Abortion: Legislative Response

^Pr^ep^ar^{ed f}^o^r^M^e^m^b^ers^an^d^Com^mⁱ^t^t^ees^of^C^ong^r^e^ss

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.
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.
Legislation to prohibit a specific abortion procedure, the so-called “partial-birth” abortion ^th
procedure, was passed in the 108 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 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 have an impact in the District of Columbia, where both federal
and local funds may not be used to perform abortions except in cases of rape, incest or where the
mother is endangered, and affect international organizations like the United Nations Population
Fund, which receives funds through the annual Foreign Operations appropriations measure.

Most Recent Developments.............................................................................................................1
Judicial History................................................................................................................................1
Roe v. Wade and Doe v. Bolton..................................................................................................2
Supreme Court Decisions Subsequent to Roe and Doe.............................................................3
Webster ...................................................................................................................................... 4
Cas e y ......................................................................................................................................... 4
Ay o t t e ......................................................................................................................................... 5
Public Funding of Abortions.....................................................................................................7
The 1977 Trilogy—Restrictions on Public Funding of Nontherapeutic or Elective
Aborti ons ......................................................................................................................... 7
Public Funding of Therapeutic or Medically Necessary Abortions....................................7
Partial-Birth Abortion................................................................................................................8
Legislative History.........................................................................................................................11
Constitutional Amendments.....................................................................................................11
Statutory Provisions................................................................................................................12
Bills that Seek to Prohibit the Right to Abortion by Statute.............................................12
Hyde-Type Amendments to Appropriation Bills...............................................................12
Other Legislation.....................................................................................................................14
Legislation in the 110^th Congress..................................................................................................14
FY2007 Appropriations...........................................................................................................15
FY2008 Appropriations...........................................................................................................16
Author Contact Information..........................................................................................................17

On December 19, 2008, the Department of Health and Human Services (HHS) issued a new rule
to implement existing federal health care conscience protection laws. Under the so-called Church
Amendments, the Weldon Amendment, and certain provisions of the Public Health Service Act,
specified individuals or entities may not be discriminated against for failing to participate in ¹
activities related to abortion. The new rule provides definitions for some of the terms used in the
conscience protection laws, establishes a written certification of compliance requirement for
recipients of federal health care funds, and identifies HHS’s Office of Civil Rights as the entity
responsible for complaint handling and investigation.
HHS maintains that the new rule is necessary to educate the public and health care providers on ²
the protections afforded by federal law. The agency also notes that the new rule will “[foster] a ³
more inclusive, tolerant environment in the health care industry than may currently exist.”
Opponents of the new rule, however, contend that the new rule could jeopardize the health of
individuals by making it more difficult to obtain health care services and information. They argue,
for example, that the new rule could limit the availability of oral contraceptives.
Legislation that would appear to have halted the new rule was introduced in the 110^th Congress.
The Protecting Patients and Health Care Act (S. 20/H.R. 7310) was introduced by Senator Hillary
Rodham Clinton and Representative Diana DeGette, but was not considered by either chamber. ^th
The 111 Congress may attempt to address the new rule pursuant to the Congressional Review ⁴
Act, which permits the use of expedited procedures to disapprove an agency’s final rule.
Alternately, Congress could enact legislation that amends the conscience protection laws to
establish new definitions and procedures. Such legislation would have the likely effect of
overriding the new rule. The rule could also be amended or rescinded by further administrative
action. Such action, however, would have to follow procedures established by the Administrative ⁵
Procedure Act.

The primary focus of this report 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 ⁶
her pregnancy.

¹^For^a^dditi^ona^l^inf^o^r^m^a^{tion o}ⁿ^t^h^e^f^e^de^r^a^{l he}^a^{lth c}^a^r^e^c^ons^cⁱ^eⁿ^c^e^pr^ote^c^tion^la^w^s^{, s}^e^e^C^R^S^R^e^por^{t R}^L³⁴⁷⁰^3,^Th^e
^Hⁱ^s^t^or^y^an^{d Effe}^c^t^{of A}^bor^tⁱ^oⁿ^C^o^ns^cⁱ^eⁿ^c^e^C^l^aus^e^L^a^w^s^,^by^J^{on O}^.^Shim^a^buk^ur^o.
²^Ens^u^rⁱ^ng^T^h^a^t^D^e^pa^r^t^m^e^{nt of}^H^e^a^{lth a}ⁿ^d^H^u^m^a^{n Se}^r^v^ic^e^s^Funds^D^o^N^o^t^Su^pp^or^{t C}^o^e^r^cⁱ^v^e^or^Dⁱ^s^c^rⁱ^mⁱ^na^tor^y^P^o^lic^ie^s
^or^P^r^a^c^tic^e^sⁱⁿ^Vi^ola^tioⁿ^of^Fe^de^r^a^{l L}^a^w^,^{73 Fe}^d.^R^e^g^.^78,⁰⁷^2,⁷⁸^,0^{74 (}^D^e^c^.^19,²⁰⁰⁸⁾⁽^t^o^be^c^o^difⁱ^e^d^a^t⁴⁵^C^.^F.R^.^pt^.
⁸⁸⁾^.
³^Id^.
⁴^For^a^dditi^ona^l^inf^o^r^m^a^{tion o}ⁿ^t^h^e^C^ong^r^e^s^sⁱ^ona^{l R}^e^vⁱ^e^w^A^c^{t, s}^e^e^C^R^S^R^e^por^t^R^L³⁴⁷⁴⁷^,^Mⁱ^dn^ig^{ht R}^u^le^m^a^kⁱⁿ^g^:
^C^ons^ide^r^a^tio^ns^for^C^o^ngr^e^s^s^an^d^{a N}^e^w^Admⁱ^nis^t^r^a^tⁱ^oⁿ^,^by^C^u^r^tis^W^.^C^ope^la^nd.
⁵^S^{ee i}^d^.
⁶^For^a^m^o^r^e^de^ta^ile^d^dis^c^us^sⁱ^oⁿ^of^the^r^e^le^v^a^{nt c}^a^s^e^law^,^s^e^e^C^R^S^R^e^por^t^95-⁷²^4,^A^b^o^r^tⁱ^oⁿ^L^a^{w Devel}^o^p^m^en^t^:^A^B^rⁱ^e^f
^Overvi^ew^{, b}^y^J^{on O}^.^S^h^im^a^buk^ur^o.

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. With regard
to 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, 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.
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 found 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 ^th
Court emphasized that, given the fact that in the major part of the 19 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 led to a wealth of post-Roe litigation.
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. While Rust is probably better
understood as a case involving First Amendment free speech rights rather than as a challenge to
the constitutionally guaranteed substantive right to abortion, the Court, following its earlier public
funding cases (Maher v. Roe and Harris v. McRae), did conclude that a woman’s right to an
abortion was not burdened by the Title X regulations. The Court reasoned that there was no
constitutional 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.”
In addition to Rust, the Court decided several other noteworthy cases involving abortion
following Roe. Webster v. Reproductive Health Services, 492 U.S. 490 (1989), and Planned
Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), illustrate a shift in
direction by the Court from the type of constitutional analysis it articulated in Roe. These cases
and other more recent cases, such as Stenberg v. Carhart, 530 U.S. 914 (2000), and Ayotte v.
Planned Parenthood of Northern New England, 126 S.Ct. 961 (2006), have implications for
future legislative action and how enactments will be judged by the courts in the years to come.
Webster, Casey, and Ayotte are discussed in the subsequent sections of this report. A discussion of
Stenberg is included in the “Partial-Birth Abortion” section of the report.
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, 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) 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.
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, 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. The
provisions that were upheld involved the 24-hour waiting period; informed consent; parental
consent for minors’ abortions with a judicial bypass; and reporting requirements. The spousal
notification provision, which required a married woman to tell her husband if she intended to
have an abortion, did not survive the “undue burden” test and was struck down as
unconstitutional.
The Court’s decision in Casey was significant because the new standard of review appeared to
allow more state restrictions to pass constitutional muster. In addition, the Casey Court found that
the state’s interest in protecting the potentiality of human life extended throughout the course of
the pregnancy. Thus, the state could regulate, even to the point of favoring childbirth over
abortion, from the outset. Under Roe, which utilized the trimester framework, a woman’s decision
to terminate her pregnancy was reached in consultation with her doctor with virtually no state
involvement during the first trimester of pregnancy.
Moreover, 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 allowed greater regulation during that period. This is evident from the fact that
the Casey 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 these cases, the Court,
applying strict scrutiny, struck down 24-hour waiting periods and informed consent provisions;
whereas in Casey, applying the undue burden standard, 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.
In Ayotte v. Planned Parenthood of Northern New England, 546 U.S. 320 (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 prohibited physicians from performing an abortion on
a pregnant minor or a woman for whom a guardian or conservator was appointed until 48 hours
after written notice was delivered to at least one parent or guardian. The notification requirement
could be waived under certain specified circumstances. For example, notification was not
required if the attending abortion provider certified that an abortion was necessary to prevent the
woman’s death and there was 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 did 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.” Id. at 328-29.
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.
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. Id. at 330.
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 were expected 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 illustrated the legislature’s understanding that the act should
continue in force even if certain provisions were 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. On February 1, 2007, a federal district court in New Hampshire
entered a procedural order that stayed consideration of the case while a bill to repeal the Parental ⁷
Notification Prior to Abortion Act was pending in the state legislature. The act was subsequently
repealed by the legislature, effective June 29, 2007.
Some criticized the Court’s willingness to invalidate the New Hampshire statute only as it applied
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 maintained that the Court’s opinion represented an
impermissible expansion of federal judicial power over the states. They also argued that the
opinion could encourage states to enact legislation with provisions that are possibly or clearly

⁷^S^{ee P}^l^anⁿ^e^{d P}^a^rent^ho^od^o^f^N^o^rth^e^rn^N^e^w^Eⁿ^g^l^an^{d v.}^A^y^o^t^t^e^{, 5}⁷¹^F.Su^pp^.2^{d 2}⁶⁵⁽^D^{. N}^.^H^.²⁰⁰⁸⁾^.

unconstitutional, knowing that a reviewing court will sever the impermissible provisions and
allow the remaining statute to continue in force.
After the Supreme Court’s decisions in Roe and Doe, one of the first federal legislative responses
was the 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 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 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, 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.
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 an 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.
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 ⁸
language defining the prohibited procedure was too vague. In affirming the decision of the
Eighth Circuit, 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 standard dilation and evacuation (D&E) procedure that is the most common abortion
procedure during the second trimester of 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 106^th 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 ^th^th
measures were vetoed during the 104 and 105 Congresses. In both instances, President William
J. Clinton focused on the failure to include an exception to the ban when the mother’s health is an
issue.
During the 107^th 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 108^th Congress, on November 5, 2003, the President signed S. 3, the Partial-Birth
Abortion Ban Act of 2003 (P.L. 108-105). The Senate initially passed S. 3 on March 13, 2003 by

⁸^S^{ee a}^l^so^{CRS Rep}^o^{rt RL}³⁰⁴¹⁵^,^P^a^rtⁱ^a^l^-^Bⁱ^rt^{h A}^b^o^r^tⁱ^oⁿ^:^R^ecen^t^D^evel^o^p^m^en^t^sⁱⁿ^t^h^{e L}^a^w^,^by^J^{on O}^.^Shim^a^buk^ur^o^.

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 include such an exception. In
his introductory statement for the act, Senator Rick Santorum discussed the measure’s lack of a ⁹
health exception. 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 ¹⁰
medical care.”
Within two days of the act’s signing, federal courts in Nebraska, California, and New York
blocked its enforcement. On April 18, 2007, the Court upheld the Partial-Birth Abortion Ban Act
of 2003, finding that, as a facial matter, it is not unconstitutionally vague and does not impose an ¹¹
undue burden on a woman’s right to terminate her pregnancy. In Gonzales v. Carhart, 127 S.Ct.
1610 (2007), the Court distinguished the federal statute from the Nebraska law at issue in
Stenberg. According to the Court, the federal statute is not unconstitutionally vague because it
provides doctors with a reasonable opportunity to know what conduct is prohibited. Id. at 1628.
Unlike the Nebraska law, which prohibited the delivery of a “substantial portion” of the fetus, the
federal statute includes “anatomical landmarks” that identify when an abortion procedure will be
subject to the act’s prohibitions. The Court noted: “[I]f an abortion procedure does not involve the
delivery of a living fetus to one of these ‘anatomical landmarks’—where, depending on the
presentation, either the fetal head or the fetal trunk past the navel is outside the body of the
mother—the prohibitions of the Act do not apply.” Id. at 1627.
The Court also maintained that the inclusion of a scienter or knowledge requirement in the federal
statute alleviates any vagueness concerns. Because the act applies only when a doctor
“deliberately and intentionally” delivers the fetus to an anatomical landmark, the Court concluded
that a doctor performing the D&E procedure would not face criminal liability if a fetus is

⁹¹⁴⁹^Con^g^.^R^ec.^S²⁵²³⁽^d^a^ily^e^d^.^Fe^br^ua^r^y^{14, 2}⁰⁰³⁾⁽^s^ta^te^m^e^{nt of}^Se^{n. Sa}ⁿ^t^or^um⁾^.
¹⁰^Id^.
¹¹^Un^lⁱ^k^{e “as-ap}^p^lⁱ^e^d^”^ch^al^l^eⁿ^g^es,^w^hⁱ^c^h^coⁿ^sⁱ^d^{er t}^h^{e val}ⁱ^dⁱ^t^y^o^f^{a st}^at^u^t^{e as ap}^p^lⁱ^e^{d t}^o^{a p}^a^rtⁱ^c^ul^{ar p}^l^aⁱⁿ^tⁱ^f^f^,^faci^al
^c^h^a^lle^ng^e^s^se^e^k^{to inv}^a^lida^t^e^a^sta^t^uteⁱⁿ^a^{ll of}^{its a}^p^plic^a^tio^ns.

delivered beyond the prohibited points by mistake. Id. at 1628. The Court observed: “The scienter
requirements narrow the scope of the Act’s prohibition and limit prosecutorial discretion.” Id. at

1629.

In reaching its conclusion that the Partial-Birth Abortion Ban Act of 2003 does not impose an
undue burden on a woman’s right to terminate her pregnancy, the Court considered whether the
federal statute is overbroad, prohibiting both the D&X and D&E procedures. The Court also
considered the statute’s lack of a health exception.
Relying on the plain language of the act, the Court determined that the federal statute could not be
interpreted to encompass the D&E procedure. The Court maintained that the D&E procedure
involves the removal of the fetus in pieces. In contrast, the federal statute uses the phrase
“delivers a living fetus.” The Court stated: “D&E does not involve the delivery of a fetus because
it requires the removal of fetal parts that are ripped from the fetus as they are pulled through the
cervix.” Id. at 1630. The Court also identified the act’s specific requirement of an “overt act” that
kills the fetus as evidence of its inapplicability to the D&E procedure. The Court indicated: “This
distinction matters because, unlike [D&X], standard D&E does not involve a delivery followed
by a fatal act.” Id. at 1631. Because the act was found not to prohibit the D&E procedure, the
Court concluded that it is not overbroad and does not impose an undue burden a woman’s ability
to terminate her pregnancy.
According to the Court, the absence of a health exception also did not result in an undue burden.
Citing its decision in Ayotte, the Court noted that a health exception would be required if the act
subjected women to significant health risks. Id. at 1635. However, acknowledging medical
disagreement about the act’s requirements ever imposing significant health risks on women, the
Court maintained that “the question becomes whether the Act can stand when this medical
uncertainty persists.” Id. at 1636. Reviewing its past decisions, the Court indicated that it has
given state and federal legislatures wide discretion to pass legislation in areas where there is
medical and scientific uncertainty. Id. The Court concluded that this medical uncertainty provides
a sufficient basis to conclude in a facial challenge of the statute that it does not impose an undue
burden. Id. at 1637.
Although the Court upheld the Partial-Birth Abortion Ban Act of 2003 without a health exception,
it acknowledged that there may be “discrete and well-defined instances” where the prohibited
procedure “must be used.” Id. at 1638. However, the Court indicated that exceptions to the act
should be considered in as-applied challenges brought by individual plaintiffs: “In an as-applied
challenge the nature of the medical risk can be better quantified and balanced than in a facial
attack.” Id. at 1638-39.
Justice Ginsburg authored the dissent in Gonzales. She was joined by Justices Stevens, Souter,
and Breyer. Describing the Court’s decision as “alarming,” Justice Ginsburg questioned
upholding the federal statute when the relevant procedure has been found to be appropriate in
certain cases. Id. at 1641. Citing expert testimony that had been introduced, Justice Ginsburg
maintained that the prohibited procedure has safety advantages for women with certain medical
conditions, including bleeding disorders and heart disease. Id. at 1644-45.
Justice Ginsburg also criticized the Court’s decision to uphold the statute without a health
exception. Justice Ginsburg declared: “Not only does it defy the Court’s longstanding precedent
affirming the necessity of a health exception, with no carve-out for circumstances of medical
uncertainty ... it gives short shrift to the records before us, carefully canvassed by the District

Courts.” Id. at 1646. Moreover, according to Justice Ginsburg, the refusal to invalidate the
Partial-Birth Abortion Ban Act of 2003 on facial grounds was “perplexing” in light of the Court’s
decision in Stenberg. Id. at 1650. Justice Ginsburg noted: “[I]n materially identical circumstances
we held that a statute lacking a health exception was unconstitutional on its face.” Id.
Finally, Justice Ginsburg contended that the Court’s decision “cannot be understood as anything
more than an effort to chip away at a right declared again and again by [the] Court—and with
increasing comprehension of its centrality to women’s lives.” Id. at 1653. Citing the language
used by the Court, including the phrase “abortion doctor” to describe obstetrician-gynecologists
and surgeons who perform abortions, Justice Ginsburg maintained that “[t]he Court’s hostility to
the right Roe and Casey secured is not concealed.” Id. at 1650. She argued that when a statute
burdens constitutional rights and the measure is simply a vehicle for expressing hostility to those
rights, the burden should be viewed as “undue.” Id. at 1653.

Rather than settle the issue, the Court’s decisions in Roe and Doe have prompted debate and
precipitated a variety of governmental actions at the national, state, and local levels to limit their ^th
effect. The 110 Congress continued to be a forum for proposed legislation and constitutional
amendments aimed at limiting or prohibiting the practice of abortion. This section examines the
history of the federal legislative response to the abortion issue.
In the decade prior to the decision in Roe, 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, most of these proposals have
sought to restrict the availability of abortions. A few measures have been introduced to better
secure the right to terminate a pregnancy. The Freedom of Choice Act (FOCA), for example, was ^nd^rd
introduced and debated in both the 102 and 103 Congresses, but was never enacted. FOCA ^th
attempts to codify Roe legislatively, and was reintroduced in the 110 Congress. 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.
Since 1973, a series of constitutional amendments have been introduced in each Congress in an
attempt to overrule the Court’s decision in Roe. 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 ^th^th
the 94 Congress when nearly 80 amendments were introduced. By the 98 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 98^th 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 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 ¹²
amendment.
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 ^th
appropriate legislation.” One such bill, S. 158, introduced during the 97 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,
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 ^th
subcommittee, but that bill, S. 1741, had no further action in the 97 Congress.
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 which, in addition to

¹²^For^a^r^e^vⁱ^e^w^of^the^f^u^{ll de}^ba^te^on^S.J^.^R^e^s^.³^,^s^e^e¹²^{9 C}^ong^{. R}^e^c^.^S⁹⁰⁷⁶^et^seq^{. (da}^ily^e^d^{. J}^u^ne²⁷^,¹⁹⁸³^{); 1}²⁹^Co^ng^.
^Rec.^S⁹²⁶⁵^et^seq^{. (}^d^a^ily^e^d^{. J}^une^28,¹⁹⁸³^).

decriminalizing abortion, was seen as legitimizing the status of abortion as a medical procedure
for the purposes of the Medicaid program.
Since Roe, 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).
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 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 ^th
and incest or long-lasting physical health damage to the mother. However, from the 97 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 ^th
exception) failed in the 104 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 ^th
applied only to federal monies. The 104 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 ^th
prohibition was removed in 1993. However, the 104 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.
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 that would have prohibited the knowing transport of a minor across state lines for the ^th
purpose of obtaining an abortion was again introduced in the 110 Congress. The Child Interstate
Abortion Notification Act was introduced on February 15, 2007 by Representative Ileana Ros-
Lehtinen. The measure would have required a physician who performed or induced an abortion
on a minor who was a resident of a state other than the state in which the abortion was performed
to provide at least 24 hours written notice to a parent of the minor before performing the abortion.
A parent who suffered harm from a violation of the notice requirement could have obtained
appropriate relief in a civil action. The notice requirement would not have applied in certain
specified situations, including those where the abortion was necessary to save the life of the
minor because her life was endangered by a physical disorder, physical injury, or physical illness.

Legislation that would have required an abortion provider or his agent to provide specified
information to a pregnant woman prior to the performance of an abortion was also introduced.
The Unborn Child Pain Awareness Act was introduced by Senator Sam Brownback in the Senate
on January 22, 2007, (S. 356) and by Representative Christopher H. Smith in the House on
August 3, 2007 (H.R. 3442). Under the measure, an abortion provider or his agent would have
been required, prior to the performance of an abortion, to communicate specified information 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 have applied only when an abortion was being performed on a so-
called “pain-capable unborn child.” The term “pain-capable unborn child” was defined by the act
to mean “an unborn child who has reached a probable state of development of 20 weeks after
fertilization.” The requirements would not have applied during a medical emergency when
delaying the procedure would endanger the pregnant woman. Penalties for knowing violations of
the act would have included civil penalties. Under the Senate version of the measure, the
suspension or revocation of a medical license would also have been possible.
On April 19, 2007, in apparent response to the Court’s decision in Gonzales, the Freedom of
Choice Act was introduced in the House by Representative Jerrold Nadler and in the Senate by
Senator Barbara Boxer (H.R. 1964/S. 1173). The measure would have codified the Court’s
decision in Roe by stating that a government may not deny or interfere with a woman’s right to
choose to bear a child, to terminate a pregnancy prior to viability, or to terminate a pregnancy
after viability where termination is necessary to protect the life or health of the woman. The act
would have also authorized an aggrieved individual to obtain appropriate relief, including relief
against a government, in a civil action.
H.J.Res. 20, the Revised Continuing Appropriations Resolution, 2007, was enacted on February

15, 2007 (P.L. 110-5) and provided funding for various federal agencies for the remainder of ¹³

FY2007. Conditions attached to the availability of FY2006 funds, including those pertaining to
abortion, were made applicable to funds appropriated for FY2007 under H.J.Res. 20.
The FY2006 appropriations measures retained longstanding restrictions on the use of federal
funds for abortion and abortion-related services. H.R. 3057, the FY2006 Foreign Operations
appropriations measure (P.L. 109-102), provided that none of the appropriated funds could be
made available to an organization or program that supported or participated in the management of
a program of coercive abortion or involuntary sterilization. In addition, appropriated funds were
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 were not available to lobby for or
against abortion. To reduce reliance on abortion in developing nations, funds were available only
for voluntary family planning projects which offered a broad range of family planning methods
and services. Such voluntary family planning projects were required to meet specified
requirements.

¹³^For^a^dditi^ona^l^inf^o^r^m^a^{tion o}ⁿ^H^.^J^.^R^e^s^.^20,¹¹⁰^th^C^ong^{. (}²⁰⁰⁷⁾^{, s}^e^e^C^R^S^R^e^por^{t R}^L³³²⁸²^,^T^h^{e B}^u^d^g^et^f^o^{r F}ⁱ^sca^l
^Y^e^a^r²⁰⁰⁷^,^by^P^h^il^{ip D}^.^Wⁱ^nte^r^s^.

Contributions to the United Nations Population Fund (UNFPA) were conditioned on the entity not
funding abortions. In addition, amounts appropriated to the UNFPA under the measure were
required to be kept in an account that was separate from the UNFPA’s other accounts. The
UNFPA could not commingle funds provided under the measure with the entity’s other sums.
H.R. 2862, the FY2006 appropriations measure for the Departments of Commerce, Justice, and
State (P.L. 109-108), prohibited the use of funds to pay for abortions in the federal prison system
except in cases where the life of the mother would have been endangered if the fetus was 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 (P.L. 109-115), appropriated funds could 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 provided benefits or coverage for abortions. H.R. 3058 also prohibited the
use of appropriated and local funds to pay for abortions in the District of Columbia except where
the life of the mother would have been endangered if the fetus was carried to term or where the
pregnancy was the result of an act of rape or incest.
H.R. 3010, the FY2006 appropriations measure for the Departments of Labor, Health and Human
Services, and Education, and Related Agencies (P.L. 109-149), prohibited the use of funds,
including funds derived from any trust fund that received appropriations, for abortions except in
cases of rape or incest, or where a woman who suffered from a physical disorder, injury, or illness
would have her life jeopardized if an abortion was not performed. H.R. 3010 included the
nondiscrimination language that first appeared in the FY2005 appropriations provisions for the
Department of Health and Human Services. This language 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 subjected a health care entity to discrimination on the basis that
the entity did not provide, pay for, provide coverage of, or refer for abortions
On December 26, 2007, the President signed H.R. 2764, the Consolidated Appropriations Act,
2008 (P.L. 110-161). The measure provided FY2008 funds for all of the federal agencies except
the Department of Defense. The Department of Defense Appropriations Act, 2008, was enacted
separately on November 13, 2007 (P.L. 110-116).
Longstanding restrictions on the use of federal funds for abortion and abortion-related services
were again included in the FY2008 omnibus appropriations measure. For example, H.R. 2764
continued restrictions on 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 was carried to term or in
the case of rape. Subject to similar exceptions, H.R. 2764 continued other restrictions on the use
of appropriated funds to pay for the abortions of federal employees or for any administrative
expenses related to a health plan in the federal employees health benefits program that provided
benefits or coverage for abortions. H.R. 2764 also maintained nondiscrimination language that
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 subjected any institutional or
individual health care entity to discrimination on the basis that the entity did not provide, pay for,
provide coverage of, or refer for abortions.

Although H.R. 2764 was passed by the Senate with a provision that seemed to weaken the so-
called “Mexico-City policy,” such provision was removed from the final version of the measure.
The policy, first announced by President Reagan at the 1984 United Nations International
Conference on Population in Mexico City, requires foreign nongovernmental organizations to
agree as a condition of receiving federal funds to avoid performing or promoting abortion as a
method of family planning. The inclusion of the provision in the Senate-passed version of the bill
aroused controversy because it would have permitted foreign nongovernmental organizations to
receive federal funds and still perform or promote abortion with their own funds.
^J^o^{n O}^.^Shi^m^a^b^uk^ur^o
^L^e^gⁱ^s^l^at^iv^{e A}^t^torn^e^y
^j^s^hⁱ^m^a^b^u^ku^ro@^c^rs^.l^oc.g^o^v^{, 7-7990}