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Monday, October 17, 2011

Abortion: Judicial History and Legislative Response

Jon O. Shimabukuro
Legislative Attorney

In 1973, the U.S. Supreme Court concluded in Roe v. Wade that the U.S. Constitution protects a woman’s decision to terminate her pregnancy. In Doe v. Bolton, a companion decision, the Court found that a state may not unduly burden the exercise of that fundamental right with regulations that prohibit or substantially limit access to the means of effectuating the decision to have an abortion. Rather than settle the issue, the Court’s rulings since Roe and Doe have continued to generate debate and have precipitated a variety of governmental actions at the national, state, and local levels designed either to nullify the rulings or limit their effect. These governmental regulations have, in turn, spawned further litigation in which resulting judicial refinements in the law have been no more successful in dampening the controversy.

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 Court’s decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, which established the “undue burden” standard for determining whether abortion restrictions are permissible, gave Congress additional impetus to move on statutory responses to the abortion issue, such as the Freedom of Choice Act.

Legislation to prohibit a specific abortion procedure, the so-called “partial-birth” abortion procedure, was passed in the 108th Congress. The Partial-Birth Abortion Ban Act appears to be one of the only examples of Congress restricting the performance of a medical procedure. Legislation that would prohibit the knowing transport of a minor across state lines for the purpose of obtaining an abortion has been introduced in numerous Congresses.

Since Roe, Congress has attached abortion funding restrictions to various appropriations measures. The greatest focus has arguably been on restricting Medicaid abortions under the annual appropriations for the Department of Health and Human Services. This restriction is commonly referred to as the “Hyde Amendment” because of its original sponsor. Similar restrictions affect the appropriations for other federal 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 if the life of the mother would be endangered. Hyde-type amendments also have an impact in the District of Columbia, where federal funds may not be used to perform abortions except in cases of rape, incest or where the life of the mother would be endangered, and affect international organizations like the United Nations Population Fund, which receives funds through the annual Foreign Operations appropriations measure.

Finally, the debate over abortion continued in the context of health reform. The Patient Protection and Affordable Care Act (PPACA), enacted on March 23, 2010, includes provisions that address the coverage of abortion services by qualified health plans that will be available through health benefit exchanges beginning in 2014. PPACA’s abortion provisions have been controversial, particularly with regard to the use of premium tax credits or cost-sharing subsidies to obtain health coverage that includes coverage for elective or non-therapeutic abortion services. Under PPACA, individuals who receive a premium tax credit or cost-sharing subsidy will be permitted to select a qualified health plan that includes coverage for elective abortions, subject to funding segregation requirements that will be imposed on both the plan issuer and the enrollees in such a plan.

Date of Report: October 7, 2011
Number of Pages: 20
Order Number: RL33467
Price: $29.95

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