
prohibition on coverage for abortion in federal employee health insurance plans except when
the life of the woman was in danger. This prohibition was removed in 1993. However, the
104th Congress passed language prohibiting the use of federal money for abortion under the
Federal Employee Health Benefit Program except in cases where the life of the mother would
be endangered or in cases of rape or incest.
Finally, under Department of Justice appropriations, funding of abortions in prisons is
prohibited except where the life of the mother is endangered, or in cases of rape. First
enacted as part of the FY1987 Continuing Resolution, P.L. 99-591, this provision has been
reenacted as part of the annual spending bill in each subsequent fiscal year, but the language
has been modified in recent years.
In addition to the temporary funding limitations contained in appropriation bills,
abortion restrictions of a more permanent nature have been enacted in a variety of contexts
since 1970. For example, the Family Planning Services and Population Research Act of
1970, P.L. 91-572 (42 U.S.C. 300a-6), bars the use of funds for programs in which abortion
is a method of family planning.
The Legal Services Corporation Act of 1974, P.L. 93-355 (42 U.S.C. 2996f(b)(8)),
prohibits lawyers in federally funded legal aid programs from providing legal assistance for
procuring non-therapeutic abortions and prohibits legal aid in proceedings to compel an
individual or an institution to perform an abortion, assist in an abortion, or provide facilities
for an abortion.
The Pregnancy Discrimination Act, P.L. 95-555 (42 U.S.C. 2000e(k)), provides that
employers are not required to pay health insurance benefits for abortion except to save the
life of the mother, but does not preclude employers from providing abortion benefits if they
choose to do so.
The Civil Rights Restoration Act of 1988, P.L. 100-259 (20 U.S.C. 1688), states that
nothing in the measure either prohibits or requires any person or entity from providing or
paying for services related to abortion.
The Civil Rights Commission Amendments Act of 1994, P.L. 103-419 (42 U.S.C.
1975a(f)), prohibits the Commission from studying or collecting information about U.S. laws
and policies concerning abortion.
Legislation in the 108th Congress
H.R. 1997, the Unborn Victims of Violence Act of 2004 or Laci and Conner’s Law, was
signed by the President on April 1, 2004 (P.L. 108-212).4 The act establishes a separate
offense for harming or killing an “unborn child” in utero during the commission of a violent
crime. Punishment for the separate offense is the same as if the offense had been committed
against the pregnant woman. In addition, an offense does not require proof that the person
engaging in the misconduct had knowledge or should have had knowledge that the victim
of the underlying offense was pregnant, or that the defendant intended to cause the death of,
or bodily injury to, the child in utero. The phrase “child in utero” is defined by the act to
mean “a member of the species homo sapiens, at any stage of development, who is carried
in the womb.”
H.R. 1755, the Child Custody Protection Act, was introduced by Representative Ileana
Ros-Lehtinen on April 10, 2003. S. 851, the Senate version of the act, was introduced by
Senator John E. Ensign on the same day. The act would have prohibited the knowing
transport of a minor across state lines for the purpose of obtaining an abortion. The bill
sought to prevent the abridgement of parental consent and notification requirements in a
minor’s residing state. Violators of the act would have been subject to a fine under Title 18
See also CRS Report RS21550, The Unborn Victims of Violence Act, by Jon O. Shimabukuro.
of the United States Code or imprisonment for not more than one year, or both. The act’s
prohibition would not have applied to abortions that were necessary to save the life of the
minor because her life was endangered by physical disorder, physical injury, or physical
S. 1397, the Abortion Non-Discrimination Act of 2003, was introduced by Senator Judd
Gregg on July 14, 2003. Under the bill, various health care entities, including hospitals and
health maintenance organizations, that refused to provide coverage for abortion or refused
to pay for induced abortions could not have been subject to adverse action by the federal
government or state or local governments that receive federal financial assistance. A similar
version of the act was passed by the House during the 107th Congress, but was not considered
by the Senate. For additional information on the Abortion Non-Discrimination Act, see CRS
Report RS21428, The History and Effect of Abortion Conscience Clause Laws, by Jody
On December 8, 2004, the President signed H.R. 4818, the Consolidated Appropriations
Act, 2005 (P.L. 108-447). The act encompassed four appropriations measures with abortion
or family planning provisions: the Departments of Commerce, Justice, and State, the
Judiciary, and Related Agencies Appropriations Act, 2005 (Division B); the Foreign
Operations, Export Financing, and Related Programs Appropriations Act, 2005 (Division D);
the Department of Labor, Health and Human Services, and Education, and Related Agencies
Appropriations Act, 2005 (Division F); and the Transportation, Treasury, Independent
Agencies, and General Government Appropriations Act, 2005 (Division H). In general, H.R.
4818 retained many of the abortion funding restrictions that have appeared in past
appropriations measures. For example, under Division B, appropriated funds could be used
to pay for an abortion only where the life of the mother would be endangered if the fetus was
carried to term or in the case of rape. Similarly, Division F prohibited the use of funds,
including funds derived from any trust funds that received appropriations, for abortions
except in cases of rape or incest, or where a woman who suffers from a physical disorder,
injury, or illness would have her life jeopardized if an abortion was not performed.
Section 508(d) of Division F provided one notable change to the annual appropriations.
Section 508(d) prohibited the availability of appropriated funds to a federal agency or
program or to a state or local government if such agency, program, or government
“subject[ed] any institutional or individual health care entity to discrimination on the basis
that the health care entity [did] not provide, pay for, provide coverage of, or refer for
abortions.” This prohibition resembled similarly restrictive language in the proposed
Abortion Non-Discrimination Act of 2003. A discussion of that measure is included in the
Legislation in the 108th Congress section of this report.
H.R. 4850, the FY2005 appropriations measure for the District of Columbia, also
included language that restricted the availability of funds to pay for abortions (P.L. 108-335).
The measure prohibited the use of appropriated and local funds to pay for abortions except
where the life of the mother would be endangered if the fetus was carried to term or where
the pregnancy was the result of an act of rape or incest.
Legislation in the 109th Congress
Legislation that would prohibit the knowing transport of a minor across state lines for
the purpose of obtaining an abortion has again been introduced. S. 403, the Child Custody
Protection Act, was introduced by Senator John E. Ensign on February 16, 2005.5 The bill
seeks to prevent the abridgement of parental consent and notification requirements in a
minor’s residing state. Violators of the act would be subject to a fine under Title 18 of the
United States Code or imprisonment for not more than one year, or both. The act’s
prohibition would not apply to abortions that are necessary to save the life of the minor
because her life is endangered by a physical disorder, physical injury, or physical illness.
H.R. 748, the Child Interstate Abortion Notification Act, incorporates the language of
the Child Custody Protection Act, but also imposes a 24-hour parental notification
requirement for abortions occurring outside a minor’s state of residence. H.R. 748 was
passed by the House on April 27, 2005 by a vote of 270-157. The measure, introduced by
Representative Ileana Ros-Lehtinen on February 10, 2005, would require a physician who
performs or induces an abortion on a minor who is a resident of a state other than the state
in which the abortion is performed to provide at least 24 hours written notice to a parent of
the minor before performing the abortion. A parent who suffers harm from a violation of the
notice requirement could obtain appropriate relief in a civil action. The notice requirement
would not apply in certain specified situations, including those where the abortion is
necessary to save the life of the minor because her life is endangered by a physical disorder,
physical injury, or physical illness.
Legislation that would require an abortion provider or his agent to provide specified
information to a pregnant woman prior to the performance of an abortion has also been
introduced. S. 51, the Unborn Child Pain Awareness Act of 2005, was introduced by Senator
Sam Brownback on January 24, 2005. H.R. 356, the House version of the act, was
introduced by Representative Christopher H. Smith on January 25, 2005. Under the measure,
an abortion provider or his agent would be required, prior to the performance of an abortion,
to make a prescribed oral statement to the pregnant woman, provide an “Unborn Child Pain
Awareness Brochure” to the woman, and obtain the woman’s signature on an “Unborn Child
Pain Awareness Decision Form.”
The act’s requirements would apply only when an abortion is being performed on a socalled “pain-capable unborn child.” The term “pain-capable unborn child” is defined by the
act to mean “an unborn child who has reached a probable stage of development of 20 weeks
after fertilization.” The requirements would not apply during a medical emergency when
delay of the procedure would impose “a serious risk of causing grave and irreversible
physical health damage entailing substantial impairment of a major bodily function.”6
Penalties for knowing violations of the act would include suspension or revocation of a
medical license, or civil penalties.
Additional versions of the Child Custody Protection Act have also been introduced as S. 396 and
S. 8 in the 109th Congress. The language in all three measures is identical.
S. 51, 109th Cong. § 3 (2005).
The FY2006 appropriations measures retain longstanding restrictions on the use of
federal funds for abortion and abortion-related services. On November 14, 2005, the
President signed H.R. 3057, the FY2006 Foreign Operations appropriations measure (P.L.
109-102). The bill provides that none of the appropriated funds may be made available to
an organization or program that supports or participates in the management of a program of
coercive abortion or involuntary sterilization. In addition, appropriated funds are 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 are not available to lobby for
or against abortion. To reduce reliance on abortion in developing nations, funds are available
only for voluntary family planning projects which offer a broad range of family planning
methods and services. Such voluntary family planning projects must meet specified
Contributions to the UNFPA are conditioned on the entity not funding abortions. In
addition, amounts appropriated to the UNFPA under the measure must be kept in an account
that is separate from the UNFPA’s other accounts. The UNFPA must not commingle funds
provided under the measure with the entity’s other sums.
On November 22, 2005, the President signed H.R. 2862, the FY2006 appropriations
measure for the Departments of Commerce, Justice, and State (P.L. 109-108). The bill
prohibits the use of funds to pay for abortions in the federal prison system except in cases
where the life of the mother would be endangered if the fetus were carried to term or in the
case of rape.
Under H.R. 3058, the FY2006 appropriations measure for the Departments of
Transportation, Treasury, and Housing and Urban Development, the Judiciary, the District
of Columbia, and independent agencies, appropriated funds may not be used to pay for
abortions or for any administrative expenses related to a health plan in the federal employees
health benefits program that provides benefits or coverage for abortions. H.R. 3058 also
prohibits the use of appropriated and local funds to pay for abortions in the District of
Columbia except where the life of the mother would be endangered if the fetus was carried
to term or where the pregnancy is the result of an act of rape or incest. H.R. 3058 was signed
by the President on November 30, 2005 (P.L. 109-115).
H.R. 3010, the FY2006 appropriations measure for the Departments of Labor, Health
and Human Services, and Education, and Related Agencies was signed by the President on
December 30, 2005 (P.L. 109-149). H.R. 3010 prohibits the use of funds, including funds
derived from any trust fund that receives appropriations, for abortions except in cases of rape
or incest, or where a woman who suffers from a physical disorder, injury, or illness would
have her life jeopardized if an abortion was not performed. H.R. 3010 includes the
nondiscrimination language that first appeared in the FY2005 appropriations provisions for
the Department of Health and Human Services. This language prohibits the availability of
appropriated funds to a federal agency or program or to a state or local government if such
agency, program, or government subjects a health care entity to discrimination on the basis
that the entity does not provide, pay for, provide coverage of, or refer for abortions.