# Abortion: Judicial and Legislative Control

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/crs%3AIB74019

## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** October 13, 1981
- **Citation:** IB74019

## Text

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

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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

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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

...

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IB74019

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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

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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

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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

...

"...

--

--

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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

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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).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AIB74019. Public record. Not legal advice.