Abortion: Judicial and Legislative Control

ABORTION:

J U 3 I C I A L AND L E G I S L A T I V E C O N T R O L

I S S U E B R I E F NUMEER I B 7 4 0 1 9

AUTHOR:

L e w i s , K a r e n J.

American Law Division

R o s e n b e r g , Morton

A m e r i c a n Law D i v i s i o n

P o r t e r , A l l i s o n I.

American Law Division

T H E L I B R A R Y OF C O N G R E S S

CONGRESSIONAL RESEARCH SERVICE

MAJOR I S S U E S S Y S T E M

DATE ORIGINATED

DATE U P D A T E D

F O R A D D I T I O N A L I N F O R M A T I O N C A L L 287-5700

1013

CRS- 1

ISSUE DEFINITION

In 1973 the U.S. Supreme Court held that the Constitution protects a

woman's decision whether or not to terminate her pregnancy, Roe v. Wade, 4 1 0

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, 4 1 0 U.S. 179.

But

rather than settling the issue, the Court's rwlings have kindled heated

debate and precipitated a variety of governmental actions a t the national,

State and local levels designed either to nullify the rulings or hinder their

effectuation.

These governmental regalations have, in turn, spawned further

litigation in which resulting judicial refinements in the l a w have been no

more successful in dampening the controversy.

Thus the 97th Congress

promises to again be a forum for proposed legislation and constitutional

amendments aimed a t limiting or prohibiting the practice of abortion and 1981

will see Court dockets, including that of the Supreme Court, filled with a n

ample share of challenges t o 5 S t a t e and local actions.

BACKGROUND AND POLICY ANALYSIS

The background section

categories, as follows:

of

this

issue

brief

is

organized

under

I.

JUDICIAL HISTORY

A.

Development and Status of the Law Prior to 1973

B.

The Supreme Court's 1973 Abortion Rulings

11.

U.S. SUPREME COURT DECISIONS SUBSEQUENT TO "ROE" AND "DOE"

Informed Consent, Spousal Consent, Parental Consent, and

Reporting Requirements

B.

Parental Notice

C.

Advertising of Abortion Services

D. Abortions by Non-Physicians

E.

Abortions in Public and Private Hospitals

F. The Definition of Viability

A.

111.

T H E PUBLIC FUNDING OF ABORTIONS

Restrictions on Public Funding of

The 1977 Trilogy

Nontherapeutic or Elective Abortions

B.

The Public Funding of Therapeutic of Medically Necessary

Abortions

The Supreme Court's Decisions in McRae

and Zbaraz

--

A.

--

IV.

V.

UNRESOLVED ISSUES RELATING TO ABORTION

LEGISLATION

A.

Constitutional Amendments

B.

Human Life Statute

C.

Hyde-Type Amendments to Appropriations Bills

D.

Hyde-Type Amendments to Substantive Bills

E.

Limitation on Federal Court Jurisdiction

F.

Early Developments in the 97th Congress

G. Public Laws

five

CRS- 2

I.

JUDICIAL HISTORY

A.

Development and Status of the Law Prior to 1973

The moral and legal issues raised by the practice of abortion has tested

the philosophers, theologians, and statesmen of every age since the dawn of

civilization. The Stoics' belief that abortion should be allowed up to the

moment of birth was vigorously opposed by the Pythogoreans who believed that

the soul was infused into the body at conception and that to abort a fetus

would be to commit murder.

Early Roman law was silent as to abortion; and

abortion and infanticide was common in Rome, especially among the uppper

classes.

Opposition by scholars and the growing influence.of the Christian

religion brought about the first prohibition of abortion during the reign of

Severus (193-211 A.D.).

These laws made abortion a high criminal offense and

to banishment.

During the

subjected a woman who violated the provisions

European Middle Ages major church theologians differentiated between a n

embryo informatus (prior to endowment of a soul) and a n embryo formatus

The distinction was used to

assess

(after endowment with a soul).

punishments for abortion, fines being levied if abortion occurred before

animation but death ordered if it was aborted at any time after.

The English common law adopted the doctrine of "quickening" i-e., the

first movement of the fetus in the mother's womb, to pinpoint the time when

abortion could incur sanctions.

Generally, a t common law, abortion performed

before quickening was not an indictable offense.

There is dispute whether

The predominant view i s that

abortion of a quick fetus was a felony.

abortion of a quick fetus was, at most, a minor offense.

In the United

States, the law in all but a few States until the mid-19th

Century adopted

the pre-existing English common law.

Thus, no indictment would

occur for

aborting a fetus for a Consenting female prior to quickening. However, there

could be an indictment afterward.

Also, as was the case under the common

law, a woman herself was not indictable for submitting to an abortion, or for

aborting herself, before quickening.

By the time of the Civil War, however, an influential antiabortion

movement began to affect legislation by inducing States to add to or revise

t.heir statutes in order to prohibit abortion a t all stages of gestation.

By

1910 every State had antiabortion

laws, except Kentucky whose courts

judicially declared abortions to illegal.

In 1967, 49 of the States and the

District of Columbia classified the crime of abortion as a felony.

The

concept of quickening was no longer used to determine criminal liability but

was retained in some States to set punishment.

Non-therapeutic

abortions

were essentially unlawful.

The States varied

in their exceptions for

therapeutic abortions.

Forty-two States permitted abortions

only

if

necessary to save the life of the mother.

Other States allowed abortion to

save a woman from "serious and permanent bodily injuryw or her

"life and

health."

Three States allowed abortions that were not "unlawfully performed"

or that were not "without lawful justification", leaving interpretation of

those standards to the courts.

This, however, represented the highwater mark in restrictive abortion law?

in the United States, for 1967 saw the first victory of a n abortion reform

movement with the passage of liberalizing

legislation in Colorado.

The

CRS- 3

legislation was based upon the Model Penal Code.

The movement started in the

early 1550s and centered its efforts on a proposed criminal abortion statute

developed by the American Law Institure that wculd allow abortions when

childbirth posed grave danger to the physical or mental health

of a woman,

when there was high likelihood of fetal abnormality, or when pregnancy

resulted from rate or incest.

Between 1967 and the Supreme Court's 1973 decisions in Roc and Doe,

approximately one-third of the States had adopted, either in whole or in

part, the Model Penal Code's provisions allowing abortions in instances other

Also, by the end of 1970,

than where only the mother's life was in danger.

four States (Alaska, Hawaii, New York, and Washington) had repealed criminal

penalties for abortions performed in early pregnancy by a licensed physician,

subject to stated procedural and health requirements.

The first U.S. Supreme Court decision dealing with abortion was rendered

62.

In Vuitch, t h e ' Court denied a

in 1971. U.S. v. Vuitch, 402 U. S.

vagueness challenge to the District of Columbia abortion statute.

The net

effect of the Vuitch decision was to expand the availability of abortions

under the D.C.

law's provision allowing abortions where "necessary for the

health."

preservation of the mother's

...

B.

The Supreme Court's 1973 Abortion Rulings

Eetween 1968 and 1972 the constitutionability of r e s t r i c t ~ v e abortion

statutes of many States were challenged on the grounds of vagueness,

violation of the fundamental right cf privacy, and denial of equal protection

under these laws.

These challenges met wlth mixed

success in the lower

Courts.

However, on Jan. 22, 1973, the Supreme Court issued its rulings in

In those cases the Court found that Texas and

Roe v. W a d e and Doe v. Bolton.

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

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 a t accredited hospitals and only after approval by a hospital

committee and two consulting physicians.

The Court's decisions were delivered by Mr. Justice Blackmun for himself

anC six other Justices.

Justices White and Rehnquist dissented.

The Court

ruled that States may not categorically proscribe aaortions 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

The Court noted that its prior

whether to carry a pregnancy to term.

a

guarantee of personal

decisions had "found at least the roots of

privacy" in various amendments to the Constitution or their penumbras

(i.e.,

protected offshoots) and characterized the right to privacy as grounded in

"the Fourteenth Amendment's concept of personal liberty and restrictions upon

Reg'arding the

State action."

Roe v. Wade, 410 U. S. 113, 152, 153 (1973).

scope of that right, the Court stated that it included "only persgnal rights

that can be deemed 'fundamental' or

'implicit in the concept of ordered

l i b e r t y n v and "bears some extension to activities related to marriage,

procreation, contraception, family relationship, and child rearing and

...

CRS- 4

IB74019

UPDATE-lO/l3/8%

education." Id. at 152-153.

Such a right, the Court concluded, "is brcad

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. a t

148-150, and the existence of a rational connection between these two

interests and the State's antiabortion 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 o r 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:

W ith respect to the State's important and legitimate

interest in the health of the mother, the "compellingw 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

akortion, and then only to protect this interest. Id. a t 163-164.

The "compellingq1 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 a n abortion except

when necessary, in appropriate medical $udgment, for the preservation of the

life or health of the mother.

=Id. at 163-164.

The Court defined viability

as the point at which the fetus is "potentially able to live outside the

Id. a t 160.

The Court

mother's womb, albeit with artificial aid."

summarized its holding as follows:

(a) For the stage prior to approximately the end of

the first trimester of pregnancy , the abortion decision

and its effectuation must be left to the medical judgment

of the pregnant woman's attending physician.

(b) For the stage subsequent to approximately the end

of the first trimester, the State, in promoting its

interest in the health of the mother, may, if it chooses,

regulate the abortion procedure in ways that are reasonably

related to maternal health.

(c) For the stage subsequent to viability, the State

in promoting its interest in the potentiality of human

life may, if it chooses, regulate, and even proscribe,

abortion except where it is necessary, in appropriate

medical judgment, for the preservation of the life or

health of the mother.

410 U.S. a t 164-165

In Doe v. Bolton, 410 U.S. 179 (1973), the Court reiterated its holding in

Roe v. Wade that the basic decision of when an abortion is prcper rests with

the pregnant mother and her physician, but extended Roe by warning that just

CRS- 5

IB74019

UPDATE-10/13/81

as States may not prevent abortion by making the performance a crime, States

m3.y not make abortions unreasonably difficult to obtain by prescribing

Elaborate procedural barriers.

In E , therefore, 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

Id. at 196-199.

The Court

physicians concur in the abortion decision.

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. a t 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. a t 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 i n the Fourteenth Amendment, does not include the unborn."

~ d .a t 158.

The Court did not, however, resolve the question of when life actually

begins.

While noting the divergence of thinking on this issue, i t , instead,

articulated the legal concept of "viability," which is defined a s the point

at which the fetus is potentially able to live outside the womb, although the

fetus may require artificial aid.

Id. at 160.

The Supreme Court's decisions in Roe v. Wade and Doe v.

Bolton did not

address a number of important abortion-related issues which have subsequently

been raised.by State actions seeking to restrict the scope of the Court's

rulings.

These include the issues of informed Consent, spcusal COnS2nt,

parental consent, and reporting requirements.

In addition, Roe and Doe never

resolved the question of what, if any, type of abortion procedures may be

required or prohibited by statute.

Moreover, there remained the matter of

whether fetal protection statutes were constitutional.

Unanswered

by the

1973 cases as well was the constitutionality of three oth2r types of statutes

affecting access to abortion: (1) those proscribing the advertising regarding

the availability of an abortion or abortion-related

services in another

and

(3) those

State; (2) those prohibiting abortions by non-physicians;

allowing private hospitals to refuse to perform abortions.

In addition,

questions

have

arisen

with

respect

to

the

since Roe and Doe,

constitutionality of: (1) the experimental use of fetuses; (2) waiting period

rights;

(4) the right of a

requirements; (3) termination of parental

physician

to refuse to participate

in a n abortion; and

(5)

notice

requirements.

Finally, the entire matter

of the Government funding of

abortions was not dealt with in Roe and Doe, since public funding was not

possible at that time.

11. U.S.

SUPREME COURT DECISIONS SUBSEQUENT TO "ROE" AND "DOE"

A.

Informed

Requirements

Consent,

Spousal

Consent,

Parental

Conseat,

and

Reporting

In Planned Parenthood v. Danforth, 428 U.S. 52 (19761, the Court held that

informed consent statutes, which require a doctor to obtain the written

CRS- 6

con.sent of a woman after informing her of the dangers of abortion ar,d

possible alternatives, are constitutional if the requirements are related

ts

maternal 3ealth and are not overbearing. 428 U.S. 52, 65-66. The fact that

the informed consent laws mast define their requirements very

narrowly

in

order to be constitutional was later confirmed by the Supreme Court in 1979

when it summarily affirmed an Eighth Circuit Court of Appeals decision

(8th Cir.

holding to that effect in Freiman v. Ashcroft, 584 F.2d 247, 251

1978) aff'd mem., 99 S.Ct. 1416 (1979).

The requirements of an informed

consent statute must also be narrDwly drawn so as not to unduly interfere

with the physician-patient relationship, although the type of information

required to be given to a woman of necessity may vary according to the

trimester of her pregnancy.

In addition to informed consent, the Danforth decision dealt with

the

issue of spousal consent. The Supreme Court found that spousal consent

statement by

the father of the fetus

statutes, which require a written

affirming his consent to the abortion, are unconstitutional if the statutes

allow the husband to unilaterally prohibit the abortion i n the first

trimester.

428 U.S. 52, 69. It should be noted that on the same day that

the Supreme Court decided Danforth, it also summarily affirmed the lower

court decision in Coe v. Gerstein, 376 F. Supp. 695 (S.D. Fla. 1974), aff'd,

a spousal consent law

4 2 8 U.So 9 0 1 (1976), which held unsonstitutional

regardless of the stage of the woman's pregnancy.

With respect to parental Consent statutes, the Supreme Court held in

Danfcrth that those statutes that allow a parent or guardian to absolutely

prohibit an abortion to be perforined on a minor child were unconstitutional.

Subsequently, in Belotti v. Baird, 443. U.S. 6 2 2 (1979), the Court ruled that

while a State may require a minor to obtain parental consent, the State must

also provide an alternative procedure to procure authorization if parental

consent is denied or the minor does not Want to seek it.

From the reasoning

used in Belotti, it appears that the Court felt a minor is entitled to some

proceeding which allows her to prove her ability to make a n informed decision

independent of her parents, or that even if she is incapable of making

the

decision, at least showing that the abortion wocld be in her best interests.

The Court in Danforth also ruled that reporting requirements in statutes

requiring doctors and health facilities to provide information to States

regarding each abortion performed, are C o n ~ t i t ~ t i o n a l .The Court specified,

however, that these reporting requirements relate to maternal health, remain

confidential, and may not be overaearing.

428 U.S. 52, 80-81.

Another aspect in the Danforth case related to the constitutionality of

abortion procedure statutes that prohibit the use of saline amniocentesis to

obtain an abortion.

The Court held such statutes unconstitutional because it

believed that a procedure as widely accepted in medical circles as that

requiring the use of saline amniocentesis could not be prohibited.

Moreover,

the State statute in question was held to be inconsistent

in

its

proscription, since it allowed other more dangerous procedures

while

prohibiting some that were safer, more effective, and rriore widely accepted by

the medical profession.

Finally, another significant ruling made by the Court in Danforth was that

fetal protection statutes were generally overbroad and unconstitutional if

they pertained to pre-viable

fetuses.

Such statutes require a doctor

performing an abortion to use available means and medical skills to save the

life of the fetus.

In a subsequent decision, Colautti v. Franklin, 439 U.S.

379 (1979), the Supreme Court held that such fetal protection statutes could

CRS- 7

IB74019

UPDATE-10/13/81

only apply to viable fetuses and that the statute must be precise in setting

forth the standard for determining viability.

In addition, the Court in

Colautti stressed that in order to meet the constitutional test of sufficient

certainty, fetal protection laws had to define whether a doctor's paramount

duty was to the patient or whether the physician had to balance the possible

danger to the patient against the increased odds of fetal survival.

4 3 9 U.S.

S 379, 397-401.

B.

Parental Notice

The Supreme Court did attempt to provide further clarification of the

parental consent and notification issues in its decision in Bellotti

Baird, 443 U.S.

622

(1979).

There the Court held unconstitutional a

Massachusetts statute that required parental consultation or notification

in

every instance without affording the pregnant minor an opportunity to receive

an independent judicial determination that she was mature enough to consent

or that the abortion would be i n her best interests. The Court also found

unconstitutional a statutory provision that permitted judicial authorization

for an abortion to be withheld from a minor who is found by the court to be

mature and fully conpetent to make the decision whether o r not to terminate

her pregnancy independently. However, in a n effort to provide some futura

guidelines, the court, in dicta, suggested that if a State wished

to use

parental notification, it must afford the minor

the option of proceeding

directly to court, without parental notification, where she must

show that

she is a mature minor or that, if she is found not able to make the decision

independently, the desired abortion is in her best interests.

Four of the

eight justices objected to this suggestion on the ground that i t was an

advisory opinion.

On Mar. 2 3 , 1981, the Court upheld a Utah State law making i t a crime for

doctors to perform a n abortion on a n unemancipated, dependent minor without

notifying her parents.

in H.L. v. Matheson, 79-5903, a 6-to-3 decision, the

Court examined the narrow question of the facial C O n S t i t U t i ~ n a l i t y of a

statute requiring a physician to give notice to parents, "if possible," prior

the girl is

to performing a n abortion on their minor daughter, (a) when

living with and dependent upon her parents, (b) when she is not emancipated

by marriage or otherwise, and (c) when she has made no claim or showing as to

her maturity or a s to her relationship with her parents.

The Supreme Court

cited the interest in preserving family integrity and protecting adolescents

in allowing States to require that parents be informed that their daughter is

seeking an abortion, and emphasized that the statUte in question did not give

a veto power over the minor's abortion decision.

Chief Justice Burger

reasoned that the Utah law, "as applied to immature and dependent minors

serves the important considerations of family integrity and protecting

adolescent^.^

In addition, parental notice provides

an opportunity for

parents to supply essential medical and other important information to a

physician.

The medical, emotional, and psychological consequences of an

abortion are serious and can be lasting; this is particulary

so when the

patient is immature." The Court rejected the minor woman's contention that

abortion was being singled out for special treatment in Contrast to other

surgical procedures, like childbirth, which do not require parental notice.

The Chief Justice responded that the situations differed and "if the pregnant

girl elects to carry her child to term, the medical decisions to be made

perhaps none

of the potentially grave emotional and

entail few

psychological consequences of the decision ro abort."

Thus, the Court found

the Utah law to be constitutional, since if served important State interests,

was narrowly drawn to prot-ect only those interests, and did not in any way

...

"...

--

--

CRS- 8

IB74019

UPDATE-10/13/81

violate any of the guarantees of the Constitution.

Still

directly

unanswered, however, is the question whether

parental notification can b g

required in the case of a mature, emancipated minor.

The implication of the

be constitutionally

Bellotti and Eatheson rulings is that such a law would

suspect.

C. Advertisement of Abortion Services

The Supreme Court held in Bigelow v. Virginia, 421 U.S. 809 (1975), that a

State may not proscribe advertising regarding the availability of an abortion

or abortion-related services in another State.

The court found that the

statute i n question was unconstitutional because the State of Virginia, where

the advertisement appeared, had only a minimal interest in the health and

medical practices of New York, the State in which the legal abortion services

were located.

D. Abortions by Non-Physicians

In Connecticut v. Menillo, 429 U.S. 9 (1975), the Supreme Court ruled that

State statutes similar to the Texas law challenged in Roe were constitutional

to the extent that the statutes forbid non-physicians

from performing

abortions.

The Roe decision made it clear that a State could not interfere

with a woman's decision, made in consultation with and upon the advice of her

doctor, to have an abortion in the first trimester of h.er pregnancy.

The

Menillo Court found that ?re-=

restrictive abortion laws were still

enforceable against non-physicians.

423 U.S. 9 , 11.

E.

Abortions in Public and Private Hospitals

In Poelker v. Doe, 4 3 2 U.S. 519 (1977) (per curiam), the Supreme Court

held that the policy of the City of St. Louis in refusing to allow the

performance of nontherapeutic abortions in its public hospitals, and of

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. In Poelksr, the Court dealt

to elect to provide publicly financed

with the right of a municipality

hospital services for childbirth without providing corresponding services for

non-therapeutic abortions.

The Court approved this practice.

No cases have been reported challenging State laws which allow doctors to

refuse to participate in abortion procedures.

This may be explained by

the

fact that a woman can always seek out another physician who could perform an

abortion, should a doctor initially refuse because of religious or other

beliefs.

To date the Supreme Court has not rendered a decision regarding the

COnStitUtiOnality of State statutes that allow private hospitals to refuse to

participate in abortions; however, Federal district Courts have ruled on this

Supp. 1156

(D.

issue.

See, e.g., Jones v. Eastern Me. Med. Center, 448 F.

Me. 1978), where the court upheld such a law.

F,

The Definition of Viability

CRS- 9

IB74019

UPDATZ-10/13/81

The Supreme Court's articulation of the concept of viability has required

further elaboration, particularly with regard to the critical question of who

defines a t what point a fetus has reached viability.

1n ~ o ethe court

defined viability as the point a t which the fetus is "potentially able to

at

live outside the mother's Womb, albeit with artificial aid."

410 U.S.

160. Such potentiality, however, must be for "meaningful life" and this

cannot encompass simply momentary survival.

4 1 0 U.S. at 163. The Court also

noted that while viability is usually placed at about 2 8 weeks, it can occur

earlier and essentially left the point flexible for anticipateii advances in

medical skill. Finally, Roe stressed the central role of the pregnant

woman's doctor, emphasizing that "the abortion decision i n all its aspects is

inherently, and primarily, a medical decision." 410 U.S.

at 160.

Similar

themes were stressed in =Planned Parenthood of Central Missouri v. Danforth=,

4 2 8 U.S. 5 2 (1976), i n which a Missouri law, which defined viability as "that

Stage of fetal development when the life of the unborn child may be continued

indefinitely outside the womb by natural or artificial life support systems",

was attacked as an attempt to advance the point of viability to an earlier

stage of gestation.

The Court disagreed, finding the statutory definition

It re-emphasized that viability is

matter of medical

consistent with Roe.

to preserve the

judgment, skill, and technical ability" and that Roe meant

flexibility of the term.

4 2 8 U.S. a t 64. Moreover, the Danforth Court held

that "it i s not the proper function of the legislature or the courts to place

viability, which i s esentially a medical concept, a t a specific point i n the

gestation period.

The time when viability is achieved may vary with each

pregnancy, and the determination of whether a particular fetus is viable is,

4 2 8 U.S.

and must b e , a matter for the judgment of the attending physician."

at 64. The physician's central role in determining viability, and the lack

of such definitional authority i n the legislatures and courts, was most

379

recently reaffirmed by the Court in Colautti

Franklin, 439 U.S.

(1979).

111.

THE PUSLIC FUNDING OF ABORTIONS

Two categories of public funding cases have been heard and decided by the

Supreme Court: (1) those involving funding restrictions for nontherapeutic

(elective) abortions and

(2) those involving funding limitations

for

therapeutic (medically necessary) abortions.

A. The 1977 Trilogy

Elective Abortions

-- Restrictions on Pablic Funding

of

Nontherapeutic

or

On June 2 0 , 1977, the Supreme Court, in three related decisions, ruled on

the question whether the Medicaid statute or the COnStitUtiOiI requires public

funding of nontherapeutic (elective) abortions for indigent women or access

to public facilities for the performance of such abortions.

The Court held

that the States have neither a statutory nor a C O n ~ t i t ~ t i ~ n aobligation

l

in

464

this regard. Beal v. Doe, 432 U.S. 438 (1977); Maher v. R o e , 4 3 2 U.S.

(1977) ; and Poelker v. Doe, 4 3 2 U.S. 519 (1977) (per curiam) .

In Beal v. Doe, the Supreme Court dealt with the question of whether Title

XIX of the Social Security Act required the funding of nontherapeutic

abortion a s a condition of partieipation in the Medicaid program

established

by the Act.

The Court heid that nothing in the language or legislative

history of Title XIX requires a participating State to fund every medical

procedure falling within the delineated categories of medical

care.

Each

State is given broad discretion to deternine the extent of medical assistance

that is "reasonablev1and "consistent with the obligations'' of Title XIX.

The

Court ruled that it was not inconsistent with the Act's goals to refuse to

fund unnecessary medical services. The Court recognized the State's interest

in encouraging normal childbirth and found no congressional intent to

undercut that interest by subsidizing the costs of nontherapeutic abortions.

However, the Court did indicate that Title XIX left a State free to include

coverage for nontherapeutic abortions should it choose to do so.

In Maher v. Roe, the Supreme Court resolved a constitutionaP challenge ts

Connecticut's refusal to reimburse Medicaid recipients for abortion expenses

except where the attending physician certifies the abortion to have been

medically or psychiatrically necessary.

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, C0nx?ecticutts policy of favoring childbirth over abortion

was held not to i'mpinge upon the funds.menta1 right of privacy

recognized in

Roe v. Wade, which protects a woman from undue interference in her decision

According tc the Court, the State's choice did not

to terminate a pregnancy.

handicap an indigent woman desiring an abortion, since she could continue, as

before, to look to private abortion services and private sources of funding.

In essence, the Court found no absolute bar for an indigent woman seeking a n

aSortion.

of

In Poelker v. Doe, the Court upheld a regulation of the municipalities

St. Louis that denied indigent pregnant women nontherapeutic abortions a t

public hospitals.

In a n unsigned per curiam opinion, the Court stated that

it held "for the reasons stated in Maher, that the Constitution does not

forbid a State or city, pursuant to democratic processes, from expressing a

preference for normal childbirth as St. Louis has done."

4 3 2 U.S. at 521.

B.

The Public Funding of Therapeutic or Medically Necessary Abortions

Supreme Court's Decisions in McRae and Zbaraz

The 1977 Supreme Court decisions left open the question whether

law, such a s the Hyde Amendment, or similar State laws, could

prohibit governmental funding of therapeutic abortions.

-- The

Federal

validly

On June 30, 1980, in a 5-4 decision, the U.S. Supreme Court ruled that the

Hyde Amendment's abortion funding restrictions were constitutional.

The

Court's majority found that the Hyde Amendment neither violated

the due

process or equal protection guarantees of the Fifth Amendment nor the

Establishment Clause of the First Amendment.

The Court also upheld the right

of a State participating in the Medicaid program to fund only those medically

necessary abortions for which it received Federal reimbursement.

Harris

McRae, 100 S.Ct.

2671 (1980).

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 ,-Fsu-eenth

<.F<.

Amendment,.

Williams v. Zbaraz; Miller v. Zbaraz; U.S. v. Zbaraz, L,O0-__._

2694 (1980),.

The Court's rulings in McRae and Zbaraz mean there is no

statutory or constitutional obligation on the States or the

Federal

Government to fund all medically necessary abortions.

IV.

UNRESOLVED ISSUES RELATING TO ABORTION

Among the abortion issues not yet addressed by the Supreme Court are the

constitutionality of State statutes regarding: (1) the experimental use of

fetuses; (2) waiting period requirements; (3) termination of parental rights;

and (4) the right to refuse to provide abortion services by physicians and/or

private hospitals.

The subject of the experimental use of fetuses was challenged in Wynn v,

Scott, 449 F.Supp. 1302 (1978), appeal dismissed, 439 U.S.

8

(1979).

In

Wynn, the district court upheld as constitutional a State law that prohibited

live nonviable o r certain dead viable fetuses from being

used

for

449 F-Supp. at 1322.

The Court further found that

experimental purposes.

the provisions in the law being challenged did "not impose any burden on the

Id.

Moreover,

woman who is deciding whether to terminate her pregnancy."

the Court in Wynn ruled that the parties challenging the statute's validity

the

failed to prove that a rational relationship did not exist between

provision in tho law and the State's interest in regulating the practice of

medicine.

The question of the constitutional validity of State laws restricting

fetal research is likely to recur.

To date, there are approximately 1 9

States with laws that attempt to limit fetal research.

Thus, other court

challenges may be anticipated.

Another issue relating to abortion that has yet to reach resolution i n the

Supreme Court is that involving State laws requiring women to wait between 2 4

and 7 2 hours prior to receiving their abortions.

Most of the cases have held

that such waiting period

requirements which apply to all women were

constitutional. Wolfe v. Schroerinp, 541 F. 2d 523 (6th Cir. 1976); Wynn

Ill. 1978).

One court found that a waiting

Scott, 449 F-Supp. i302 (N.D.

period which applied only to minors was unconstitutional.

Wynn v. Carey, 599

F. 26 193 (7th Cir. 1979).

The court reasoned that the statute in question

was invalid because it was underinclusive by excluding married minors, and

overinclusive by including mature, emancipated minors.

More recently, the

U.S.

Court of Appeals for the First Circuit ordered the

State

of

Massachusetts to suspend a requirement that women wait 2 4 hours after signing

a mandatory consent form before an abortion can be performed, pending a lower

court ruling on the merits.

The court held that although the delay was

"extremely brief," it constituted a "substantial State-created

burden

on a

Woman's fundamsntal right" to have an abortion.

Planned Parenthood v.

Bellotti, 80-1580, 1st Cir., Feb. 19, 1981.

A number of States have laws that automatically terminate parental

rights

if a live infant results from an attempted abortion.

These laws have

uniformly been held unconstitutional. Wynn v. Carey, 599 F. 2d 193 (7th Cir.

These courts

1979); Wynn v. Scott, 449 F.Supp. 1302, 1322 (N.D. 111. 1978).

have generally reasoned that such statutes are invalid because the provisions

threaten women with a cut-off

of parental rights without according them

procedural due process.

There are two States, Indiana and Minnesota, that

have provisions for voluntary termination of parental rights which

have not

been challenged to date.

A final area in dispute involves the question of the constitutional

validity of State laws that allow doctors and/or private hospitals to refuse

to participate in an abortion.

No cases have been reported challenging State

statutes allowing physicians to refuse to perform an abortion.

There have

been challenges to State laws allowing private hospitals to refuse to

participate in abortions.

Such statutes have generally withstood court

challenges.

In one case a Federal court invalidated the provision because it

found that the private hospital in question was sufficiently

intermingled

with the Government to constitute State action. The presence of State action

caused the court to rule that the private hospital had to admit patients for

abortions.

Doe v. Charleston Area Med. Ctr., Inc. 529 F. 2d 6 3 8

(4th Cir.

1975).

See also, Jones v. Eastern Me. Med. Center, 448 F.Supp.

1156

(D-Me.

1978).

Public hospitals, however, do not have to allow abortions in

circumstances. See Poelker v. Doe, 4 3 2 U.S. 519 (1977), where the

Court held that the City of St. Louis had the fight to refuse to

publicly financed hospital services for nontherapeutic abertions.

V.

certain

Supreme

provide

LEGISLATION

In the 96th Congress, ? 3 bills were introduced containing some type of

restrictive abortion provision.

Thus far in the 97th Congress, 4 2 bills have

been submitted.

The proposals may be divided into five general categories:

A.

Bills that seek a constitutional amendment prohibiting abortion;

B.

Bills that seek to prohibit abortion by statute;

C.

Hyde-type amendments to aFpropriations bills;

D.

Hyde-type amendments to substantive bills; and

E.

Bills that limit Federal court jurisdiction over abortion-related

issues.

An examination of the biils in each of the five categories helps clarify

the different issues and methods proposed to restrict the availability of

abortion.

A.

Constituticnal Amendments

Since 1973, constitutional amendments have been introduced in Congress in

an attempt to overrule the Court's decision in Roe v.

Wade.

These

constitutional amendments have fallen into two areas:

The "State's rightsw

or State option type of amendment and the so-called "right to l i f e w or "human

life amendment (HLA)" proposal.

The "State's rights" amendment would

result

in abortion standards that would vary from State to State.

Some States night

prohibit abortions entirely; other could have no restrictions a t all.

In

effect, such an amendment would restore to the States the same control over

abortion rights that existed prior to the Supreme Court's decision in Roe

Wade in 1973. This option is not as popular as it once was.

No

"State's

rights" amendments have been introduced in the 96th Congress.

However,

21,

S.J.Res. 110, a "Human Life Federalism Amendment," was introduced

Sept.

1981, by Senator Hatch.

This proposed constitutional amendment is not like

the typical "State's rights" amendment previously

submitted.

S.J.Res.

110

" A right to abortion is not secured

by this Constitution.

The

provides:

Congress and the several States have the concurrent power to restrict and

prohibit abortions:

Provided, that a law of a State which

is more

restrictive than a law of Congress shall govern."

Hearings on S.J.Res.

110

are to be held by the Senate Judiciary Subcommittee on the Constitution Oct.

5 , 1 4 , 19; Nov. 5 , 6 , 1 2 , 16.

The typical "right to life" amendment would create a new right in the

unborn (personhood) which the Supreme Court has declared is not guaranteed i n

the Constitution at present.

Presently, the Fifth anC Fourteenth Amendments

prohibit only the Federal and State governments from depriving anyone of life

without due process of law. Some provisions of proposed

"right to life"

amendments would extend the prohibition to include private

individuals a s

well.

The proposed amendments utilize a variety of terms to define the time

the right attaches: "conception," "moment of fertilization" or "at any stage

of biological development."

Some amendments introduced allow abortion to save the life of the

Some provide no exceptions.

mother.

In the 97th Congress, the following proposed

constitutional amendments

have been introduced: H.J.Res* 1 3 , H.J.Res. 27, H.J.Res.

32, H.J.Res.

39,

H.J,Res. 5 0 , H.J.Res. 6 2 , H.J.Res. 9 2 , H.J.Res. 9 9 , H.J.Res.

1 0 4 , H.J.Res.

106, H.J.Res. 122.- H.J.Res. 125, H.J.Res. 1 2 7 , H.J.Res.

1 3 3 , H.J.Res.

198,

H.J.Res. 249, H.R. 392, S.J.Res. 1 7 , S.J.Res. 1 8 , S.J.Res. 1 9 , and S.J.Res.

110.

The only hearings held prior to the 97th Congress were conducted

periodically from 1974 to 1976 without any recommendation being made.

In

this Congress, hearings were held by the Senate Judiciary Subcommittee o n

Separation of Powers on Apr. 23 and 24, May 20, 21, June 1 , 1 0 , 1 2 , and 1 8 ,

1981, to discuss S. 1 5 8 and the policy implications of a Human Life Statute.

Hearings are presently being held on S.J.Res. 110.

B.

Bills that Seek to Prohibit Abortion by Statute

As an apparent alternative to the thusfar unsuccessful efforts to achieve

congressional passage of a constitutional amendment to prohibit o r limit the

practice of abortion, opponents of abortion have introduced several bills

in

the 97th Congress which they anticipate will accomplish the same objective

without resorting to the complex process of amending the Constitution.

Authority for such an 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

9 0 0 and H.R.

3225,

legislation."

The proposed legislation, S. 1 5 8 , H.R.

would declare as a congressional finding of fact that human life begins a t

conception and would, it is contended by its sponsors, allow States to enact

laws protecting human life, including fetuses.

The bills would make it more

difficult to test the constitutionality of State laws prohibiting abortions

by withdrawing jurisdiction of the lower Federal courts to review these State

laws. An appeal to the U.S. Supreme Court from the decision of a State's

highest Court would still be allowed, in some instances on a n expedited

basis.

Hearings on S. 158 were held in May and June 1981 before the Senate

Judiciary Subcommittee on the Separation of Powers.

The hearings were marked

by controversy among the witnesses and the members of the subcommittee over

the constitutionality of the declaration

that human life

begins

at

conception, which contradicts the Supreme Court's specific holding in Roe

Wade, and the withdrawal of lower Federal court jurisdiction over

suits

challenging State laws enacted pursuant to the Federal legislation.

On July

9 , 1981, the subcommittee by a vote of 3-2 approved a modified version of S.

158.

It was agreed, however, that full Judiciary Committee consideration of

the so-called Human Life Statute would be delayed until the Subcommittee o n

the Constitution completes hearings on proposed constitutional amendments on

the subject.

The subcommittee is not expected to complete its work

until

sometime in 1982.

C.

Hyde-Type Amendments to Appropriations Bills

Congress has attached abortion restrictions to appropriations bills, the

However, more

first being the Foreign Assistance Act of 1 9 7 3 , P.L. 93-189.

recently the focus of attention has been on restricting the availability of

abortions under the Medicaid program.

The latter series of restrictions have

popularly become known a s the Hyde Amendments.

To date, there have been four

enactments of this limitation on Federal funding of abortions under the

annual Departments of Labor (DOL) and Health, Education and Welfare

(HEW)

appropriations bills.

The first version of the Hyde Amendment was enacted as a rider to the F Y 7 7

Labor/HEW Appropriation Act, P.L. 94-439.

Section 209 of the law provided

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 in the fetus were carried to term.

During the first session of the 95th Congress, another

Appropriations

provision was attached

to ,the F Y 7 8 Labor/HEW

measure, P.L. 95-205, provided in part that:

restrictive

Act.

This

None of the funds prcvided for in this paragraph shall be

used to perform abortions except where the life of the mother

would be endangered if the fetus were carried to term; or

except for such medical procedures necessary for the victims

of rape or incest, when such rape or incest has been reported

promptly to a law enforcement agency or public health

service; or except in those instances where severe and

long-lasting physical health damage to the mother would

result if the pregnancy were carried to term when so

deternined by two physicians.

Nor are payments prohibited for drugs or devices to

prevent implantation of the fertilized ovum, or for medical

procedures necessary for the termination of an ectopic

pregnancy.

This provision thus broadened the use of appropriated

funds to. include

medical procedures for promptly reported cases of rape and incest, long

lasting physical health damage to the mother, and other matters.

The Labor/HEW abortion policy for FY79 is found in Section 210 of

95-480.

This third enactment of the Hyde Amendment was essentially the

as that of FY78.

P.L.

same

For FY80, the Labor/HEw abortion policy was changed by enactment of the

fourth version of the Hyde Amendment, which excluded abortions "where severe

and long lasting physical health damage would result if the pregnancy were

carried to term," but retained the other provisions enacted for FY78 and

FP79.

See P.L.

96-123, Section 109.

The House and Senate were unable to reach agreement on final FY81 funding

contained in the Labor/HHs appropriations measure.

After a protracted

debate, a contincing resoiution was adopted that contains a Hyde Amendment

which differs from the most recent restrictions i n two resFects.

First, a

rape must be reported to a law enforcement agency or public health

service

within 72 hours.

Second, and most significant, the States were released from

the obligation to fund any abortion if they so choose.

Prior to this

provision the courts had interpreted the Medicaid

statute to require the

See P.L.

States to fund all abortions allowed under the Hyde Amendment.

96-536.

The continuing resolution expired on June 6 , 1981, and was replaced

by P.L. 97-12 (H.R. 3512).

P.L. 97-12 provided for public funds for abortion

Only to save the life of the mother.

There are no rape or incest exceptions.

It also gave States the option not to fund abortions.

P.L. 97-12 expired on

Sept. 3C, 1981, and has been succeeded by P.L. 97-51 (H.J.Res. 325), another

continuing resolution for FY82, which was signed by President Reagan on Oct.

1 , 1981. The provisions of P.L. 97-12 were reenacted and will be effective

until Nov. 20, 1961.

Restrictions o n the Federal funding of abortion has had a significant

impact on the number of abortions performed

under the Medicaid

StatUte.

Prior to the enactment of the Hyde Amendment, the Office of Population

Affairs, DiiEW, prepared very rough estimates of Federal funds expended for

aSortions under the Medicaid program.

The Office of Population Affairs

estimated tnat in 1974 Medicaid

financed between

220,000 and 278,000

abortions at a cost of $40-50 million.

For 1976, the Office estimated

that

Medicaid financed abortion procedures at an annual rate of 250,000 to 300,000

According to the Medicaid data branch of the

at a cost of $45-55 million.

Office of Policy, Planning and Research, DHEW, from Feb.

1 4 , 1978 through

Dec. 31, 1978, 2,328 abortions were funded a t a cost of $777,158 to State and

Federal governments.

The Hyde Amendment process has not been limited to the annual Labor/HHS

appropriations bill.

During the 95th and 96th Congresses, Hyde-type abortion

limitations were enacted into law as Section 863 of the Department of Defense

Appropriations Act of 1979

(See P.L.

95-457, 95th Congress, 2d session

(1978)) and a s amendments to the District of Columbia appropriation bill for

FY80.

(See P.L. 96-93, 96th Congress, 1st session, (1979).)

Section 863 of the 1979 Department of Defense Appropriation Act is

referred to as the Dornan Amendment.

It uses language identical to that of

FY78 and ~ ~ L a

7 b o9

r / ~ E W appropriations.

The Dornan Amendment

restricts the

use of military

appropriations for abortions,

and

the

restrictions

specifically apply to military personnel and their dependents.

The abortion restriction for Federal funds provided

Columbia (D.C.) stated:

to

the

District

None of the Federal funds provided in this Act shall be

used to perform abortions except where the life of the inother

would be endangered if the fetus were carried to term; or

except for such medical procedures necessary for the victims

of rape or incest, when such rape or incest has been reported

promptly to a law enforcement agency or public health service.

Nor are payments prohibited for drugs or devices to prevent

implantation of the fertilized ovum, or for medical procedures

of

necessary for the termination of an ectopic pregnancy.

This limitation does not appear to restrict the use of non-Federal

funds at

the disposal of the District of Columbia.

The same funding restriction was

continued in the District's FY81 appropriation.

P.L.

96-530, Section 118.

On July 30, 1981, the House passed the Ashbrook amendment (roll call no.

182, 253-161) to H.R. 4121, the Treasury-Postal Service Appropriations

Act

for PY82.

The amendment prohibits the use of funds, except where the life of

the mother is endangered, to pay

for an abortion or the administrative

expenses connected with any health plan under the Federal Employees Health

Benefits program that covers abortions.

The bill has been sent to the Senate

for further action.

D.

Hyde-Type Amendments to Substantive Bills

Since 1973 several authorization bills have been adopted by Congress that

directly relate to the abortion issue. The Health Services Extension Act of

1973, P.L. 93-45, Contained a conscience clause, a provision

that prohibits

complying institutions and individuals that receive FeCeral funds to perform

or participate in abortion or sterilization procedures from discriminating

against applicants because of their beliefs on abortion.

The Foreign

Assistance Act of 1973, P.L. 93-189, prohibited the use of funds to pay

for

the performance of abortions or to coerce any person to practice abortion.

No conscience clause bills have been introduced in the 97th Congress.

In the recently approved Onnibus Budget Reconciliation Act of 1981, P.E.

97-35 (H.R. 3982), the Public Health Services Act was amended by adding a new

title XX entitled "Adolescent Family Life Demonstration Projects," which

prchibits the funding of programs if they provide abortions or abortion

related services a s follows:

(a) Grants or payments may be made only to programs or

"Sec. 2011.

projects which do not provide abortions or abortion counseling or referral,

or which do not subcontract with o r make any payment to any person who

provides abortions or abortion counseling or referral, except that any such

program or project may provide referral for abortion counseling to a pregnant

adolescent if such adolescent and the parents or guardians of such adolescent

request such referral; and grants may be made only to projects or programs

which do not advocate, promote, or encourage abortion.

"(b) The Secretary shall ascertain whether programs or projects

(a) and take appropriate action if programs or

comply with subsection

projects d o not comply with such subsection, including withholding of funds".

In the current Congress, H.R. 3480, the Legal Services Corporation Act

Amendments of 1980, passed the House on June 1 8 , 1981, with

a provision

to

prohibit legal assistance with respect to abortion unless the abortion is

necessary to save the life of the mother.

An amendment

(offered by

Representative Sensenbrenner) was rejected 160-242.

It would have prohibited

giving legal advice concerning a client's rights and r.esponsi5ilities

regarding abortion.

The bill is now awaiting Senate action.

H.R. 1059 and H.R. 1060 of the 97th Ccngress would permit

the parent or

guardian of a minor child to inspect personal medical files of the minor

except for that portion of the file that relates to family planning

services

! ~ n c l u d i n g abortion) sought and received by such

come out of committee.

minor.

Neither

bill

has

In the 96th Congress, a different approach was proposed in several bills

known a s the Family Protection Act.

The bills required federally-funded

abortiox and venereal disease treatment centers to notify parents of

unmarried minors that such minors have requested a n abortion, contraceptives,

or are undergoing treatment for a venereal disease. A similar proposal, H.R.

311, was introduced in this Congress. Two other bills, also entitled Family

3955

Protection Acts, have a slightly different emphasis. These bills, H.R.

and S. 1 3 7 8 , require the notification

of parents or guardians before a

federally funded program, project, o r entity may provide

contraceptive or

abortion services t c . a n unmarried minor.

The bills would also amend the

Legal Services Corporation Act to prohibit legal assistance for

any

proceeding or litigation to compel a n abortion or State or Federal funding

for an abortion.

The International Security and Development Cooperation Act of 1981, S.

1196, would prohibit using population planning and health program

funds to

pay for research related to the issue of abortions

or

involuntary

sterilization as a means of family planning.

H.R.

2446 of the 97th Congress would amend Title X of the Public Health

Service Act to deny grants and contracts to any entity that provides abortion

counseling to minors without the knowledge and consent of their parents or

guardians.

H.R. 2447 does not limit the restriction to Title X facilities.

E.

Limitation on Federal Court Jurisdiction

Several bills have been introduced in the 9?th

Congress proposing

limitations on the power of Federal courts, H.R. 73, H.R. 9 0 0 , H.R. 3225, S.

158, and S. 583 would prohibit Federal courts (excluding the Supreme Court)

from issuing injunctive relief in any case dealing with abortion.

H.R.

867

would remove the jurisdiction of the Supreme Court and Federal district

courts to prohibit the consideration of any abortion case.

Hearings have been held in both Houses on whether Congress has the

authority to remove the jurisdiction of the Supreme Court or lower Federal

courts over abortion cases.

Other controversial issues such a s school

busing, school prayer, and the military

draft have also precipitated

congressional attempts to curb Federal court jurisdiction. The hearings thus

far have not concentrated on a particular issue, but rather have focused on

583, H.R.

73, and

Congress' power over the courts generally.

However, S.

H.R. 8 6 7 were among the bills examined.

Hearings were held by

the Senate

Judiciary Subcommittee on the Constitution on May 20-21, and June 2 2 , 1981.

The House Judiciary Subcommittee

on

Courts,

Civil

Liberties,

and

Administration of Justice held a hearing on June 3 , 1981.

F.

Early Developments in the 97th Congress

The 97th Congress has demonstrated an intense interest in the abortion

Several sets of hearings have

issue with respect to overturning Roe v. Wade.

been held on the proposed Human Life Statute, on the authority of Congress to

remove jurisdiction from the Federal courts, and the Human Life Federation

Amendment.

P.L. 97-12 has further restricted MeCicaid

funding for abortions

dropping rape and incest exceptions and permitting the public funding

abortions only to sav2 the life of the mother.

by

of

H.R. 3480 prohibits the Legal Services Corporation

from providing

legal

assistance with respect to abortion unless the abortion is necessary to save

the life of the mother.

With the exceptions of the proposed Human Life Statute and the Human Life

Federalism Amendment, the joint resolutions calling for a constitutional

amendment that have been introduced do not differ significantly from those

introduced in previous Congresses.

By October 1981, 2 1 proposed right to

life constitutional amendments were introduced.

Seven would provide no

specific exception for procedures to save the life of the mother: H.J.

Res.

1 3 , H.Y.Res. 32, H.J.Res. 50, H.J.Res. 104, H.J.Res. 106, H.R.

392, S.J.Res,

19. Twelve would make the amendment inapplicable to laws permitting medical

procedures required to save the life of the mother: H.J.Res. 27, H.J.Res.

39,

H.J.Res. 6 2 , H.J.Res. 9 2 , H.J.Res. 9 9 , H.J.

Res. 122, H.J.Res. 1 2 5 , H.J.Res,

127, H.J.Res.

133, H.J.Res. 249, S.J.Res. 1 7 , S.J.

Res. 18.

In a different

twist, H.J,Res. 1 9 8 permits an abortion to save the life of the mother, but

requires that reasonable efforts be made to perserve the life of the person

who i s the subject of the abortion.

Only one State's rights constitutional

amendment has been introduced, S.J.Res. 110. Six bills have been introduced

to curtail Federal court jurisdiction.

One measure

(H.R.

867) would

eliminate all Federal court jurisdiction, including the Supreme Court, to

review any case arising out of State law or action relating to abortion.

Others prohibit any Federal court except the Supreme Court from issuing an

injunction in any case arising out of a federal, State or local law that

prohibits or regulates abortion or the provision of public assistance for the

performance of abortions.

Finally, in a novel approach, three bills, H.R. 9 0 0 , S. 158 and H.R. 3225,

have been introduced that would define the term person to include the unborn

for the purposes of the Fourteenth Amandment.

These Right to Life Statutes

therefore seek to overrule the contrary holding of Roe v. Wade by legislation

rather than constitutional amendment on the basis that such legislation is

authorized under Section 5 of the Fourteenth Amendment, which prcvides that

"the Congress shall have power to enforce, by appropriate legislation, the

provisions of this article."

See section V.B. above.

G.

Public Laws

93rd Congress

Five public laws governing abortion were enacted during the 93rd Congress:

(1) P.L. 93-45, the Health Service Extension Act of 1973, approved June 18,

Act for

1973; (2) P.L. 93-96, the National Science Foundation Authorization

FY74, approved Aug. 1 6 , 1973; (3) P.L. 93-189, the Foreign Assistance Act of

1973, approved Dec. 1 7 , 1973; (4) P.L. 93-348, the ~ i o m e d i c a lResearch Act of

1974, approved July 1 2 , 1974; and

(5) P.L.

93-355, the Legal Services

Corporation Act of 1974, approved July 25, 1974.

94th Congress

Two public laws were enacted during the 94th Congress:

(1)

P.L.

94-63,

the Nurses Training Act of 1975, approved July 2 9 , 1975; and (2) P.L.

the Labor-HEW Appropriations Act for FY77, approved Sept. 30, 1976.

94-439,

95th Congress

During the 95th Congress, eight measures containing abortion restrictions

were signed into law:

(1) P.L. 95-205, the Continuing Appropriations f o r

FY78, approved Dec. 9 , 1977;

(2) P.L.

95-215, the Health Services Act

1 9 , 1977;

(3)

P.L.

95-424,

the

Amendments of 1977, approved Dec.

6@

Internatiocal Development and Food Assistance Act of 1978, approved Oct.

1978; (4) P.L. 95-444, the Civil Rights Commission Act, approved Oct.

13,

1978; (5) P.L. 95-457, the Defense Department Applopriations Act for FY79,

approved Oct. 3.3, 1978; (6) P.L. 95-480, the Labor-HEW Appropriations Act for

FY79, approved Oct.

1 8 , 1978;

(7) P.L.

95-481,

Foreign

Assistance

(8) P.L.

95-555, the

Appropriations Act, approved Oct.

1 8 , 1978; and

Pregnancy Disability Act of 1978, approved Oct. 31, 1978.

96th Congress

In the 96th Congress, nine public laws contained abortion restrictions:

(1) P.L. 96-76, the Nurse Training Act Amendments of 1979, approved Sept. 29,

1979; (2) P.L. 96-86, the Continuing Appropriations Act for FY80, approved

Oct. 1 2 , 1979; (3) P.L.

96-93, the District of Columbia Appropriations Act

96-123, the Further Continuing

for FY80, approved Oct. 30, 1979; (4) P.L.

Appropriations Act for FY80, approved Nov. 20, 1979; (5) P.L.

96-154, the

Department of Defense Appropriations Act for FY80, approved Dec.

2 1 , 1979;

(6) P.L. 96-306, the Supplemental Appropriations and Recission Act

of 1980,

approved July 8 , 1980; (7) P.L. 96-369, the Continuing Appropriations Act for

FY81, approved Oct. 1 , 1980;

(8) P.L.

96-580, the District of Columbia

96-536, the

Appropriations Act for FY81, approved Dec. 1 3 , 1981; (9) P.L.

Continuing Appropriations Act for FY81, approved Dec. 1 6 , 1981.

97th Congress

Thus far, three measures containing restrictions on abortion have been

enacted:

P.L.

97-12

(H.R.

3512),

the Supplemental Appropriations and

Recission Act of 1981, provides that none of the funds in the Act

shall be

used to perform abortions except where the life of the mother

would be

endangered if the fetus were carried to term.

The States are free not to

fund abortions to the extent that they in their sole discretion deem

appropriate.

P.L. 97-35, the Omnibus Budget Reconciliation Act of 1981,

amends the Public Health Services Act by adding a new title XX, entitled

"Adolescent Family Life Demonstration Projects," which prohibits the funding

of programs if they provide abortions or abortion related services.

P.L.

97-51 (H.J.Res. 325), a continuing funding resolution, extends the abortion

restrictions through Nov. 20, 1981.

LEGISLATION

583 (Hatch)

H.R. 73 (Ashbrook et al.) , H.R. 867 (Crane, P.)/S.

Both H.R. 73 and S. 583 prohibit lower Federal courts from issuing

injunctive relief in any case dealing with abortion, but allow Supreme Court

jurisdiction. H.R. 867 removes the jurisdiction of ali Federal courts,

including the Supreme Court, to review abortion cases.

Hearings held on H.R.

73 and H.R. 9 6 7 by House Judiciary Subcommittee on Courts, Civil Liberties,

and the Administration of Justice June 3 , 1981. Hearings held on S.

583 b y

Senate Judiciary Subcommittee on the Constitution May 20-21, June 2 2 , 1981.

H.R. 9 0 0 (Hyde et al.) , H.R. 3225 (Mazzoli et al.) /S. 1 5 8 (Helms et al.)

Defines "person" to include the unborn for the purpose of the right to

life guarantee under the Fourteenth Amendment.

Prohibits any inferior

Federal court from issuing injunctive relief in any case arising out of State

or local law that prohibits or regulates abortion or the provisions of public

assistance for the performance of abortions.

H.R. 9 0 0 introduced Jan.

19,

1 0 , 1981; referred to Committee on the

1981; H.R. 3225 introduced Apr.

Judiciary.

S. 1 5 8 introduced Jan. 1 9 , 1981; referred to Committee on the

Judiciary; hearings held by Subcommittee on Separation of Powers Apr.

23-24,

May 20-21, June 1 , 1 0 , 12, 1 8 , 1981; amended bill reported to full committee

July 9 , 1981.

H.R. 3480 (Rodino et a 1 . )

Legal Services Corporation Act Amendments of 1980.

As passed by House,

prohibits legal assistance with respect to abortion unless the abortion is

necessary to save the life of the mother.

The Sensenbrenner amendment,

rejected by House 160-242, sought to prohibit the giving of legal advice

concerning a client's

rights and responsibilities regarding

abortion.

Introduced May 7, 1981; referred to Committee on the Judiciary; passed House

June 1 8 , 1981; awaits Senate action.

H.R.

4121 (Roybal)

Treasury, Postal Service Appropriations Act for FY82.

As passed by

the

House, prohibits the use of funds, except where the life of the mother

is

endangered, to pay for an abortion or the administrative expenses connected

With any health plan under the Federal Employees Health Benefits program that

covers abortions.

Introduced Jan.

1 5 , 1981; referred to Committee on

Appropriations; passed House July 30, 1981; reported by Senate Committee on

Appropriations Sept. 1 8 , 1981.

S. J. Res. 1 1 0 (Hatch)

Provides that there be no right to abortion under the Constitution and

gives Congress and the States concurrent power to restrict and prohibit

abortions with more restricting State laws given preference.

Hearings to be

held by the Senate Judiciary subcommittee on the Constitution Oct. 5 , 1 4 , 19;

Nov. 5 , 6, 1 2 , 1 6 , 1981.

HEARINGS

U.S.

Congress.

House. Committee on the Judiciary.

Subcommittee on

Civil and Constitutional Rights.

Proposed constitutional

amendments on abortion.

Hearings, 94th Congress, 2d session.

Feb. 4 , 5 ; Mar. 22-27, 1976.

U.S.

Congress.

House.

Committee on the Judiciary.

Subcommittee on Courts, Civil Liberties, and the

Administration of Justice. Constitutional restraints

upon the judiciary.

Hearings, 97th Congress, 1st

(not

session, on H.R. 73 and H.R. 867. June 3 , 1981.

yet published)

U.S.

Subcommittee on

Congress.

Senate.

Committee on the Judiciary.

Constitutional Amendments.

Abortion.

Hearings, 93d Congress, 2d

session, on S.J.Res. 119 and S.J.Res. 130.

Part 1.

U.S. Govt. Print. Off., 1974.

729 p.

Hearings held Mar. 6 and 7 , Apr. 1 0 , 1975.

Washington,

----- Abortion.

Hearings, 93d Congress, 2d session, on S.J. Res.

119 and S.J. Res. 130.

Part 2.

Washington, U.S. Govt. Print.

Off., 1975.

Hearings held Apr. 25, May 7 , June 4 and 2 6 , July 24, Aug. 21,

Sept. 1 2 , and Oct. 8 , 1974.

----- Abortion.

and S.J.Res.

Off., 1975.

Hearings, 9 3 6 Congress, 2d session, on S.J.Res.

130.

Part 3. Washington, U.S. Govt. Print.

4 7 5 p.

LRS75-22721

119

----- Abortion.

Hearings, 94th Congress, 1st session, on S.J.Res. 6 ,

S.d.Res. 1 0 and 1 1 , and S.J.Res. 91. Part 4. Washington, U.S.

Govt. Print. Off., 1976. 1001 p.

Hearings held Mar. 1 0 , Apr. 1 1 , May 9 , June 1 9 , and July 8 , 1975.

U.S.

Congress.

Senate. Committee on the Judiciary.

Subcommittee an the Constitution.

Constitutional

restraints upon the judiciary.

Hearings, 97th Congress,

1st session, on S. 583. May 20-21, and June 2 2 , 1981.

(not yet published)

U.S.

Congress.

Senate.

Committee on the Judiciary.

Subcommittee on Separation of Powers.

Proposed human

life statute.

Hearings, 97th Congress, 1st session, on

S. 158. Apr. 23-24, May 20-21, June I , 1 0 , 1 2 , 18, 1981.

(not Yet published)

CHRGNOLOGY OF EVENTS

08/13/81

-- P.L. 97-35 signed by President Reagan.

06/05/81

-- P.L. 97-12 signed by President Reagan.

03/23/81

-- The Supreme Court upheld a Utah statute that required

Amends the

Public Health Service Act by adding a new title XX,

entitled "Adolescent Family Life Demonstration

Projects,'' which prohibits the funding of PHs

programs if they provide abortions or abortion

related services.

Allows

Federal Medicaid funds for abortions only to save

the life of the mother.

a physician to give notice to parents before performing

an abortion upon an unemancipated, dependent minor.

03/17/80

-- Supreme Court refused to reconsider a June 30 decision

upholding Congressional restrictions on the use of Medicaid

funds to pay for abortions.

06/30/80

-- The U.S. supreme court rules that the Hyde Amendment

abortion restrictions are constitutionally valid.

01/16/80

-- The annual abortion restriction to Labor/HEW appropriation

bills was held unconstitutional by a U.S.

district Court

in Brooklyn, N.Y.

(KcRae v. Secretary, HEW).

ADDITIONAL REFERENCE SOURCES

Buckley, James L.

"A Human Life Amendment," 1 Human Life

Review 7-20 (Winter, 1975)

.

Byrn, Robert M.

"An American Tragedy:

The Supreme Court on

Abortion," 4 1 Fordham Law Review 807-862 (1973).

Cohen, Leslie A.

"Fetal Viability and Individual Automony:

Resolving Medical and Legal Standards for Abortion,"

27 U.C.L.A.

Law Review 1346 (1980).

Crocker, Royce.

"Abortion, 1980-1961:

Issue Brief IB81052.

Public Opinion," CRS

Bale, Charles.

"Potential Implications of S. 158 for the

Legal Rights of the Unborn in Traditional Areas of Tort,

Property, and Criminal Law," CRS American Law Division

Report, Apr. 21, 198%.

a comment o n

Ely, John Hart.

"The Wages of Crying Wolf:

Roe v. Wade," 82 Yale Law Journal 920-949 (April, 1973).

"The Limited

FOStr N., Chudasn, D. and Wikber, D.

Significance of 'Fetal Viability'," Hasting Center Report,

10-13 (December, 1980)

.

Galebach, Stephen H.

"A Human Life Statute," 7 Human Life

Review 5-33 (Winter, 1981)

.

Gorby, John D.

"The 'Right' to an Abortion, the Scope of

Fourteenth Amendment 'Personhood' and the Supreme

Court's Birth Requirement," 1979 Southern Illinois

University Law Journal 1 (1979).

"The Nature and Uses of Congressional

Gordon, Irving A.

Power under Section 5 of the Fourteenth Amendment to

Overcome Decisions of the Supreme C o u r t I n 72

Northwestern Law Review 656-705 (1977).

Griffin, Eugene.

"Viability and Fetal Life in State Criminal

Abortion Laws," 7 2 Journal of Criminal Law and Criminology

324 (1981).

Lewis K.J. and Rosenberg, M. "Legal Analysis of Congress'

Authority to Enact a Human Life Statute," CRS American

Law Division Report, Feb. 2 0 , 1981.

----- "Constitutional Authority to Enact a Human Life Statute:

A Constitutional Analysis of S. 158," CRS American Law

Division Report, Apr. 1 7 , 1981.

Meacs, Cyril C., Jr.

"The Law of New York Concerning Abortion

and the Status of the Fetus, 1664-1968: a Case of

Cessation of C ~ n s t i t u t i o n a l i t y . ~ 1 4 New York Law Forum

411-415 (Fall, 1968)

.

Mohr, James C. Abortion in America:

the Origins and

Evolution of National Policy, 1800-1900 (Oxford University

Press, Inc. 1976).

Noonan, John T., Jr., ed.

The Morality of Abortion:

Legal and

Historical Perspectives.

Cambridge, Harvard University

1. Upholding

Press, 1970; "The Supreme Court and Abortion:

Constitutional Principles," Hastings Center Report, 14-16

(December 1980).

-me--

"Why a Constitutional Amendment?"

26 (Winter, 1975).

1 Human Life Review

Paul, Eve W. and Schaap, Paula.

"Abortion and the Law in

1980."

25 New ~ o r kLaw School Law Review 497-525

(1980).

--

Medical and Legal

Quay, Eugene.

"Justifiable Abortion

Foundations," 49 Georgetown Law Journal 173 (Winter,

1960).

----- "Justifiable Abortion -- Medical and Legal Foundations,"

49 Georgetown Law Journal 395 (Spring, 1961).

Note, "Parental Notice Statutes: Permissible State

Regulation of a Minor's Abortion Decision," 49 Fordham Law

Review 8 1 (1980).

Note, "Survey of Abortion Law," 1 Arizona State Law Journal

67-216 (1980).