Rights do not exist in a vacuum. It is important to know their history and context. What follows is a brief history of U.S. Supreme Court rulings on abortion, and how Congress passed the Helms Amendment and Hyde Amendment to limit access to abortion in the United States and abroad.

Abortion is among the most common medical procedures in America. Approximately 1.3 million abortions are performed each year. The mortality rate for childbirth is 8.8 deaths per 100,000, while the mortality rate for abortion is 0.6 deaths per 100,000. That means the risk of death from childbirth is approximately fourteen times higher than the risk of death from an abortion.1

The Watershed—Roe v. Wade

Historically, the law made abortion a type of murder. That changed in 1973 with Roe v. Wade.2 “Jane Roe” (Norma Corvey) challenged Texas abortion law which, like most state laws at that time, prohibited abortion except upon “medical advice for the purpose of saving the life of the mother.”3 The Supreme Court held a fetus is not a “person” under the Constitution, and therefore, anti-abortion laws were an unconstitutional invasion of a woman’s right to privacy, specifically, the right to control her own body.

A fetus takes 39-40 weeks to develop, and medicine divides pregnancy into three “trimesters” or periods of 13 weeks each. A fetus becomes “viable” after two trimesters, meaning it can survive outside the womb with aggressive intervention by doctors. Before then, the lungs are not developed enough for the fetus to survive. Today, medical technology has pushed viability down to 24 weeks in rare cases.4 The term “late-term abortion” refers to second trimester abortions at the edge of viability.

Roe adopted this medical understanding and held that states cannot outlaw abortion during the first trimester. In the second trimester, states can “regulate the abortion procedure” to some extent, such as requiring a doctor’s certification that the abortion is "medically necessary,” and can ban abortion altogether in the third trimester, “the stage subsequent to viability,” except when “necessary to preserve the life or health of the mother.”5

Roe upended anti-abortion laws nationwide and provoked a political firestorm. Congress responded by passing the Helms Amendment to the Foreign Assistance Act of 1973 named after North Carolina Republican Senator Jesse Helms. The U.S. gives foreign aid to poor countries. The law states that no foreign aid “may be used to pay for the performance of abortion as a method of family planning or to motivate or coerce any person to practice abortions.”6

Recently, President Donald Trump signed an Executive Order that bans payment of U.S. foreign aid funds to any non-governmental organization that provides abortion services or counseling of any kind.7 The order covers an estimated $9.5 billion in foreign aid.8

Like Congress, various state legislatures reacted to Roe by passing laws designed to make it difficult to get an abortion. The Supreme Court responded by striking down these laws as unconstitutional.9

Abortion Rights Curtailed—Planned Parenthood v. Casey and the Partial Birth Abortion Act

The Roe trimester approach lasted for nineteen years until Planned Parenthood of Southeastern Pennsylvania v. Casey which cut back on Roe and declared the state’s detailed patient consent requirement, 24-hour waiting period, parental notification requirement, and extensive reporting by abortion facilities to state health departments were constitutional.10

In modifying Roe, the Court reaffirmed “the right of the woman to choose to have an abortion before viability,” but recognized “the State's power to restrict abortions after fetal viability,” noting “the State has legitimate interests from the outset of the pregnancy in protecting … the life of the fetus that may become a child.”11

Early-term abortion is performed by dilation and evacuation — the cervix is dilated, and the fetus evacuated through the birth canal.12 In contrast, a late-term abortion is performed by dilation and extraction — the fetus is removed feet first through the birth canal, but because the skull is too big, it must be cut open, the brain cavity drained and the skull cut down to complete delivery.13 Only 1.3% of all abortions are late-term abortions.14

Nebraska enacted a law making abortion by dilation and extraction a crime. In Stenberg v. Carhart,15 the Supreme Court declared the Nebraska ban was unconstitutional for two reasons: (i) the law failed to contain “any exception for the preservation of the health of the mother,”16 and (ii) the definition of late-term abortion was overbroad and covered abortions by dilation and evacuation performed early in the second trimester.

In reaction, Congress passed the Partial Birth Abortion Act of 2003 (“PBAA”).17 This law is nearly identical to the Nebraska law struck down in Stenberg. Not surprisingly, three federal district courts and three federal appellate courts struck it down.

To the surprise of many, the Supreme Court reversed them all and upheld the PBAA in Gonzales v. Carhart,18 ruling the law does not pose an unconstitutional burden on a woman’s right to an abortion guaranteed by Roe.

Why the change? Justice Ruth Bader Ginsburg explained in her dissent: abortion law had not changed, only the composition of the Supreme Court. She called the decision “alarming” because the Court approved a national ban on late-term abortions even though the American College of Obstetricians and Gynecologists declared these rare procedures are sometimes medically necessary.19

As a result, the PBBA permits states to pass laws restricting late-term abortion. Forty-three states have done so in one form or another, primarily by prohibiting abortions after 20-24 weeks.20

The Hyde Amendment and Its State Counterparts

Three years after Congress passed the 1973 Helms Amendment, it passed the 1976 Hyde Amendment named after Illinois Republican Congressman Henry Hyde. Under the Social Security Act, the federal government provides health benefits to the poor. The Hyde Amendment prohibited use of such funds for elective abortions. Federal funds could be used only for abortions “where the life of the mother would be endangered if the fetus were carried to term,” but not in cases of rape or incest.21

The Hyde Amendment represented a major legislative victory for the anti-abortion movement following Roe.

In 1980, the Supreme Court upheld the Hyde Amendment in Harris v. Mcrae.22 The Court said that, while Roe created a right to early term abortion, it did not create an entitlement to government funding of abortion which “is inherently different from other medical procedures because no other procedure involves the purposeful termination of a potential life.”23

In 1993, then President Bill Clinton signed into law a revised Hyde Amendment which additionally permits use of federal funds for abortion in cases of rape or incest, provided the victim reported the crime to law enforcement or a public health agency, something many rape victims are afraid to do.24

Today, the Hyde Amendment is part of the No Taxpayer Funding for Abortion and Abortion Insurance Full Disclosure Act of 2017 which “makes permanent the prohibition on the use of federal funds ... for abortion or health coverage that includes abortion” except for rape, incest or where “a physical disorder, physical injury, or physical illness ... would, as certified by a physician, place the woman in danger of death unless an abortion is performed.”25 The law prohibits performing an abortion in any federal health care facility and prohibits any federal employee from performing an abortion.

The Hyde Amendment spurred new laws that banned abortions for federal workers, pregnant inmates in federal prisons, the military and the Peace Corps.

Medicaid provides healthcare for the poor. Both the states and federal government fund Medicaid. The Hyde Amendment inspired several states to pass mini-Hyde Amendments to prohibit use of state funds for abortion. The Supreme Court upheld the constitutionality of these laws in Williams v. Zbaraz,26 ruling that states, like the federal government, are not required to pay for “medically necessary” but not life-saving abortions.27

Conclusion

Studies have revealed that bans on “public funding for abortion subject women to dire hardships,”28 especially “[w]omen of color [who] are more likely than white women to be insured by Medicaid.”29 The Hyde Amendment and its state counterparts have forced “more than a million women” to carry an unwanted pregnancy to term.30 The overwhelming majority (85%) were unmarried, in their mid-20s to 30s, and lacked health insurance.31

Likewise, as a result of the Helms Amendment, patients in poor countries dependent on U.S. aid for basic healthcare are forced to seek unsafe abortions from persons with no medical training, causing “520 deaths per 100,000 unsafe abortions in sub-Saharan Africa” alone and “13% of maternal death worldwide.”32 Unsafe abortions cause “the deaths of 47,000 women every year and leaves millions temporarily or permanently disabled.”33 Another study found that 99% of abortions in Africa are unsafe, “resulting in one maternal death per 150 cases.”34

African lawyer and human rights activist, Mamafuto Kale, attributes these grim statistics to “interference from halfway around the globe” arising from “United States government policy reinstated by President Trump [that] blocks federal funding worldwide to nongovernmental organizations that provide any kind of abortion service, including advocacy, referral and counseling.”35

Under the Constitution, states cannot limit rights guaranteed by federal law, but they are free to provide more rights.36 Given the current makeup of the Supreme Court, it is possible Roe may be overturned entirely. Should that happen, the poor will have to look to the states to gain access to abortion services. Currently, only 17 states provide funds for abortion.37