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Abortion: Legislative Response

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Publication Date: June 2007

Publisher(s): Library of Congress. Congressional Research Service

Series: RL33467

Topic: Law and ethics (Health law)

Abstract:

In 1973, the U.S. Supreme Court held that the U.S. Constitution protects a woman's decision whether to terminate her pregnancy, Roe v. Wade, 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. Rather than settle 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.

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 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 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 24-hour parental notification requirement for abortions occurring outside a minor's state of residence.

Since Roe, 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. This report replaces CRS Issue Brief IB95095, Abortion: Legislative Response, by Jon O. Shimabukuro and Karen J. Lewis.