Jon O. Shimabukuro
Legislative Attorney
In1973, 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 Doev. Bolton, a companion decision, the Court found that a state may notunduly burden the exercise of that fundamental right with regulations thatprohibit or substantially limit access to the means of effectuating thedecision to have an abortion. Rather than settle the issue, the Court’srulings since Roe and Doe have continued to generate debateand have precipitated a variety of governmental actions at the national, state,and local levels designed either to nullify the rulings or limit theireffect. These governmental regulations have, in turn, spawned furtherlitigation in which resulting judicial refinements in the law have been nomore successful in dampening the controversy.
In recent years, the rights enumerated in Roe have been redefined bydecisions such as Webster v. Reproductive Health Services, whichgave greater leeway to the states to restrict abortion, and Rust v.Sullivan, which narrowed the scope of permissible abortion-relatedactivities that are linked to federal funding. The Court’s decision in PlannedParenthood of Southeastern Pennsylvania v. Casey, which establishedthe “undue burden” standard for determining whether abortion restrictionsare permissible, gave Congress additional impetus to move on statutory responsesto 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 examplesof Congress restricting the performance of a medical procedure. Legislationthat would prohibit the knowing transport of a minor across state lines for thepurpose of obtaining an abortion has been introduced in numerousCongresses.
Since Roe, Congress has attached abortion funding restrictions tovarious appropriations measures. The greatest focus has arguably been onrestricting Medicaid abortions under the annual appropriations for theDepartment of Health and Human Services. This restriction is commonlyreferred to as the “Hyde Amendment” because of its original sponsor. Similar restrictionsaffect the appropriations for other federal entities, including the Departmentof Justice, where federal funds may not be used to perform abortions inthe federal prison system, except in cases of rape or if the life of themother would be endangered. Hyde-type amendments also have an impact inthe District of Columbia, where federal funds may not be used to perform abortionsexcept in cases of rape, incest, or where the life of the mother would beendangered, and affect international organizations like the United NationsPopulation Fund, which receives funds through the annual ForeignOperations appropriations measure.
The debate over abortion continued in the context of health reform. The PatientProtection and Affordable Care Act (ACA or PPACA), enacted on March 23,2010, includes provisions that address the coverage of abortion servicesby qualified health plans that will be available through health benefitexchanges beginning in 2014. ACA’s abortion provisions have been controversial, particularlywith regard to the use of premium tax credits or cost-sharing subsidies toobtain health coverage that includes coverage for elective ornon-therapeutic abortion services. Under ACA, individuals who receive apremium tax credit or cost-sharing subsidy will be permitted to select aqualified health plan that includes coverage for elective abortions, subject tofunding segregation requirements that will be imposed on both the planissuer and the enrollees in such a plan.
Date of Report: January 8, 2013
Number of Pages: 21
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