Abortion in the United States
Abortion Historic Definition
The expulsion of the foetus at a period of utero gestation so early that it has not acquired the power of sustaining an independent life. It may be either innocent, as when accidental, or criminal. Criminal abortion is the willful production of the miscarriage of a pregnant woman, whether by the administration of drugs, or the use of instruments, or other means, the same not being necessary to save her life. At common law, the woman must have been quick with child (…), but this is no longer necessary (…). It is an aggravation of the offense, and in some states constitutes manslaughter, if the death of the woman is produced. (1)
Executive Order 13535
Executive Order in relation with the Patient Protection and Affordable Care Act’s Consistency with Longstanding Restrictions on the Use of Federal Funds for Abortion (March 24, 2010):
“By the authority vested in me as President by the Constitution and the laws of the United States of America, including the “Patient Protection and Affordable Care Act” (Public Law 111-148), I hereby order as follows:
Section. 1. Policy. Following the recent enactment of the Patient Protection and Affordable Care Act (the “Act”), it is necessary to establish an adequate enforcement mechanism to ensure that Federal funds are not used for abortion services (except in cases of rape or incest, or when the life of the woman would be endangered), consistent with a longstanding Federal statutory restriction that is commonly known as the Hyde Amendment. The purpose of this order is to establish a comprehensive, Government-wide set of policies and procedures to achieve this goal and to make certain that all relevant actors — Federal officials, State officials (including insurance regulators) and health care providers — are aware of their responsibilities, new and old.
The Act maintains current Hyde Amendment restrictions governing abortion policy and extends those restrictions to the newly created health insurance exchanges. Under the Act, longstanding Federal laws to protect conscience (such as the Church Amendment, 42 U.S.C. 300a-7, and the Weldon Amendment, section 508(d)(1) of Public Law 111-8) remain intact and new protections prohibit discrimination against health care facilities and health care providers because of an unwillingness to provide, pay for, provide coverage of, or refer for abortions.
Numerous executive agencies have a role in ensuring that these restrictions are enforced, including the Department of Health and Human Services (HHS), the Office of Management and Budget (OMB), and the Office of Personnel Management.
Sec. 2. Strict Compliance with Prohibitions on Abortion Funding in Health Insurance Exchanges. The Act specifically prohibits the use of tax credits and cost-sharing reduction payments to pay for abortion services (except in cases of rape or incest, or when the life of the woman would be endangered) in the health insurance exchanges that will be operational in 2014. The Act also imposes strict payment and accounting requirements to ensure that Federal funds are not used for abortion services in exchange plans (except in cases of rape or incest, or when the life of the woman would be endangered) and requires State health insurance commissioners to ensure that exchange plan funds are segregated by insurance companies in accordance with generally accepted accounting principles, OMB funds management circulars, and accounting guidance provided by the Government Accountability Office.
I hereby direct the Director of the OMB and the Secretary of HHS to develop, within 180 days of the date of this order, a model set of segregation guidelines for State health insurance commissioners to use when determining whether exchange plans are complying with the Act’s segregation requirements, established in section 1303 of the Act, for enrollees receiving Federal financial assistance. The guidelines shall also offer technical information that States should follow to conduct independent regular audits of insurance companies that participate in the health insurance exchanges. In developing these model guidelines, the Director of the OMB and the Secretary of HHS shall consult with executive agencies and offices that have relevant expertise in accounting principles, including, but not limited to, the Department of the Treasury, and with the Government Accountability Office. Upon completion of those model guidelines, the Secretary of HHS should promptly initiate a rulemaking to issue regulations, which will have the force of law, to interpret the Act’s segregation requirements, and shall provide guidance to State health insurance commissioners on how to comply with the model guidelines.
Sec. 3. Community Health Center Program. The Act establishes a new Community Health Center (CHC) Fund within HHS, which provides additional Federal funds for the community health center program. Existing law prohibits these centers from using Federal funds to provide abortion services (except in cases of rape or incest, or when the life of the woman would be endangered), as a result of both the Hyde Amendment and longstanding regulations containing the Hyde language. Under the Act, the Hyde language shall apply to the authorization and appropriations of funds for Community Health Centers under section 10503 and all other relevant provisions. I hereby direct the Secretary of HHS to ensure that program administrators and recipients of Federal funds are aware of and comply with the limitations on abortion services imposed on CHCs by existing law. Such actions should include, but are not limited to, updating Grant Policy Statements that accompany CHC grants and issuing new interpretive rules.”
Abortion and the Constitution
According to theEncyclopedia of the American Constitution, abortion legislation rarely, if ever, demonstrates concern for the well-being of women. It usually represents the state using coercive measures to persuade women to bear children rather than have abortions.
Medicaid: Hyde Amendment
Effective November 13, 1997, as part of the Department of Labor, Health and Human Services, and Education and Related Agencies Appropriations Act, 1998, Public Law Number 105-78 (1997), Congress passed a revision of the Hyde Amendment pertaining to Federal funding of abortions under the Medicaid program. As enacted in section 509, the provision states:
(a) None of the funds appropriated under this Act shall be expended for any abortion.
(b) None of the funds appropriated under this Act shall be expended for health benefits coverage that includes coverage of abortion.
(c) The term health benefits coverage’ means the package of services covered by a managed care provider or organization pursuant to a contract or other arrangement.
Section 510 continues as follows:
(a) The limitations established in the preceding section shall not apply to an abortion–
(1) if the pregnancy is the result of an act of rape or incest; or
(2) In the case where a woman suffers from a physical disorder, physical injury, or physical illness, including a life-endangering physical condition caused by or arising from the pregnancy itself that would, as certified by a physician place the woman in danger of death unless an abortion is performed.
(b) Nothing in the preceding section shall be construed as prohibiting the expenditure by a State, locality, entity, or private person of State, local, or private funds (other than a State’s or locality’s contribution of Medicaid matching funds).
(c) Nothing in the preceding section shall be construed as restricting the ability of any managed care provider from offering abortion coverage or the ability of a State or locality to contract separately with such a provider for such coverage with State funds (other than a State’s or locality’s contribution of Medicaid matching funds).
Later regulations at 42 CFR 441.203 and 441.206 required that before Federal financial participation (FFP) can be made available, the State must obtain a signed physician’s certification that, based on the professional judgment of the physician, the abortion was necessary to save the life of the mother. Because the language of the current Hyde Amendment differs from its predecessors (by requiring that the abortion be necessary due to a physical disorder, injury, or illness, including a life-endangering physical condition caused by or arising from the pregnancy itself, that would place the woman in danger of death unless an abortion is performed) the State must change the wording of the physician’s certification to comport with the current statutory language.
As with the language in effect since October 1, 1993, the revised Hyde Amendment provides for funding for abortions if the pregnancy is the result of an act of rape or incest. All abortions covered by the Hyde Amendment, including those abortions related to rape or incest, are medically necessary services and are required to be provided by states participating in the Medicaid program. States may continue to impose reasonable reporting or documentation requirements on recipients or providers as may be necessary to assure them that an abortion was for the purpose of terminating a pregnancy caused by an act of rape or incest. However, those reporting or documentation requirements may not serve to deny or impede coverage for abortions. To insure that reporting requirements do not prevent or impede coverage for these covered abortions, any such reporting requirements must be waived and the procedure considered being reimbursable if the treating physician certifies that in his or her professional opinion, the patient was unable, for physical or psychological reasons, to comply with the requirements.
The Hyde Amendment language precludes payment for any “health benefits coverage” that includes abortions other than those specifically permitted by the terms of the Hyde Amendment. Therefore, a managed care provider or organization that provides abortions in addition to those reimbursed under the Hyde Amendment pursuant to a contract or other arrangement with the Medicaid agency are not eligible for any Federal funding for any of the services covered by that contract or arrangement. If a state wishes to reimburse managed care providers or organizations to provide additional abortions, it must do so under a separate contract or arrangement using monies unrelated to Federal, state or local Medicaid matching dollars. However, this should not be construed as restricting the ability of any managed care provider to offer abortion coverage or the ability of a State or locality to contract separately with such a provider for such coverage with State funds (other than a state’s or locality’s contribution of Medicaid matching funds).
It is necessary for States to adhere to all conditions for Federal Medicaid funding.
Abortion in State Statute Topics
Abortion, Sexual Behaviour and the Law
The United States Abortion Laws
General information on the United States laws and regulations pertaining to abortion in the United States, such as physician licensing requirements in the United States and the determination of when a fetus is considered “viable”. See the information on the anti-abortion movement in the U.S. legal encyclopedia.
Resources
Notes
- This definition of Abortion Is based on the The Cyclopedic Law Dictionary .