Abortion: Judicial History and Legislative Response: A Compendium

This collection of seven in-depth Congressional Research Service studies provides an overview of abortion law development and a judicial history with its related legislative responses. It provides details on the abortion-related provisions in the Patient Protection and Affordable Care Act. Legal developments relating to partial-birth abortion are covered. Abortion services provided by military medical facilities are described. Substantial information relating to health care providers’ religious objections to medical treatment is supplemented by a history of abortion conscience clause laws.

Since the U.S. Supreme Court’s 1973 decision in Roe v. Wade, there have been numerous efforts in Congress to restrict the availability of abortion through proposed constitutional and statutory amendments, and through funding restrictions attached to appropriations and authorizations measures. Some legal scholars contend that Congress cannot overrule the Supreme Court’s conclusion that a “person” does not include the unborn. Such a change, they argue, would require a constitutional amendment.

The use of federal funds to pay for abortions either directly or indirectly has been a contentious issue in past Congresses. For example, the question of whether abortions should be performed at military facilities has been considered in the past and may arise again. Longstanding funding restrictions related to abortion have been included annually in various appropriations and authorizations measures. These restrictions are often controversial, and efforts to remove them have occurred in recent Congresses. For example, the so-called Dornan Amendment, which restricted the use of District of Columbia funds to pay for abortions sought by low-income women, was not included in the FY2010 appropriations for the District. The Dornan Amendment had been included in the annual appropriations measures for the District since 1988.

The annual foreign operations appropriations measure also includes funding restrictions related to abortion. Two issues in particular—the Mexico City policy involving funding for foreign nongovernmental organizations, and restrictions on funding for the U.N. Population Fund (UNFPA) because of its alleged activities in China—have remained controversial and continue to be featured prominently in the family planning and abortion debate.

The abortion provisions in PPACA were particularly controversial during consideration of the measure. Under PPACA, 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. However, to ensure that funds attributable to such a credit or subsidy are not used to pay for elective abortion services, PPACA prescribes payment and accounting requirements for plan issuers and enrollees. PPACA indicates that an issuer of a qualified health plan that provides coverage for elective abortions cannot use any funds attributable to a premium tax credit or cost-sharing subsidy to pay for such services. The issuer of a qualified health plan that provides coverage for elective abortions will be required to collect two separate payments from each enrollee in the plan: one payment that reflects an amount equal to the portion of the premium for coverage of health services other than elective abortions; and another payment that reflects an amount equal to the actuarial value of the coverage for elective abortions. The plan issuer will be required to deposit the separate payments into separate allocation accounts that consist solely of each type of payment and that are used exclusively to pay for the specified services. 

Date of Compendium: October 7, 2011
Number of Pages: 116
Order Number: IS30381
Price: $39.95. Subscribers to Congressional Research Report pay $19.97


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