Federal Legislation Archives
Federal Legislation

Restrictions on Public Funding of Abortion

Although the Supreme Court guaranteed women’s constitutional right to have medical access to abortion in Roe, Congress has increasingly restricted federal funding of abortion services, most notably through the Hyde Amendment. Passed as part of appropriation bills in various forms, the basic purpose of the amendment is to prohibit the expenditure of federal funds on abortion except in cases of rape, incest or when necessary to save the life of the mother.

A related federal restriction on abortion funding is the Stupak-Pitts Amendment to the Patient Protection and Affordable Care Act (ACA). The amendment would have prohibited the use of federal funds “to pay for any abortion or to cover any part of the costs of any health plan that includes coverage of abortion,” with the same health-related exceptions as the Hyde Amendment. Although not included in the Senate’s version of the ACA, President Barack Obama incorporated a similar restriction into the health care reform law through Executive Order 13535 [PDF].
In July, 2015, a bill was introduced in the Senate that would prohibit any Federal funding of Planned Parenthood, a healthcare organization that provides abortions. Courts have blocked similar State laws on the grounds that abortion clinics also provide a host of other medical services. No further actions have been taken on the Senate bill since its introduction.

Partial-Birth Abortion Ban Act

In 2003, President George W. Bush signed the Partial-Birth Abortion Ban Act into law, which explicitly banned the practice of so-called “partial-birth” abortion, or dilation and extraction (D&X) abortions. D&X abortions are defined in the legislation as:

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; and performs the overt act, other than completion of delivery, that kills the partially delivered living fetus.

Since the law’s passage, the Supreme Court has issued several rulings further defining its legal scope.

The constitutionality of the Partial-Birth Abortion Ban Act was challenged immediately after its signing, and three US District Courts subsequently declared the act unconstitutional and issued injunctions preventing the law’s enforcement. However, the district court injunctions were ultimately overturned by the Supreme Court in their 2007 decision in Gonzales v. Carhart. The Court ruled by a 5-4 vote that Congress’s ban on D&X abortion was not unconstitutionally vague and did not impose an undue burden on the fundamental right of women to obtain an abortion, under the controlling precedents of the Court’s prior decisions in Roe and Casey. The Court held that fetal life should be protected unless it created an undue burden on a woman’s constitutional right to have an abortion. Legally, the case distinguished the Court’s 2000 decision in Stenberg v. Carhart, which struck down a Nebraska partial-birth abortion law that was held to be more ambiguous than the statute in Gonzales. In Stenberg, the Nebraska law would have forced physicians to risk criminal charges for performing unauthorized abortions, thereby infringing on their right to select the safest medical treatment for their patients. In Gonzalez, however, the substantial governmental interest of protecting life, combined with congressional findings that D&X abortions are not medically necessary, led the Court to conclude that a health exception was not necessary.

Following the decision to uphold the federal prohibition in Gonzales, the issue of D&X abortions has been relegated to state legislatures. The virulence of the issue has not abated in the years since the federal ban took effect. In June 2012, the New Hampshire legislature overrode a veto from Governor John Lynch to adopt a statewide ban of D&X abortions. The issue has continued to be the subject of federal litigation. In a number of these subsequent cases involving D&X abortion statutes, courts have consistently rejected arguments that such laws are not governed by the precedent of Roe and Casey because the statutes outlaw a form of infanticide, rather than proscribe a method of abortion. JURIST Guest Columnist Richard Garnett argues that this distinction between infanticide and D&X abortion is purely academic:

Reasonable people can, and already do, disagree about whether the federal Act can really be distinguished from the Nebraska law that a different 5-4 majority struck down . . . in Stenberg v. Carhart, (In my view, the Court would have done better simply to reverse, as wrongly decided, that decision.) For present purposes, though, it is enough to endorse the decision’s bottom line: Nothing in our constitutional text, history, or traditions disables the American people from democratically affirming — albeit imperfectly — our commitment to decency and human dignity by rejecting partial-birth abortion.