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
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.
The debate over abortion continued in the context of health reform. The Patient
Protection and Affordable Care Act (ACA or 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. ACA’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 ACA, 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: January 8, 2013
Number of Pages: 21 Order Number: RL33467 Price: $29.95
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