Abortion: Legislative Response

Order Code IB95095

CRS Issue Brief for Congress

Received through the CRS Web

Abortion:

Legislative Response

Updated February 6, 2006

Karen J. Lewis and Jon O. Shimabukuro

American Law Division

Congressional Research Service ˜ The Library of Congress

CONTENTS

SUMMARY

MOST RECENT DEVELOPMENTS

BACKGROUND AND ANALYSIS

Judicial History

Roe v. Wade and Doe v. Bolton

Supreme Court Decisions Subsequent to Roe and Doe

Webster

Casey

Ayotte

Public Funding of Abortions

The 1977 Trilogy — Restrictions on Public Funding of Nontherapeutic or Elective

Abortions

Public Funding of Therapeutic or Medically Necessary Abortions

Partial-Birth Abortion

Legislative History

Constitutional Amendments

Statutory Provisions

Bills that Seek to Prohibit the Right to Abortion by Statute

Hyde-Type Amendments to Appropriation Bills

Other Legislation

Legislation in the 108th Congress

FY2005 Appropriations

Legislation in the 109th Congress

FY2006 Appropriations

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Abortion: Legislative Response

SUMMARY

In 1973, the U.S. Supreme Court held

that the Constitution protects a woman’s

decision whether to terminate her pregnancy,

Roe v. Wade, 410 U.S. 113, and that a state

may not unduly burden the exercise of that

fundamental right by regulations that prohibit

or substantially limit access to the means of

effectuating that decision, Doe v. Bolton, 410

U.S. 179. But rather than settling the issue,

the Court’s rulings have kindled heated debate

and precipitated a variety of governmental

actions at the national, state, and local levels

designed either to nullify the rulings or limit

their effect. These governmental regulations

have, in turn, spawned further litigation in

which resulting judicial refinements in the law

have been no more successful in dampening

the controversy.

Legislation to prohibit a specific abortion

procedure, the so-called “partial-birth” abortion procedure, was passed in the 108th Congress. The Partial-Birth Abortion Ban Act

appears to be one of the only examples of

Congress restricting the performance of a

medical procedure.

In the 109th Congress, H.R. 748, the

Child Interstate Abortion Notification Act,

incorporates the language of the Child Custody Protection Act, but also imposes a 24hour parental notification requirement for

abortions occurring outside a minor’s state of

residence.

Since Roe v. Wade, Congress has attached abortion funding restrictions to numerous appropriations measures. The greatest

focus has been on restricting Medicaid abortions under the annual appropriations for the

Department of Health and Human Services.

This series of restrictions is popularly known

as the “Hyde Amendments.” Restrictions on

the use of appropriated funds affect numerous

federal entities, including the Department of

Justice, where federal funds may not be used

to perform abortions in the federal prison

system except in cases of rape or endangerment of the mother. Such restrictions also

impact the District of Columbia, where both

federal and local funds may not be used to

perform abortions except in cases of rape,

incest or endangerment of the mother, and

affect international organizations like the

United Nations Population Fund, which receives funds through the annual Foreign

Operations appropriations measure.

In recent years, the rights enumerated in

Roe have been redefined by decisions such as

Webster v. Reproductive Health Services,

which gave greater leeway to the States to

restrict abortion, and Rust v. Sullivan, which

narrowed the scope of permissible

abortion-related activities that are linked to

federal funding. The decision in Planned

Parenthood v. Casey, which established the

“undue burden” standard for determining

whether abortion restrictions are permissible,

gave Congress additional impetus to move on

statutory responses to the abortion issue, such

as the Freedom of Choice Act.

In each Congress since 1973, constitutional amendments to prohibit abortion have

been introduced. These measures have been

considered in committee, but none has been

passed by either the House or the Senate.

Congressional Research Service

˜

The Library of Congress

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MOST RECENT DEVELOPMENTS

On January 18, 2006, the U.S. Supreme Court vacated the decision of the U.S. Circuit

Court of Appeals for the First Circuit which found New Hampshire’s Parental Notification

Prior to Abortion Act unconstitutional. In Ayotte v. Planned Parenthood of Northern New

England, a unanimous Court concluded that a wholesale invalidation of the act was

inappropriate. Finding that only a few applications of the statute raised constitutional

concerns, the Court remanded the case to the lower courts to render narrower declaratory and

injunctive relief. Additional discussion of Ayotte is included in the Judicial History section

of this report.

BACKGROUND AND ANALYSIS

Judicial History

The primary focus of this issue brief is legislative action with respect to abortion.

However, discussion of the various legislative proposals necessarily involves a brief

discussion of the leading U.S. Supreme Court decisions concerning a woman’s right to

choose whether to terminate her pregnancy. For a more detailed discussion of the relevant

case law, see CRS Report 95-724, Abortion Law Development: A Brief Overview, by Karen

J. Lewis and Jon O. Shimabukuro.

Roe v. Wade and Doe v. Bolton

In 1973, the Supreme Court issued its landmark abortion rulings in Roe v. Wade, 410

U.S. 113 (1973), and Doe v. Bolton, 410 U.S. 179 (1973). In those cases, the Court found

that Texas and Georgia statutes regulating abortion interfered to an unconstitutional extent

with a woman’s right to decide whether to terminate her pregnancy. The Texas statute

forbade all abortions not necessary “for the purpose of saving the life of the mother.” The

Georgia enactment permitted abortions when continued pregnancy seriously threatened the

woman’s life or health, when the fetus was very likely to have severe birth defects, or when

the pregnancy resulted from rape. The Georgia statute required, however, that abortions be

performed only at accredited hospitals and only after approval by a hospital committee and

two consulting physicians.

The Court’s decisions were delivered by Justice Blackmun for himself and six other

Justices. Justices White and Rehnquist dissented. The Court ruled that states may not

categorically proscribe abortions by making their performance a crime, and that states may

not make abortions unnecessarily difficult to obtain by prescribing elaborate procedural

guidelines. The constitutional basis for the decisions rested upon the conclusion that the

Fourteenth Amendment right of personal privacy embraced a woman’s decision whether to

carry a pregnancy to term. Regarding the scope of that privacy right, the Court stated that

it included “only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept

of ordered liberty’” and “bears some extension to activities related to marriage, procreation,

contraception, family relationship, and child rearing and education.” Roe v. Wade, 410 U.S.

at 152-53. Such a right, the Court concluded, “is broad enough to encompass a woman’s

decision whether or not to terminate her pregnancy.” Id. at 153.

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With respect to protection of the right against state interference, the Court held that

since the right of personal privacy is a fundamental right, only a “compelling State interest”

could justify its limitation by a state. Thus, while it recognized the legitimacy of the state

interest in protecting maternal health and the preservation of the fetus’ potential life (id. at

148-150), as well as the existence of a rational connection between these two interests and

the state’s anti-abortion law, the Court held these interests insufficient to justify an absolute

ban on abortions. Instead, the Court emphasized the durational nature of pregnancy and held

the state’s interests to be sufficiently compelling to permit curtailment or prohibition of

abortion only during specified stages of pregnancy. The High Court concluded that until the

end of the first trimester, an abortion is no more dangerous to maternal health than childbirth

itself, and found that “[With] respect to the State’s important and legitimate interest in the

health of the mother, the “compelling” point, in light of present medical knowledge, is at

approximately the end of the first trimester.” Id. at 163. Only after the first trimester does

the state’s interest in protecting maternal health provide a sufficient basis to justify state

regulation of abortion, and then only to protect this interest. Id. at 163-64.

The “compelling” point with respect to the state’s interest in the potential life of the

fetus “is at viability.” Following viability, the state’s interest permits it to regulate and even

proscribe an abortion except when necessary, in appropriate medical judgment, for the

preservation of the life or health of the woman. Id. at 160. In summary, the Court’s holding

was grounded in this trimester framework analysis and the concept of fetal viability which

was defined in post-natal terms. Id. at 164-65.

In Doe v. Bolton, 410 U.S. 179 (1973), the Court extended Roe by warning that just as

states may not prevent abortion by making the performance a crime, states may not make

abortions unreasonably difficult to obtain by prescribing elaborate procedural barriers. In

Doe, the Court struck down state requirements that abortions be performed in licensed

hospitals; that abortions be approved beforehand by a hospital committee; and that two

physicians concur in the abortion decision. Id. at 196-99. The Court appeared to note,

however, that this would not apply to a statute that protected the religious or moral beliefs

of denominational hospitals and their employees. Id. at 197-98.

The Court in Roe also dealt with the question whether a fetus is a person under the

Fourteenth Amendment and other provisions of the Constitution. The Court indicated that

the Constitution never specifically defines “person”, but added that in nearly all the sections

where the word person appears, “the use of the word is such that it has application only

post-natally. None indicates, with any assurance, that it has any possible pre-natal

application.” 410 U.S. at 157. The Court emphasized that, given the fact that in the major

part of the 19th century prevailing legal abortion practices were far freer than today, the

Court was persuaded “that the word 'person', as used in the Fourteenth Amendment, does not

include the unborn.” Id. at 158.

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

noting the divergence of thinking on this issue, it instead articulated the legal concept of

“viability”, defined as the point at which the fetus is potentially able to live outside the

womb, although the fetus may require artificial aid. Id. at 160. Many other questions were

also not addressed in Roe and Doe, but instead formed the grist for a burgeoning book of

post-Roe litigation.

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Supreme Court Decisions Subsequent to Roe and Doe

The post-Roe litigation included challenges to state restrictions requiring informed

consent/waiting periods (Planned Parenthood v. Danforth, 428 U.S. 52 (1976), City of Akron

v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983)); spousal/parental

consent (Planned Parenthood v. Danforth, supra, Bellotti v. Baird, 443 U.S. 622 (1979), City

of Akron, supra, Planned Parenthood Association of Kansas City, Missouri Inc. v. Ashcroft,

462 U.S. 476 (1983)); parental notice (Bellotti v. Baird, supra, H. L. v. Matheson, 450 U.S.

398 (1981), Hartigan v. Zbaraz, 484 U.S. 171 (1987), Hodgson v. Minnesota, 497 U.S. 417

(1990), Ohio v. Akron Center for Reproductive Health, 497 U.S. 502 (1990); reporting

requirements (Planned Parenthood v. Danforth, supra, Planned Parenthood of Kansas City,

Missouri, Inc. v. Ashcroft, supra); advertisement of abortion services (Bigelow v. Virginia,

421 U.S. 809 (1975); abortions by nonphysicians (Connecticut v. Menillo, 423 U.S. 9 (1975);

locus of abortions (City of Akron, supra, Ashcroft, supra, Simopoulos v. Virginia, 462 U.S.

506 (1983)); viability, fetal testing, and disposal of fetal remains (Planned Parenthood of

Central Missouri v. Danforth, supra, Colautti v. Franklin, 439 U.S. 379 (1979), Ashcroft,

supra, City of Akron, supra); and “partial-birth” abortions (Stenberg v. Carhart, 530 U.S.

914 (2000)).

The Court in Rust v. Sullivan, 500 U.S. 173 (1991), upheld on both statutory and

constitutional grounds HHS’ Title X regulations restricting recipients of federal family

planning funding from using federal funds to counsel women about the option of abortion.

This case can better be described as one involving a challenge to First Amendment free

speech rights than to the constitutionally guaranteed substantive right to an abortion;

however, following its earlier public funding cases (Maher v. Roe and Harris v. McRae) as

precedent, the Court did conclude that a woman’s right to an abortion was not burdened by

these regulations. The Court reasoned that there was no such violation because the

government has no duty to subsidize an activity simply because it is constitutionally

protected and because a woman is “in no worse position than if Congress had never enacted

Title X.” For the purpose of this issue brief, the two landmark cases relevant for discussion

are Webster v. Reproductive Health Services, 492 U.S. 490 (1989), and Planned Parenthood

of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), because they represent a shift

in direction by the Supreme Court from the type of constitutional analysis it articulated in

Roe v. Wade and have implications for future legislative action and how such statutory

enactments will be judged by the courts in the years to come.

Webster

The Supreme Court upheld the constitutionality of the State of Missouri’s abortion

statute in Webster v. Reproductive Health Services, 492 U.S. 49 (1989). In this 5-4 decision,

while the majority did not overrule Roe v. Wade, it indicated that it was willing to apply a

less stringent standard of review to state restrictions on abortion. Webster made it clear that

state legislatures have considerable discretion to pass restrictive legislation in the future, with

the likelihood that such laws would probably pass constitutional muster.

The main provisions in the 1986 Missouri law upheld by the Court included (1) barring

public employees from performing or assisting in abortions not necessary to save the life of

the mother; (2) barring the use of public buildings for performing abortions, despite the fact

that there were no public monies involved (e.g., a building situated on public land); and (3)

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requiring physicians believing a woman desiring an abortion to be at least 20 weeks pregnant

to perform tests to determine whether the fetus is viable. The Webster ruling was narrow

in that it did not affect private doctors’ offices or clinics, where most abortions are

performed. Its significance derives more from the rationales articulated by the five justices

regarding how abortion restrictions would be reviewed in the future. However, because the

Missouri law did not limit abortion prior to viability, the plurality did not believe it was

necessary to consider overruling Roe. Webster set the stage for the Court’s 1992 decision

in Casey where a real shift in direction was pronounced.

Casey

Both Webster and Rust energized legislative activity, the former at both the federal and

state levels and the latter at the federal level. Some of the state legislative proposals that

became law were challenged in the courts (e.g., Pennsylvania, Guam, Louisiana, and Utah).

The Pennsylvania case, Planned Parenthood of Southeastern Pennsylvania v. Casey, 505

U.S. 833 (1992), was decided by the Supreme Court on June 29, 1992. In a highly

fractionated 5-4 decision, the Court reaffirmed the basic constitutional right to an abortion

while simultaneously allowing some new restrictions. Justices O’Connor, Kennedy and

Souter wrote the plurality opinion, and they were joined in part by Justices Stevens and

Blackmun. Chief Justice Rehnquist and Justices White, Scalia and Thomas dissented. The

Court refused to overrule Roe v. Wade, and the plurality explained at length why it was

important to follow precedent. At the same time, the plurality indicated that state laws which

contained an outright ban on abortion would be unconstitutional. Nevertheless, the Court

abandoned the trimester framework articulated in Roe and the strict scrutiny standard of

judicial review of abortion restrictions. Instead, it adopted a new analysis, “undue burden.”

Courts will now need to ask the question whether a state abortion restriction has the effect

of imposing an “undue burden” on a woman’s right to obtain an abortion. “Undue burden”

was defined as a “substantial obstacle in the path of a woman seeking an abortion of a

nonviable fetus.” 505 U.S. at 877.

The Court applied this new analysis to the Pennsylvania statute and concluded that four

of the provisions did not impose an undue burden on the right to abortion and were

constitutional. Those provisions upheld were the 24-hour waiting period; informed consent;

parental consent for minors’ abortions with a judicial bypass; and reporting requirements.

The spousal notification provision, requiring a married woman to tell her husband she

intends to have an abortion, did not survive the “undue burden” test, and it was struck down

as being unconstitutional.

The Court’s decision in Casey is significant because under the new standard of review

more state restrictions will be able to pass constitutional muster. Also, the Court found that

the state’s interest in protecting the potentiality of human life extended throughout the course

of the pregnancy, and thus the state could regulate, even to the point of favoring childbirth

over abortion, from the outset. Under Roe, which utilized the trimester framework, during

the first trimester of pregnancy, the woman’s decision to terminate her pregnancy was

reached in consultation between her and her doctor with virtually no state involvement.

Also, under Roe, abortion was a “fundamental right” that could not be restricted by the state

except to serve a “compelling” state interest. Roe’s strict scrutiny form of review resulted

in most state regulations being invalidated during the first two trimesters of pregnancy. The

“undue burden” standard will allow more regulation during that period. This is evident from

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the fact that in Casey the Court overruled in part two of its earlier decisions which had

followed Roe, City of Akron v. Akron Center of Reproductive Health, 462 U.S. 416 (1983)

and Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747

(1986.) In the 1983 and 1986 cases, the Court, applying strict scrutiny, had struck down

24-hour waiting periods and informed consent provisions; whereas in Casey, applying undue

burden, the Court upheld similar provisions.

Casey had its greatest immediate effect on women in the State of Pennsylvania;

however, its reasoning prompted other states to pass similar restrictions that could withstand

challenge under the “undue burden” standard.

Ayotte

In Ayotte v. Planned Parenthood of Northern New England, No. 04-1144 (2006), the

Court concluded that a wholesale invalidation of New Hampshire’s Parental Notification

Prior to Abortion Act was inappropriate. Finding that only a few applications of the act

raised constitutional concerns, the Court remanded the case to the lower courts to render

narrower declaratory and injunctive relief.

The New Hampshire law at issue in Ayotte prohibits physicians from performing an

abortion on a pregnant minor or a woman for whom a guardian or conservator has been

appointed until 48 hours after written notice has been delivered to at least one parent or

guardian. The notification requirement may be waived under certain specified

circumstances. For example, notification is not required if the attending abortion provider

certifies that an abortion is necessary to prevent the woman’s death and there is insufficient

time to provide the required notice.

Planned Parenthood of Northern New England and several other abortion providers

challenged the New Hampshire statute on the grounds that it does not include an explicit

waiver that would allow an abortion to be performed to protect the health of the woman. The

First Circuit invalidated the statute in its entirety on that basis. The First Circuit also

maintained that the act’s life exception was impermissibly vague and forced physicians to

gamble with their patients’ lives by preventing them from performing an abortion without

notification until they were certain that death was imminent.

Declining to revisit its prior abortion decisions, the Court insisted that Ayotte presented

a question of remedy. Maintaining that the act would be unconstitutional only in medical

emergencies, the Court determined that a more narrow remedy, rather than the wholesale

invalidation of the act, was appropriate: “Generally speaking, when confronting a

constitutional flaw in a statute, we try to limit the solution to the problem. We prefer, for

example, to enjoin only the unconstitutional applications of a statute while leaving other

applications in force . . . or to sever its problematic portions while leaving the remainder

intact.” Slip op. at 7.

The Court identified three interrelated principles that inform its approach to remedies.

First, the Court tries not to nullify more of a legislature’s work than is necessary because a

ruling of unconstitutionality frustrates the intent of the elected representatives of the people.

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Second, the Court restrains itself from rewriting a state law to conform to constitutional

requirements, even as it attempts to salvage the law. The Court explained that its

constitutional mandate and institutional competence are limited, noting that “making

distinctions in a murky constitutional context” may involve a far more serious invasion of

the legislative domain than the Court ought to take. Slip op. at 8.

Third, the touchstone for any decision about remedy is legislative intent; that is, a court

cannot use its remedial powers to circumvent the intent of the legislature. The Court

observed that “[a]fter finding an application or portion of a statute unconstitutional, we must

next ask: Would the legislature have preferred what is left of its statute to no statute at all?”

Id.

On remand, the lower courts will attempt to determine the intent of the New Hampshire

legislature when it enacted the parental notification statute. Although the State argued that

the measure’s severability clause illustrates the legislature’s understanding that the act should

continue in force even if certain provisions are invalidated, the respondents insisted that New

Hampshire legislators actually preferred no statute rather than one that would be enjoined in

the manner described by the Court. Thus, despite the Court’s recognition that the statute

could be saved from total invalidation, it remains possible that a lower court will determine

that the New Hampshire legislature never intended for the act to operate in a limited fashion

or with any kind of health exception read into the statute.

Some have criticized the Court’s willingness to invalidate the statute only as it applies

during medical emergencies. While it is not uncommon for federal courts to save a statute

from invalidation by severing unconstitutional provisions, these courts have generally limited

this practice to federal statutes. Critics maintain that the Court’s opinion represents an

impermissible expansion of federal judicial power over the states. They also argue that the

opinion could encourage states to enact legislation with provisions that are possibly or clearly

unconstitutional, knowing that a reviewing court will sever the impermissible provisions and

allow the remaining statute to continue in force.

Public Funding of Abortions

After the Supreme Court’s decisions in Roe and Doe, one of the first federal legislative

responses was enactment of restrictions on the use of federal money for abortions (e.g.,

restrictions on Medicaid funds — the so-called Hyde Amendment). Almost immediately

these restrictions were challenged in the courts. Two categories of public funding cases have

been heard and decided by the Supreme Court: those involving (1) funding restrictions for

nontherapeutic (elective) abortions; and (2) funding limitations for therapeutic (medically

necessary) abortions.

The 1977 Trilogy — Restrictions on Public Funding of Nontherapeutic or

Elective Abortions. The Supreme Court, in three related decisions, ruled that the states

have neither a statutory nor a constitutional obligation to fund elective abortions or provide

access to public facilities for such abortions (Beal v. Doe, 432 U.S. 438 (1977); Maher v.

Roe, 432 U.S. 464 (1977); and Poelker v. Doe, 432 U.S. 519 (1977) (per curiam)).

In Beal v. Doe, the Court held that nothing in the language or legislative history of Title

XIX of the Social Security Act (Medicaid) requires a participating state to fund every

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medical procedure falling within the delineated categories of medical care. The Court ruled

that it was not inconsistent with the act’s goals to refuse to fund unnecessary medical

services. However, the Court did indicate that Title XIX left a state free to include coverage

for nontherapeutic abortions should it choose to do so. Similarly, in Maher v. Roe, the Court

held that the Equal Protection Clause does not require a state participating in the Medicaid

program to pay expenses incident to nontherapeutic abortions simply because the state has

made a policy choice to pay expenses incident to childbirth. More particularly, Connecticut’s

policy of favoring childbirth over abortion was held not to impinge upon the fundamental

right of privacy recognized in Roe v. Wade, which protects a woman from undue interference

in her decision to terminate a pregnancy. Finally, in Poelker v. Doe, the Court upheld a

municipal regulation that denied indigent pregnant women nontherapeutic abortions at public

hospitals. It also held that staffing those hospitals with personnel opposed to the

performance of abortions did not violate the Equal Protection Clause of the Constitution.

Poelker, however, did not deal with the question of private hospitals and their authority to

prohibit abortion services.

Public Funding of Therapeutic or Medically Necessary Abortions. The 1977

Supreme Court decisions left open the question whether federal law, such as the Hyde

Amendment (restrictions on Medicaid funding of abortion), or similar state laws, could

validly prohibit governmental funding of therapeutic abortions.

The Court in Harris v. McRae, 448 U.S. 297 (1980), ruled 5-4 that the Hyde

Amendment’s abortion funding restrictions were constitutional. The majority found that the

Hyde Amendment neither violated the due process or equal protection guarantees of the Fifth

Amendment nor the Establishment [of religion] Clause of the First Amendment. The Court

also upheld the right of a state participating in the Medicaid program to fund only those

medically necessary abortions for which it received federal reimbursement. In companion

cases raising similar issues, the Court held that a state of Illinois statutory funding restriction

comparable to the Federal Hyde Amendment also did not contravene the constitutional

restrictions of the Equal Protection Clause of the Fourteenth Amendment (Williams v.

Zbaraz; Miller v. Zbaraz; U.S. v. Zbaraz, 448 U.S. 358 (1980)). The Court’s rulings in

McRae and Zbaraz mean there is no statutory or constitutional obligation of the states or the

federal government to fund medically necessary abortions.

Partial-Birth Abortion

On June 28, 2000, the Court decided Stenberg v. Carhart, 530 U.S. 914 (2000), its first

substantive abortion case since Casey. In Stenberg, the Court determined that a Nebraska

statute that prohibited the performance of so-called “partial-birth” abortions was

unconstitutional because it failed to include an exception to protect the health of the mother

and because the language defining the prohibited procedure was too vague.1 In affirming the

decision of the Eighth U.S. Circuit Court of Appeals, the Court agreed that the language of

the Nebraska statute could be interpreted to prohibit not just the dilation and extraction

(D&X) procedure that pro-life advocates oppose, but the dilation and evacuation (D&E)

procedure that is the most common abortion procedure during the second trimester of

1

See also CRS Report RL30415, Partial-Birth Abortion: Recent Developments in the Law, by Jon

O. Shimabukuro.

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pregnancy. The Court believed that the statute was likely to prompt those who perform the

D&E procedure to stop because of fear of prosecution and conviction. The result would be

the imposition of an “undue burden” on a woman’s ability to have an abortion.

During the 106th Congress, both the Senate and House passed bills that would have

prohibited the performance of partial-birth abortions. The Senate passed the Partial-Birth

Abortion Ban Act of 1999 (S. 1692) on October 21, 1999 by a vote of 63-34. H.R. 3660, the

Partial-Birth Abortion Ban Act of 2000, was passed by the House on April 5, 2000 by a vote

of 287-141. Although the House requested a conference, no further action was taken.

Similar partial-birth abortion measures were vetoed during the 104th and 105th Congresses.

In both instances, President Clinton focused on the failure to include an exception to the ban

when the mother’s health is an issue.

During the 107th Congress, the House passed H.R. 4965, the Partial-Birth Abortion Ban

Act of 2002, by a vote of 274-151. H.R. 4965 would have prohibited physicians from

performing a partial-birth abortion except when it was necessary to save the life of a mother

whose life was endangered by a physical disorder, physical illness, or physical injury,

including a life-endangering physical condition caused by or arising from the pregnancy

itself. The bill defined the term “partial-birth abortion” to mean an abortion in which “the

person performing the abortion deliberately and intentionally vaginally delivers a living fetus

until, in the case of a head-first presentation, the entire fetal head is outside the body of the

mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is

outside the body of the mother for the purpose of performing an overt act that the person

knows will kill the partially delivered living fetus.” Physicians who violated the act would

have been subject to a fine, imprisonment for not more than two years, or both. H.R. 4965

was not considered by the Senate.

During the 108th Congress, on November 5, 2003, the President signed S. 3, the PartialBirth Abortion Ban Act of 2003 (P.L. 108-105). The Senate initially passed S. 3 on March

13, 2003 by a vote of 64-33. H.R. 760, a companion measure to S. 3, was passed by the

House on June 4, 2003 by a vote of 282-139. Shortly after passage of H.R. 760, pursuant to

H.Res. 257, the language of S. 3 was struck, and the provisions of H.R. 760 were inserted

into the measure. On September 17, 2003, the Senate voted 93-0 to reject the House

amendment to S. 3. The Senate’s vote moved the two measures to conference. On

September 30, 2003, a House-Senate conference committee agreed to report a version of the

bill that was identical to the House-passed measure. The House approved H.Rept. 108-288,

the conference report for the Partial-Birth Abortion Ban Act of 2003, by a vote of 281-142

on October 2, 2003. The Senate agreed to the conference report by a vote of 64-34 on

October 21, 2003.

In general, the act prohibits physicians from performing a partial-birth abortion except

when it is necessary to save the life of a mother whose life is endangered by a physical

disorder, physical illness, or physical injury, including a life-endangering physical condition

caused by or arising from the pregnancy itself. Physicians who violate the act are subject to

a fine, imprisonment for not more than two years, or both.

Despite the Court’s holding in Stenberg and past decisions that have found that

restrictions on abortion must allow for the performance of an abortion when it is necessary

to protect the health of the mother, the Partial-Birth Abortion Ban Act of 2003 does not

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include such an exception. In his introductory statement for the act, Senator Rick Santorum

discussed the measure’s lack of a health exception.2 He maintained that an exception is not

necessary because of the risks associated with partial-birth abortions. Senator Santorum

insisted that congressional hearings and expert testimony demonstrate “that a partial birth

abortion is never necessary to preserve the health of the mother, poses significant health risks

to the woman, and is outside the standard of medical care.”3

Within two days of the act’s signing, federal courts in Nebraska, California, and New

York blocked its enforcement. Since that time, the U.S. Courts of Appeals for the Second,

Eighth, and Ninth Circuits have affirmed lower court decisions that have found the act to be

unconstitutional. In Carhart v. Gonzales, 413 F.3d 791 (8th Cir. 2005), the first of the Court

of Appeals decisions to be issued, the Eighth Circuit found the Partial-Birth Abortion Ban

Act unconstitutional based solely on its failure to include a health exception. The court

indicated that the government had to demonstrate “that relevant evidentiary circumstances

(such as the presence of a newfound medical consensus or medical studies)” had changed to

show that a health exception is unnecessary. Id. at 802. Because there was no new evidence,

the court refused to disavow Stenberg and upheld the act. Finding the act unconstitutional

for its lack of a health exception, the court declined to consider whether the act imposed an

undue burden on a woman’s ability to have an abortion.

On January 31, 2006, the Second and Ninth Circuits issued their decisions on the

Partial-Birth Abortion Ban Act. In National Abortion Federation v. Gonzales, No. 04-5201CV (2d Cir. 2006), the Second Circuit determined that the act is unconstitutional because it

does not include a health exception. In light of the Court’s decision in Ayotte, however, the

Second Circuit deferred the question of remedy until after the parties could submit briefs on

the issue.

In Planned Parenthood v. Gonzales, No. 04-16621 (9th Cir. 2006), the Ninth Circuit

concluded that the act is unconstitutional for three distinct reasons: because it lacks a health

exception; because it imposes an undue burden on a woman’s ability to obtain a previability

abortion by limiting the availability of the D&X abortion procedure, as well as the D&E

procedure; and because its definition of the unlawful procedure is unconstitutionally vague,

depriving physicians of fair notice of what is prohibited and encouraging arbitrary

enforcement. Unlike the Second Circuit, the Ninth Circuit found that a permanent injunction

was the appropriate remedy for the unconstitutional statute. The court observed that a more

narrow injunction would require the court “to violate the intent of the legislature and usurp

the policy-making authority of Congress.” Slip op. at 49. The legislative history of the

Partial-Birth Abortion Ban Act reveals Congress’s rejection of numerous amendments that

would have added a health exception to the measure. Thus, the Ninth Circuit maintained that

a decision that read a health exception into the statute would undermine congressional intent.

In September 2005, the Attorney General filed a petition for review of Carhart by the

Court. Although there has been no split among the Courts of Appeals that have considered

the validity of the Partial-Birth Abortion Ban Act, the Court is still expected to consider the

issue in the near future.

2

149 Cong. Rec. S2523 (daily ed. Feb. 14, 2003) (statement of Sen. Santorum).

3

Id.

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Legislative History

Rather than settle the issue, the Court’s decisions in Roe v. Wade and Doe v. Bolton

have prompted debate and precipitated a variety of governmental actions at the national, state

and local levels to limit their effect. As the previous Congresses had been, the 108th

Congress continued to be a forum for proposed legislation and constitutional amendments

aimed at limiting or prohibiting the practice of abortion. Further activity is occurring in the

109th Congress. This section examines the history of the federal legislative response to the

abortion issue.

In the decade prior to the decision in Roe v. Wade, 10 pieces of legislation relating to

abortion were introduced in either the House or the Senate. Since 1973, more than 1,000

separate legislative proposals have been introduced. The wide disparity in these statistics

illustrates the impetus that the Court’s 1973 decisions gave to congressional action. By far

the greater number of these proposals have sought to restrict the availability of abortions.

A few measures have been introduced seeking to better secure the right. The Freedom of

Choice Act (FOCA), which was introduced and debated in both the 102nd and 103rd

Congresses, was never enacted. FOCA was an attempt to codify Roe v. Wade legislatively.

The Freedom of Access to Clinic Entrances Act of 1994, P.L. 103-259 (18 U.S.C. 248),

made it a federal crime to use force, or the threat of force, to intimidate abortion clinic

workers or women seeking abortions.

Proponents of more restrictive abortion legislation have employed a variety of

legislative initiatives to achieve this end, with varying degrees of success. Initially,

legislators focused their efforts on the passage of a constitutional amendment which would

overrule the Supreme Court’s decision in Roe. This course, however, proved to be

problematic.

Constitutional Amendments

Since 1973, a series of constitutional amendments have been introduced in each

Congress in an attempt to overrule the Court’s decision in Roe v. Wade. To date, no

constitutional amendment has been passed in either the House or the Senate; indeed for

several years, proponents had difficulty getting the measures reported out of committee.

Interest in the constitutional approach peaked in the 94th Congress when nearly 80

amendments were introduced. By the 98th Congress, the number had significantly declined.

It was during this time that the Senate brought to the floor the only constitutional amendment

on abortion that has ever been debated and voted on in either House.

During the 98th Congress, S.J.Res. 3 was introduced. Subcommittee hearings were held,

and the full Judiciary Committee voted (9-9) to send the amendment to the Senate floor

without recommendation. As reported, S.J.Res. 3 included a subcommittee amendment

eliminating the enforcement language and declared simply, “A right to abortion is not

secured by this Constitution.” By adopting this proposal, the subcommittee established its

intent to remove federal institutions from the policymaking process with respect to abortion

and reinstate state authorities as the ultimate decisionmakers.

S.J.Res. 3 was considered in the Senate on June 27 and 28, 1983. The amendment

required a two-thirds vote to pass the Senate since super-majorities of both Houses of

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Congress must approve a constitutional amendment before it can be submitted to the states.

On June 28, 1983, S.J.Res. 3 was defeated (50-49), not having obtained the two-thirds vote

necessary for a constitutional amendment. [For a review of the full debate on S.J.Res. 3, see

129 Congressional Record S9076, et seq., daily ed., June 27, 1983; 129 Congressional

Record S9265, et seq., daily ed., June 28, 1983.]

Statutory Provisions

Bills that Seek to Prohibit the Right to Abortion by Statute. As an alternative

to a constitutional amendment to prohibit or limit the practice of abortion, opponents of

abortion have introduced a variety of bills designed to accomplish the same objective without

resorting to the complex process of amending the Constitution. Authority for such action is

said to emanate from Section 5 of the Fourteenth Amendment, which empowers the

Congress to enforce the due process and equal protection guarantees of the amendment “by

appropriate legislation.” One such bill, S. 158, introduced during the 97th Congress, would

have declared as a congressional finding of fact that human life begins at conception, and

would, it was contended by its sponsors, allow states to enact laws protecting human life,

including fetuses. Hearings on the bill were marked by controversy over the constitutionality

of the declaration that human life begins at conception, which contradicted the Supreme

Court’s specific holding in Roe v. Wade, and over the withdrawal of lower federal court

jurisdiction over suits challenging state laws enacted pursuant to federal legislation. A

modified version of S. 158 was approved in subcommittee, but that bill, S. 1741, had no

further action in the 97th Congress.

Hyde-Type Amendments to Appropriation Bills. As an alternative to these

unsuccessful attempts to prohibit abortion outright, opponents of abortion sought to ban the

use of federal monies to pay for the performance of abortions. They focused their efforts

primarily on the Medicaid program since the vast majority of federally funded abortions were

reimbursed under Medicaid.

The Medicaid program was established in 1965 to fund medical care for indigent

persons through a federal-state cost-sharing arrangement; however, abortions were not

initially covered under the program. During the Nixon Administration, the Department of

Health, Education and Welfare (HEW) decided to reimburse states for the funds used to

provide abortions to poor women. This policy decision was influenced by the Supreme

Court’s decision in Roe v. Wade which, in addition to decriminalizing abortion, was seen as

legitimizing the status of abortion as a medical procedure for the purposes of the Medicaid

program.

Since Roe v. Wade, Congress has attached abortion funding restrictions to numerous

appropriations bills. Although the Foreign Assistance Act of 1973, P.L. 93-189, was the first

such enactment, the greatest focus has been on restricting Medicaid abortions under the

annual appropriations for the Department of Health, Education, and Welfare (HEW) (now

the Department of Health and Human Services (HHS)).

The first of a series of restrictions, popularly referred to as the “Hyde Amendments,”

was attached to the FY1977 Departments of Labor and Health, Education, and Welfare

Appropriation Act, P.L. 94-439. As originally offered by Representative Hyde, the proposal

would have prohibited the funding of all abortions. A compromise amendment offered by

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Representative Conte was eventually agreed to, providing that “None of the funds contained

in this act shall be used to perform abortions except where the life of the mother would be

endangered if the fetus were carried to term.”

In subsequent years, Hyde Amendments were sometimes reworded to include

exceptions for rape and incest or long-lasting physical health damage to the mother.

However, from the 97th Congress until recently the language has been identical to the original

enactment, allowing only an exception to preserve the life of the mother. In 1993, during the

first year of the Clinton Administration, coverage under the Hyde Amendment was expanded

to again include cases of rape and incest. Efforts to restore the original language (providing

for only the life of the woman exception) failed in the 104th Congress.

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

Beginning with P.L. 95-457, the Department of Defense Appropriation Acts have contained

Hyde-type abortion limitations. This recurring prohibition was eventually codified and made

permanent by P.L. 98-525, the Department of Defense Authorization Act of 1984.

Beginning with P.L. 96-93, the District of Columbia (D.C.) Appropriations Acts have

contained restrictive abortion provisions. In recent years there have been efforts to expand

the prohibitions to District funds as well as the federal funds appropriated. The passage of

P.L. 100-462, the FY1989 D.C. Appropriations Act, marked the first successful attempt to

extend abortion restrictions to the use of District funds. In 1993 and 1994, lawmakers

approved a prohibition that applied only to federal monies. The 104th Congress approved a

ban on all government funding of abortion (federal and D.C.), except in cases of rape, incest

or danger to a woman’s life. This ban has continued in recent appropriations measures for

the District.

In 1983, the Hyde Amendment process was extended to the Department of the Treasury

and Postal Service Appropriations Act, prohibiting the use of Federal Employee Health

Benefits to pay for abortions except when the life of the woman was in danger. Prior to this,

it had been reported that in 1980, for instance, federal government health insurance plans

paid an estimated $9 million for abortions, both therapeutic and non-therapeutic. The

following year the Office of Personnel Management (OPM) attempted through administrative

action to eliminate non-life- saving abortion coverage. This action was challenged by federal

employee unions, and the U.S. district court held that OPM acted outside the scope of its

authority, and that absent a specific congressional statutory directive, there was no basis for

OPM’s decision. American Federation of Government Employees v. AFL-CIO, 525 F.Supp.

250 (1981). It was this background that led to the 1983 congressional action to include the

prohibition on coverage for abortion in federal employee health insurance plans except when

the life of the woman was in danger. This prohibition was removed in 1993. However, the

104th Congress passed language prohibiting the use of federal money for abortion under the

Federal Employee Health Benefit Program except in cases where the life of the mother would

be endangered or in cases of rape or incest.

Finally, under Department of Justice appropriations, funding of abortions in prisons is

prohibited except where the life of the mother is endangered, or in cases of rape. First

enacted as part of the FY1987 Continuing Resolution, P.L. 99-591, this provision has been

reenacted as part of the annual spending bill in each subsequent fiscal year, but the language

has been modified in recent years.

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Other Legislation

In addition to the temporary funding limitations contained in appropriation bills,

abortion restrictions of a more permanent nature have been enacted in a variety of contexts

since 1970. For example, the Family Planning Services and Population Research Act of

1970, P.L. 91-572 (42 U.S.C. 300a-6), bars the use of funds for programs in which abortion

is a method of family planning.

The Legal Services Corporation Act of 1974, P.L. 93-355 (42 U.S.C. 2996f(b)(8)),

prohibits lawyers in federally funded legal aid programs from providing legal assistance for

procuring non-therapeutic abortions and prohibits legal aid in proceedings to compel an

individual or an institution to perform an abortion, assist in an abortion, or provide facilities

for an abortion.

The Pregnancy Discrimination Act, P.L. 95-555 (42 U.S.C. 2000e(k)), provides that

employers are not required to pay health insurance benefits for abortion except to save the

life of the mother, but does not preclude employers from providing abortion benefits if they

choose to do so.

The Civil Rights Restoration Act of 1988, P.L. 100-259 (20 U.S.C. 1688), states that

nothing in the measure either prohibits or requires any person or entity from providing or

paying for services related to abortion.

The Civil Rights Commission Amendments Act of 1994, P.L. 103-419 (42 U.S.C.

1975a(f)), prohibits the Commission from studying or collecting information about U.S. laws

and policies concerning abortion.

Legislation in the 108th Congress

H.R. 1997, the Unborn Victims of Violence Act of 2004 or Laci and Conner’s Law, was

signed by the President on April 1, 2004 (P.L. 108-212).4 The act establishes a separate

offense for harming or killing an “unborn child” in utero during the commission of a violent

crime. Punishment for the separate offense is the same as if the offense had been committed

against the pregnant woman. In addition, an offense does not require proof that the person

engaging in the misconduct had knowledge or should have had knowledge that the victim

of the underlying offense was pregnant, or that the defendant intended to cause the death of,

or bodily injury to, the child in utero. The phrase “child in utero” is defined by the act to

mean “a member of the species homo sapiens, at any stage of development, who is carried

in the womb.”

H.R. 1755, the Child Custody Protection Act, was introduced by Representative Ileana

Ros-Lehtinen on April 10, 2003. S. 851, the Senate version of the act, was introduced by

Senator John E. Ensign on the same day. The act would have prohibited the knowing

transport of a minor across state lines for the purpose of obtaining an abortion. The bill

sought to prevent the abridgement of parental consent and notification requirements in a

minor’s residing state. Violators of the act would have been subject to a fine under Title 18

4

See also CRS Report RS21550, The Unborn Victims of Violence Act, by Jon O. Shimabukuro.

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of the United States Code or imprisonment for not more than one year, or both. The act’s

prohibition would not have applied to abortions that were necessary to save the life of the

minor because her life was endangered by physical disorder, physical injury, or physical

illness.

S. 1397, the Abortion Non-Discrimination Act of 2003, was introduced by Senator Judd

Gregg on July 14, 2003. Under the bill, various health care entities, including hospitals and

health maintenance organizations, that refused to provide coverage for abortion or refused

to pay for induced abortions could not have been subject to adverse action by the federal

government or state or local governments that receive federal financial assistance. A similar

version of the act was passed by the House during the 107th Congress, but was not considered

by the Senate. For additional information on the Abortion Non-Discrimination Act, see CRS

Report RS21428, The History and Effect of Abortion Conscience Clause Laws, by Jody

Feder.

FY2005 Appropriations

On December 8, 2004, the President signed H.R. 4818, the Consolidated Appropriations

Act, 2005 (P.L. 108-447). The act encompassed four appropriations measures with abortion

or family planning provisions: the Departments of Commerce, Justice, and State, the

Judiciary, and Related Agencies Appropriations Act, 2005 (Division B); the Foreign

Operations, Export Financing, and Related Programs Appropriations Act, 2005 (Division D);

the Department of Labor, Health and Human Services, and Education, and Related Agencies

Appropriations Act, 2005 (Division F); and the Transportation, Treasury, Independent

Agencies, and General Government Appropriations Act, 2005 (Division H). In general, H.R.

4818 retained many of the abortion funding restrictions that have appeared in past

appropriations measures. For example, under Division B, appropriated funds could be used

to pay for an abortion only where the life of the mother would be endangered if the fetus was

carried to term or in the case of rape. Similarly, Division F prohibited the use of funds,

including funds derived from any trust funds that received appropriations, for abortions

except in cases of rape or incest, or where a woman who suffers from a physical disorder,

injury, or illness would have her life jeopardized if an abortion was not performed.

Section 508(d) of Division F provided one notable change to the annual appropriations.

Section 508(d) prohibited the availability of appropriated funds to a federal agency or

program or to a state or local government if such agency, program, or government

“subject[ed] any institutional or individual health care entity to discrimination on the basis

that the health care entity [did] not provide, pay for, provide coverage of, or refer for

abortions.” This prohibition resembled similarly restrictive language in the proposed

Abortion Non-Discrimination Act of 2003. A discussion of that measure is included in the

Legislation in the 108th Congress section of this report.

H.R. 4850, the FY2005 appropriations measure for the District of Columbia, also

included language that restricted the availability of funds to pay for abortions (P.L. 108-335).

The measure prohibited the use of appropriated and local funds to pay for abortions except

where the life of the mother would be endangered if the fetus was carried to term or where

the pregnancy was the result of an act of rape or incest.

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Legislation in the 109th Congress

Legislation that would prohibit the knowing transport of a minor across state lines for

the purpose of obtaining an abortion has again been introduced. S. 403, the Child Custody

Protection Act, was introduced by Senator John E. Ensign on February 16, 2005.5 The bill

seeks to prevent the abridgement of parental consent and notification requirements in a

minor’s residing state. Violators of the act would be subject to a fine under Title 18 of the

United States Code or imprisonment for not more than one year, or both. The act’s

prohibition would not apply to abortions that are necessary to save the life of the minor

because her life is endangered by a physical disorder, physical injury, or physical illness.

H.R. 748, the Child Interstate Abortion Notification Act, incorporates the language of

the Child Custody Protection Act, but also imposes a 24-hour parental notification

requirement for abortions occurring outside a minor’s state of residence. H.R. 748 was

passed by the House on April 27, 2005 by a vote of 270-157. The measure, introduced by

Representative Ileana Ros-Lehtinen on February 10, 2005, would require a physician who

performs or induces an abortion on a minor who is a resident of a state other than the state

in which the abortion is performed to provide at least 24 hours written notice to a parent of

the minor before performing the abortion. A parent who suffers harm from a violation of the

notice requirement could obtain appropriate relief in a civil action. The notice requirement

would not apply in certain specified situations, including those where the abortion is

necessary to save the life of the minor because her life is endangered by a physical disorder,

physical injury, or physical illness.

Legislation that would require an abortion provider or his agent to provide specified

information to a pregnant woman prior to the performance of an abortion has also been

introduced. S. 51, the Unborn Child Pain Awareness Act of 2005, was introduced by Senator

Sam Brownback on January 24, 2005. H.R. 356, the House version of the act, was

introduced by Representative Christopher H. Smith on January 25, 2005. Under the measure,

an abortion provider or his agent would be required, prior to the performance of an abortion,

to make a prescribed oral statement to the pregnant woman, provide an “Unborn Child Pain

Awareness Brochure” to the woman, and obtain the woman’s signature on an “Unborn Child

Pain Awareness Decision Form.”

The act’s requirements would apply only when an abortion is being performed on a socalled “pain-capable unborn child.” The term “pain-capable unborn child” is defined by the

act to mean “an unborn child who has reached a probable stage of development of 20 weeks

after fertilization.” The requirements would not apply during a medical emergency when

delay of the procedure would impose “a serious risk of causing grave and irreversible

physical health damage entailing substantial impairment of a major bodily function.”6

Penalties for knowing violations of the act would include suspension or revocation of a

medical license, or civil penalties.

5

Additional versions of the Child Custody Protection Act have also been introduced as S. 396 and

S. 8 in the 109th Congress. The language in all three measures is identical.

6

S. 51, 109th Cong. § 3 (2005).

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FY2006 Appropriations

The FY2006 appropriations measures retain longstanding restrictions on the use of

federal funds for abortion and abortion-related services. On November 14, 2005, the

President signed H.R. 3057, the FY2006 Foreign Operations appropriations measure (P.L.

109-102). The bill provides that none of the appropriated funds may be made available to

an organization or program that supports or participates in the management of a program of

coercive abortion or involuntary sterilization. In addition, appropriated funds are not

available for the performance of abortions as a method of family planning, or to motivate or

coerce any person to practice abortions. Appropriated funds are not available to lobby for

or against abortion. To reduce reliance on abortion in developing nations, funds are available

only for voluntary family planning projects which offer a broad range of family planning

methods and services. Such voluntary family planning projects must meet specified

requirements.

Contributions to the UNFPA are conditioned on the entity not funding abortions. In

addition, amounts appropriated to the UNFPA under the measure must be kept in an account

that is separate from the UNFPA’s other accounts. The UNFPA must not commingle funds

provided under the measure with the entity’s other sums.

On November 22, 2005, the President signed H.R. 2862, the FY2006 appropriations

measure for the Departments of Commerce, Justice, and State (P.L. 109-108). The bill

prohibits the use of funds to pay for abortions in the federal prison system except in cases

where the life of the mother would be endangered if the fetus were carried to term or in the

case of rape.

Under H.R. 3058, the FY2006 appropriations measure for the Departments of

Transportation, Treasury, and Housing and Urban Development, the Judiciary, the District

of Columbia, and independent agencies, appropriated funds may not be used to pay for

abortions or for any administrative expenses related to a health plan in the federal employees

health benefits program that provides benefits or coverage for abortions. H.R. 3058 also

prohibits the use of appropriated and local funds to pay for abortions in the District of

Columbia except where the life of the mother would be endangered if the fetus was carried

to term or where the pregnancy is the result of an act of rape or incest. H.R. 3058 was signed

by the President on November 30, 2005 (P.L. 109-115).

H.R. 3010, the FY2006 appropriations measure for the Departments of Labor, Health

and Human Services, and Education, and Related Agencies was signed by the President on

December 30, 2005 (P.L. 109-149). H.R. 3010 prohibits the use of funds, including funds

derived from any trust fund that receives appropriations, for abortions except in cases of rape

or incest, or where a woman who suffers from a physical disorder, injury, or illness would

have her life jeopardized if an abortion was not performed. H.R. 3010 includes the

nondiscrimination language that first appeared in the FY2005 appropriations provisions for

the Department of Health and Human Services. This language prohibits the availability of

appropriated funds to a federal agency or program or to a state or local government if such

agency, program, or government subjects a health care entity to discrimination on the basis

that the entity does not provide, pay for, provide coverage of, or refer for abortions.

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