Laws Enacted By Congress
LAWS ENACTED BY CONGRESS
While most of the laws relating to abortion are enacted by the individual states, over the years the United States Congress has passed some laws affecting the provision of abortion services. Below is a summary of those laws:
First enacted in 1977, the “Hyde Amendment” (named after pro-life Congressman Henry Hyde of Illinois) restricted the use of federal Medicaid dollars for abortions, essentially declaring that poor women could not have the government pay for their abortions unless their life was endangered. The amendment was regularly attached to the annual Labor-HEW Appropriations bill and in the early years, the debate on the issued tied up the Congress for weeks on end as progressives sought to expand the exceptions for women. In 1980, the U.S. Supreme Court held in Harris v McCrae that the restrictions were constitutional.
For many years, the Congress enacted the Hyde Amendment allowing only for an exception when the woman’s life was endangered. In 1993, however, Representative Barbara Boxer offered a proposal allowing such abortions in the case of rape and incest and, in the first pro-choice victory in many years in Congress, the proposal passed and in subsequent years those additional exceptions were incorporated in the Hyde Amendment. At this point, this measure has not been challenged in years.
UNBORN VICTIMS OF VIOLENCE ACT (“Laci and Conner’s Law”)
This law (P.L. 108-212) states that if a woman is pregnant and dies as a result of a murder, manslaughter or homicide, the offender can be also charged for killing the “child in utero.” The offender does not need to have prior knowledge of the pregnancy in order to be prosecuted. The law applies only in cases when the act took place during the commission of the approximately 60 federal crimes of violence. It does not apply to crimes prosecuted by the individual states, although at this point 36 states also recognize the fetus or “unborn child” as a crime victim at least for purposes of a homicide or feticide.
The legislation was hailed by pro-life groups who interpreted the measure as a step toward granting legal “personhood” to human fetuses, even though the bill explicitly contained a provision excepting abortion (the bill would not “be construed to permit the prosecution of any person for any medical treatment of the pregnant woman or her unborn child” or “of any woman with respect to her unborn child.”)
The measure was strongly opposed by most pro-choice organizations who argued that the Roe v Wade decision said that the human fetus was not a “person” under the Fourteenth Amendment to the Constitution. In subsequent years, legal challenges to these laws that were based on Roe have been uniformly rejected by both the federal and the state courts, including the Supreme Courts of California, Pennsylvania, and Minnesota. Indeed, some prominent pro-choice legal scholars, such as Professor Walter Dellinger of Duke University Law School, Richard Parker of Harvard, and Sherry F. Colb of Rutgers Law School, have written that fetal homicide laws do not conflict with Roe.
For a copy of the legislation, go to:
“PARTIAL BIRTH ABORTION BAN ACT “ (2003)
Perhaps no legislation ever considered by the U.S. Congress has engendered so much debate as the “Partial Birth Abortion Ban Act.”
Legislation banning this procedure (pro-choice groups argue the term “partial birth abortion” is not found in any medical literature) was first introduced by Representative Charles Canady (FL) and Senator Bob Smith (NH) in 1995. The bill stated that a doctor who knowingly performs this operation shall be fined and be put in jail for no more than 2 years. It defines the procedure as one in the fetus is extracted “past the navel [of the fetus]… outside the body of the mother,” or “in the case of head-first presentation, the entire fetal head is outside the body of the mother,” if the fetus has already passed.
Beginning in 1995, the Congress considered the measure several times and they passed it by wide margins during the Clinton Administration. Indeed, several pro-choice members of Congress supported the ban. However, Clinton vetoed those bills in April 1996 and October 1997 on the grounds that they did not include health exceptions. Subsequent congressional attempts at overriding the veto were unsuccessful.
When President Bush took office, the Congress again passed the measure and he signed it into law on November 5, 2003.
“FREEDOM OF ACCESS TO CLINIC ENTRANCES ACT” (FACE)
On May 17, 1994, in response to the escalating violence against abortion doctors and their clinics, President Bill Clinton signed the FACE act into law at a ceremony at the White House. In attendance was David Gunn, Jr., whose father – an abortion doctor – was murdered by a pro-life activist in Pensacola just a year earlier.
The FACE act was originally introduced by Representative Mel Levine (CA) and Senator Alan Cranston (CA), passed the Senate on Nov 16, 1993 by a 69-30 vote. It then passed the House of Representatives by a 237-169 vote
prohibits people from using threats, violence, obstructions, or intimidation to prevent people from entering reproductive health facilities or obtaining services at these facilities
prohibits the use of threats, violence, or intimidation against people exercising their first amendment or religious rights
prohibits people from damaging facilities because they offer reproductive health services;
prohibits people from damaging places of religious worship;
protects a protestor’s right to free speech in that the protestor could conduct peaceful protest, including singing hymns, praying, carrying signs, walking picket lines and distributing antiabortion materials outside of clinics. It also allows shouting outside of clinics, as long as no threats are made and the noise level does not exceed the legal levels as defined by state and local laws.
Courts have routinely rebuffed these constitutional challenges, and the U.S. Supreme Court has consistently refused to hear any challenges to FACE. Within less than a decade after it became law, FACE’s constitutionality under the First Amendment and Commerce Clause has been considered a settled legal issue. Meanwhile, records indicate that the Obama Justice Department has filed six lawsuits under the Freedom of Access to Clinic Entrances Act, mostly to seek injunctions and fines. That compares with just one such lawsuit during the entire eight years of George W. Bush. Since Obama’s inauguration, federal lawsuits have been filed against a woman who blocked a car from entering a clinic in West Palm Beach, Fla.; a Texas man who threw his body across the door of a patient waiting area in San Antonio; and a Pennsylvania man who posted on the Internet the names and addresses of abortion providers and extolled his readers to kill them.
Throughout most of the 1970s, women serving in the military could use their insurance plans to cover abortion without restrictions. In 1981, however, the U.S. Congress banned military abortion coverage in all cases except when a pregnancy endangered the life of the mother, and the measure became permanent law in 1984. Interestingly, federal workers, rape victims in federal prisons or women who use Medicaid can use their insurance to pay for abortions in cases of rape and incest as well.
On November 30, 2011, Sen. Jeanne Shaheen (D-N.H.) proposed an amendment to the 2012 National Defense Authorization Act that would allow abortions for military women in cases of rape and incest. But a vote on the amendment was denied when it was ruled non-germane to the primary bill. Earlier in the year, the House Rules Committee blocked a similar Democrat-sponsored amendment from reaching a vote.
In 2009, when the Congress was considering President Obama’s “Affordable Health Care for America” Act, questions were raised about whether or not the federal government would pay for abortion services under the new plan. Pro-life Democrats, who generally supported the legislation, expressed concern that they might not be able to support it because they did not want federal dollars to be used for abortions. Representative Bart Stupak (D-MI) was the leader of the group that threatened to vote against the bill.
On November 7, Stupak offered an amendment to the bill to prohibit the health care bill from are reform bill from subsidizing coverage of elective abortions. The amendment was adopted 240 to 194, with the support of 64 Democrats. The amendment, however, was never adopted by the Senate.
Still, President Obama felt the need to assuage pro-life Democrats that federal funds would not be used for abortions so, on March 24, 2010, he signed Executive Order 13535 dealing with abortion funding in the health care reform bill. This Order made clear that federal funds would not be used for an abortion except in cases of life endangerment, rape or incest, thus keeping in line with the “Hyde Amendment.” After the Order was signed, Rep. Stupak and others agreed to vote for the bill. Despite the Executive Order, pro-lifers were still assured that funds would not be used for abortions. Meanwhile, pro-choice groups were not happy that Obama had confirmed that federal funds could not be used for abortions.
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