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Federal Profile
ANTI-CHOICE LAWS
Abortion Ban
BAN ON ABORTION PROCEDURE
Federal law outlaws certain second-trimester abortions, without an exception to protect a woman's health. 18 U.S.C.A § 1531 (2003).
In 2003, President Bush became the first president ever to criminalize safe, medically appropriate abortion when he signed into law the Federal Abortion Ban, called by its anti-choice sponsors the "Partial Birth Abortion Ban Act of 2003." The federal law makes the performance of certain previability, second trimester abortions a felony and imposes a criminal penalty of up to two years in prison. 18 U.S.C.A. § 1531 (2003).
Six federal district and appellate courts declared the law unconstitutional. Carhart v. Ashcroft, 287 F. Supp. 2d 1015 (D. Neb. 2004), aff'd sub nom. Carhart v. Gonzales, 413 F.3d 791 (8th Cir. 2005), rev'd, 127 S.Ct. 1610 (2007); Nat'l Abortion Fed'n v. Gonzales, 287 F. Supp. 2d 525 (S.D.N.Y. 2003), aff'd, Nat'l Abortion Fed'n v. Gonzales, 437 F.3d 278, (2d Cir. 2006), vacated by 127 S.Ct. 1610 (2007); Planned Parenthood Fed'n of Am. v. Gonzales, 320 F. Supp. 2d 957 (N.D. Cal. 2004), aff'd, Planned Parenthood Fed'n of Am. v. Gonzales, 435 F.3d 1163, (9th Cir. 2006), rev'd, 127 S.Ct. 1610 (2007). The courts found the ban unconstitutional in part because, like a very similar Nebraska law the U.S. Supreme Court struck down in 2000, the ban had no exception to protect women's health. Stenberg v. Carhart, 530 U.S. 914 (2000). Several of the courts also found that the ban's language was overbroad and potentially outlawed the most common second-trimester procedures.
The Bush administration asked the U.S. Supreme Court to review the Eighth and Ninth Circuit decisions and in April 2007, the Court overturned the decisions of the lower courts and declared the ban constitutional. Gonzales v. Carhart and Gonzales v. Planned Parenthood Federation of America, 127 S.Ct. 1610 (2007). The Court interpreted the ban to be limited to a single procedure, and based on that construction, found that a health exception was not constitutionally required. As a federal law, the ban applies nationwide, regardless of state law.
Insurance Prohibition for Abortion
FEDERAL EMPLOYEES
Every year since 1995, Congress has passed a spending bill that contains language barring federal employees from choosing a health plan that provides insurance coverage for abortion. The only exception is when the life of the woman would be endangered if the pregnancy were carried to term or where the pregnancy is the result of rape or incest. Making further continuing appropriations for the fiscal year 2007, and for other purposes, H.R.J. Res. 102, 109th Cong. (2006) (signed by President Bush); Transportation, Treasury, Housing and Urban Development, the Judiciary, The District of Columbia, and Independent Agencies Appropriations Act, 2006, Pub. L. No. 109-115, 119 Stat. 2396 (2005).
Retired and current military personnel and their dependents are also prohibited from obtaining coverage for abortion care through military health plans, even if a pregnancy resulted from an act of rape or incest. The plans only allow a narrow exception for abortion coverage where the life of the woman would be endangered if the pregnancy were carried to term. 10 U.S.C.A. § 1093(a) (Enacted 1984). See also 32 C.F.R. § 199.4(e)(2) (Department of Defense's Civilian Health and Medical Program of the Uniformed Services (CHAMPUS)); 32 C.F.R. § 728.31(d)(9) (Department of the Navy, Retired Members and Dependents of the Uniformed Services); 38 C.F.R. § 17.272(a)(67) (Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPVA)); 38 C.F.R. § 17.38(c)(1) (Department of Veterans Affairs Medical Enrollment Provisions and Medical Benefits Package).
NON-FEDERAL EMPLOYEES
Health insurance plans for non-federal employees are not required to provide coverage for abortion care except where the life of the woman is endangered. 42 U.S.C.A. § 2000e(k) (Original Statute Enacted 1964; Relevant Provision Enacted 1978). If an employer decides to cover the cost of abortion, it must do so in the same manner and to the same degree that it covers other medical conditions. 29 C.F.R. Pt.1604, App. (EEOC Guidelines) (Q & A 35, 37).
Although an employer's insurance plan is not required to cover the cost of abortion care (except in the case of life endangerment), any other medically related fringe benefits, such as sick leave, which are provided for other medical conditions, must also be provided for abortion care. 29 C.F.R. Pt.1604, App. (EEOC Guidelines) (Q & A 35).
Refusal to Provide Medical Services
The United States allows certain individuals or entities to refuse to provide women specific reproductive health services, information or referrals.
The Federal Refusal Clause, passed every year by Congress as part of a massive spending bill, provides that none of the funds can go to a government agency or program that discriminates against a health care entity that does not provide, pay for, provide coverage of, or refer for abortions. This language protects health care entities that refuse to provide a full range of reproductive services. Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act, Fiscal Year 2006, Pub. Law 109-149, Nov. 30, 2005 (Enacted Annually Since 2004).
The federal government also protects health care entities that refuse to train medical professionals to perform abortions, refuse to require abortion training, or refuse to provide referrals for abortion training. 42 § U.S.C.A. 238n(a) (Enacted 1996).
In 2005, the State of California filed suit in federal court challenging the constitutionality of the Weldon Amendment. However, the court dismissed the case for lack of standing and ripeness. State of Cal. v. U.S., No. C 05-00328 JSW, slip op. (N. D. Cal. Mar. 19, 2008).
Restrictions on Low-Income Women's Access to Abortion
Several federal laws, most notably the Hyde amendment, bar access to abortion care for most low-income women who rely on the federal government for their health care. Women affected by these bans include clients of Medicaid and Medicare, the State Children's Health Insurance Program, and the District of Columbia's public health care programs.
As per the Hyde amendment, none of the funds appropriated by Congress may be used for abortion, unless the woman's life is in danger, or if the pregnancy is the result of an act of rape or incest. Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act, 2006, Pub. L. 109-149, 119 Stat. 2833 (2005) (Enacted Annually Since 1977).
While all 50 states have the option of providing state funding for abortion services, the District of Columbia's use of its own funds is dictated by Congress through the appropriations process. It thus is limited in how it can provide abortion care to its low-income residents. Currently, the District cannot even use its own privately raised funds to provide abortion care to its low-income residents. Transportation, Treasury, Housing and Urban Development, the Judiciary, The District of Columbia, and Independent Agencies Appropriations Act, 2006, Pub. L. No. 109-115, 119 Stat. 2396 (2005) (Enacted Annually Since 1979).
Restrictions on Women in the Military's Access to Abortion
Under federal law, no funds made available to the Department of Defense (DoD) may be used for abortion, except when a woman's life is in danger. Federal law also states that women in the military (and military dependents) cannot receive abortion services at Department of Defense medical facilities (including military facilities overseas)-even if the procedure is entirely paid for with a woman's own funds. The only exceptions to this restriction are if the life of the woman would be endangered if the pregnancy were carried to term, or if the pregnancy is the result of an act of rape or incest. 10 U.S.C.A. § 1093 (Enacted 1984).
PRO-CHOICE LAWS
Contraceptive Equity
Federal law requires federal employee health insurance plans that cover prescription drugs to provide the same coverage for contraception.
What is required? Health-care plans in the Federal Employee Health Benefits program must cover FDA-approved prescription contraceptives to the same extent that they cover other prescription drugs.
To which insurance plans does the law apply? Health-care plans participating in the Federal Employee Health Benefits program that provide coverage for prescription drugs.
Does the law contain a refusal clause, allowing certain employers and/or insurers to refuse to provide or pay for contraceptive coverage? Yes.
To whom does the refusal clause apply? Religious health insurance companies, specifically Personal Care's HMO and OSF HealthPlans, Inc., and any other carrier that objects to providing such coverage based on its religious beliefs.
What does the refusal clause allow? A religious health insurance company may exclude itself from this law.
Is this refusal clause overbroad, jeopardizing insurance coverage for contraception for women? No.
Does the law require the refusing entity to notify the persons affected? No.
Are there circumstances under which a refusal clause may not be exercised? No.
Does the law provide a mechanism for women to obtain contraceptive coverage if their employer exercises a refusal clause? No.
Has a court considered the constitutionality of this law? No.
Transportation, Treasury, Housing and Urban Development, the Judiciary, The District of Columbia, and Independent Agencies Appropriations Act, 2006, Pub. L. No. 109-115, 119 Stat. 2396 (2005) (Enacted Annually Since 1998).
Emergency Contraception
PHARMACY ACCESS TO EMERGENCY CONTRACEPTION (EC)
In 2006, after three years of political posturing, the U.S. Food and Drug Administration finally approved over-the-counter access to the emergency contraceptive Plan BA for individuals ages 18 and older. Plan BA, also known as the "morning-after" pill, can substantially reduce a woman's chance of becoming pregnant after unprotected sex. Under the FDA's decision, women ages 17 and younger will still need a prescription to obtain Plan BA at a pharmacy.
Press Release, U.S. Food and Drug Administration, FDA Approves Over-the-Counter Access for Plan B for Women 18 and Older; Prescription Remains Required for Those 17 and Under (Aug. 24, 2006).
Low-Income Women's Access to Family Planning
Title X of the Public Health Service Act provides federal grant money to family planning clinics that provide comprehensive reproductive-health services to low-income women, uninsured women, and women who fail to qualify for Medicaid. For many women, Title X clinics provide the only basic health care that they receive.
Each year, approximately 5 million young and low-income women and men receive basic health care through the 4,400 clinics nationwide receiving Title X funds. Grants are administrated through state health departments or regional umbrella agencies which subcontract to local agencies.
Besides providing contraceptive methods, counseling, and education, family-planning clinics offer many other reproductive-health services. They provide screening for breast cancer, cervical cancer, and sexually transmitted diseases; Pap tests; breast and pelvic exams; hypertension and blood-pressure measurement; as well as prenatal, postpartum and well-baby care.
The Title X program also sponsors continuing-education programs for family-planning clinicians each year. In addition, the program maintains a clearinghouse for information and educational materials on family planning and reproductive health, and supports a research program which focuses on family-planning service delivery improvements. Office of Population Affairs (OPA), U.S. Department of Health and Human Service3s (HHS), Office of Family Planning, at http://opa.osophs.dhhs.gov/titlex/ofp.html (last visited Dec. 5, 2008).
Women with incomes at or below the poverty level receive fully subsidized services; women with incomes over 100 but less than 250 percent of the poverty level are charged on a sliding scale; and women with incomes over 250 percent of poverty must be charged full fees. AGI, Issues in Brief: Title X ad the U.S. Family Planning Effort, at 2 & 4; see also 45 Fed. Reg. 108 (1980) (codified at 42 C.F.R. § 59.5(7), (8), § 59.2).
Protection Against Clinic Violence
The Freedom of Access to Clinic Entrances Act (FACE), enacted in 1994, prohibits a range of violent, obstructive, and threatening activities intended to interfere with the provision of reproductive health services. FACE prohibits: 1) using force, threat of force, or physical obstruction to intentionally injure, intimidate, or interfere with anyone obtaining or providing reproductive health services; and 2) intentionally damaging or destroying the property of a facility because the facility provides reproductive-health services.
The statute provides both criminal penalties, including imprisonment and fines, and civil remedies, including injunctive relief, damages, and attorneys' fees. Repeat violators are subject to increased penalties.
18 U.S.C.A. § 248 (enacted 1994).
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