Public funding for abortions, where it is available, typically falls under the Medicaid program. This program derives its funds from both the federal and state governments. States participating in the Medicaid program must comply with the minimum standards set by the federal government, but they are not required to fund all abortions.
Several successful lawsuits have been brought in individual states arguing that state constitutions mandate greater protection for privacy and equal protection for reproductive options than the federal Constitution. Many of these lawsuits have proven successful. Advocates bringing lawsuits have ensured Medicaid coverage for abortions in all or most circumstances in Alaska, Arizona, California, Connecticut, Illinois, Massachusetts, Minnesota, Montana, New Jersey, New Mexico, Oregon, Vermont, and West Virginia. Courts in Florida, Idaho, Kentucky, Michigan, North Carolina, Pennsylvania, and Texas have upheld funding restrictions under their respective state constitutions.
In Beal v. Doe, the Supreme Court ruled that Medicaid does not require a participating state to fund every medical procedure, such as abortion.
In Maher v. Roe, the Court ruled that the Equal Protection Clause does not require states to pay for therapeutic abortions.
After the passage of the Hyde Amendment (originally intended to prohibit any Medicaid funding for abortion) the Court ruled in Harris v. McRae that the Hyde Amendment was constitutional. This means that there is no constitutional obligation of the states or federal government to fund all medically necessary abortions.
In 1991, the Court decided Rust v. Sullivan, a case dealing with what information about abortion is accessible in federally funded family planning facilities. In 1988, the Department of Health and Human Services issued regulations revising their interpretation of Section 1008, the longstanding statutory prohibition against using federal family planning funds (funds available under Title X) to "promote abortion." These revised regulations implemented the "gag rule" which prohibited the discussion of abortion as a family planning option in federally funded clinics. Although never actually enforced nationwide, the "gag rule" also prohibited referrals to abortion providers and required a physical and financial separation of abortion-related activities from Title X activities. The "gag rule" was challenged by many Title X recipients, but was ultimately upheld by the United States Supreme Court in Rust. In 1993, President Clinton rescinded the gag rule.
Although a great deal of misinformation persists about Title X family planning funds, the language of the federal law is absolutely clear; women who request options counseling must be given information about carrying a pregnancy to term, adoption, and abortion, and a referral to an abortion provider if requested.
Currently, a policy known as the "global gag rule" is in effect. This restriction is tied to international family planning funds distributed by the United States. The "global gag rule" is similar to the previous family planning fund restrictions in that it prohibits recipients from advocating for abortion rights or providing abortion services. However, the "global gag rule" goes a step further, denying funds to organizations which use private funds from sources other than the United States to fund or advocate for abortion. So far, legal challenges have been unsuccessful. More
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