Mary E. Harned, J.D.

Abortion advocates have always vehemently opposed laws that limit taxpayer funding for abortion. The Hyde Amendment, which Congress has applied to the annual appropriations bill for the Department of Health and Human Services for nearly all of the last 45 years, draws their greatest contempt, because it prohibits the use of federal and state matching Medicaid funds for most abortions—and has likely saved 2.4 million lives. However, for many years the abortion industry grudgingly tolerated lawmakers who supported the Hyde Amendment, for principled or pragmatic reasons, as long as they remained in lockstep with the rest of their abortion agenda.

Abortion advocates contend that the United States Supreme Court is on the precipice of reversing Roe v. Wade—the conservative justices are simply waiting for the arrival of another like-minded colleague, and they may find that person in Judge Amy Coney Barrett. An honest review of recent decisions by the Court, however, simply fails to support this belief. Instead of building a case for Roe’s demise, the Court has managed to make abortion jurisprudence even murkier for legislators and lower courts trying to determine the constitutionality of abortion laws, while otherwise refusing to make substantive decisions in abortion cases.

Abortion advocates—seeking to exploit the COVID-19 crisis to advance unfettered access to abortion-inducing drugs—found a friend in federal court.  In mid-July, Judge Theodore D. Chuang issued a preliminary injunction prohibiting the Food and Drug Administration (FDA) from enforcing certain health and safety practices that abortion providers are required to follow when prescribing the only FDA-approved abortion drug regimen.

Abortion advocates have found a new ally—COVID-19. During this intensely stressful time, the vast majority of Americans are focused on protecting their health and the health of loved ones, neighbors, and vulnerable members of their community. The abortion industry, however, is seizing on this national emergency to promote their agenda.

Advocates for taxpayer-funded abortion likely underestimated the backlash they would face when they attempted to include abortion funding and coverage in healthcare reform in 2010. Ultimately, the Affordable Care Act’s (ACA) abortion-related provisions and accompanying federal regulations marked a massive deviation from the long-standing Hyde amendment by allowing abortion-on-demand in federally subsidized insurance plans.

Our nation’s highest court may soon clarify or modify federal abortion jurisprudence after agreeing to hear June Medical Services v. Gee, a case in which a Fifth Circuit panel upheld a Louisiana law requiring an abortion provider to have admitting privileges at a hospital within 30 miles of his or her practice.

While several states have appealed court decisions enjoining abortion restrictions to the United States Supreme Court, the Court has thus far failed to clarify or modify federal abortion jurisprudence. Specifically, the Court has declined to review an Eleventh Circuit Court decision enjoining a second-trimester dismemberment abortion ban in Alabama, and a Seventh Circuit Court decision enjoining a ban on discriminatory abortions in Indiana.

The Massachusetts legislature is currently considering a proposal to further liberalize the law of abortion in the Bay State. HB 3320 would substantially alter Massachusetts law by removing any recognition of an unborn child as a person—or even potential person—worthy of protection.

Massachusetts bills H. 3320 and S. 1209 would codify a right to abortion through nine months of pregnancy in Bay State law and repeal the state’s meager existing protections for unborn children and their mothers. However, because of a decision by the Massachusetts Supreme Judicial Court and the presence of an undefined health exception in the state’s viability law, abortion is essentially legal through all nine months of pregnancy in Massachusetts today.

Challenged abortion laws that may be reviewed by the United States Supreme Court in the near future can be divided into three main groups: (I) Limitations on the availability of taxpayer dollars to abortion providers; (II) restrictions on abortion procedures and discriminatory abortions; and (III) health, safety, and informed consent laws.