State Funding Through Medicaid

Medicaid is a publicly supported healthcare program for people with low incomes. It is funded jointly by a state and the federal government. While federal law prohibits using federal funds for abortion services, each state may decide to use its own funds for abortion services. Some states have prohibited the use of their public funds for these services; New Jersey allows Medicaid to fund abortions.

In New Jersey, a woman who is eligible for state medical assistance may obtain public funds to pay for a medically necessary abortion. (Admin Code tit.10, 54-5.43 [Jan.5, 1998]).

The New Jersey constitution protects reproductive choice as a fundamental right to a greater extent than the federal constitution. In 1982, the New Jersey Supreme Court ruled that a law limiting Medicaid funding for abortion only in cases of life endangerment was unconstitutional under the state constitution. (Right to Choose v. Byrne, 450 A.2d 925 [NJ 1982]).

The So-Called "Partial Birth Abortion" Ban

In 1998, the New Jersey legislature passed a bill banning so-called "partial birth" abortions. No medical procedure fits exactly under this definition, and similar laws have been declared unconstitutional in approximately 20 other states. Various states have appealed these decisions and two different federal courts have issued contradictory decisions—one upheld these bans and the other court agreed that they are unconstitutional.

In New Jersey, Governor Whitman conditionally vetoed this legislation; but her veto was overridden by the legislature. The law was subsequently challenged in court, where an injunction prohibited its enforcement. In July 2000, the U.S. Court of Appeals overturned the law, saying it was "so vague as to encompass almost all forms of abortion" and concluding that the ban imposed an "undue burden" on a woman's constitutional right to obtain an abortion (Planned Parenthood v. Farmer, 220 F.3d 127, 152 - 3d Cir. 2000).

This decision followed a U.S. Supreme Court decision (Stenberg v. Carhart) overturning a Nebraska law similar to New Jersey's.
In 2003, President Bush signed the federal Partial Birth Abortion Ban, which lacks an exception for the woman’s health. In February 2006, the U.S. Supreme Court agreed to hear Gonzales v. Carhart, a case challenging the federal abortion ban.

Parental Notification for Minors Seeking an Abortion

In 1999, the New Jersey legislature passed, and Governor Whitman signed, a bill requiring the notification in writing of the parent of a teenager under the age of 18 who seeks an abortion. The law allowed for "judicial bypass," under which a teen may appear before a judge to explain why her parent should not be notified.

The law was subsequently challenged in court (Planned Parenthood v. Farmer A-52) and a temporary injunction prohibited its enforcement. In August 2000, the New Jersey Supreme Court struck down the law, finding it unconstitutional.