Abortion

Abortion: an overview

In 1973, Roe v. Wade, 410 U.S. 113, changed the legal status of abortion by striking down a Texas law that criminalized abortion except as a means of saving the mother’s life. The case pitted individual privacy rights against States’ interest in regulating the life of the fetus. Interpreting the Due Process Clause of the Fourteenth Amendment and the Right of Privacy maintained by the Ninth Amendment, the Court ruled that a woman’s personal autonomy and reproductive rights extend to her decision to terminate her pregnancy. The Court determined that States’ interest in the fetus became relevant only at “viability,” the point at which the fetus could survive independently from its mother. Government bans on abortion became limited to post-viability interventions, while at no point could the State privilege the life of the fetus over that of the mother. Pre-viability regulation of abortion by States was limited by a woman’s right to choose to end her pregnancy. Justice Blackmun’s “trimester formula” anchored the concept of viability and established a timetable according to which States could legally regulate abortion. Roe never permitted abortion in every instance but balanced States’ interest in the life of the fetus with women’s privacy rights.

Doe v. Bolton, 410 U.S. 179, decided by the Court on the same day as Roe, established the concept of health within the purview of physicians. The judicial question addressed by the Court concerned a Georgia law that proscribed medical abortion except as a measure performed by a licensed physician using his best judgment and aiming to save the mother’s life. The Court ruled that physicians maintain a privileged knowledge of life and health that qualifies them to judge the particular risks posed by abortion procedures. Doe signaled the Court’s best effort to diminish the political nature of abortion by insisting that scientific knowledge and practical experience, not legislative acts, best served women, fetuses, and States’ interests in the abortion debate. Subsequently, Doe asserted protection of privacy to the confidential patient-physician relationship. In 1976, physicians’ expertise was again upheld in the case of Planned Parenthood of Central Missouri, v. Danforth 428 U.S. 52, which determined “viability” to be a concept properly defined by the medical establishment rather than state legislatures.

In 1989, the Supreme Court again addressed the question of the medical establishment’s role in abortion. Webster v. Reproductive Health Services, 420 U.S. 490 (1989) specifically tackled the constitutionality of a Missouri state law that denied public funds, practitioners, and facilities for use in abortion. The majority decision, which was internally contentious, upheld abortion as a right possessed by women, yet also upheld the actions of the state in denying public resources to support abortion. The majority opinion found no law compelling states to allocate moneys for counseling women about or for performing abortions. It deemed the statute’s preamble, which defined when life begins, wholly constitutional. By upholding a state’s right to design legislative measures limiting access to abortion services, Webster represented a significant deviation from the Court’s approach in Roe.

Since Roe, many states drafted abortion laws that stipulated conditions under which a woman could get an abortion. State abortion laws designed to narrow the practices permissible under Roe’s broad legal mantle increased the heat on an already sizzling debate. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), for which there was no majority opinion, brought the conflict over Roe into high relief. The question raised by Casey is whether or not five separate conditions placed upon a woman’s right to abortion by Pennsylvania state law are constitutional. In the plurality opinion written by Justices O’Connor, Kennedy, and Souter, the Court ruled three of five stipulations – parental consent, informed consent and a 24-hour waiting period – constitutionally valid, because they did not unduly burden a woman seeking an abortion. Spousal notification was deemed an “undue burden” and was therefore rejected as unconstitutional. These decisions were in keeping with a new legal standard – undue burden – designed by Justice O’Connor in Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983) as a means of upholding Roe’s principal argument while simultaneously narrowing its scope without creating hardship for women. Casey, which overturned the trimester model conferred by Roe, brokered the relationship between States’ interests and women’s right to privacy via the concept of viability. As with Roe, States could entirely ban abortion at the point where a fetus achieved viability. Casey declared medical science, particularly the language and information used by doctors and hospitals in elaborating abortion procedures for patients, subject to State regulations and mandates.

Although Casey proved a significant victory for anti-abortion groups, many states continued passing statutes that whittled away at Roe’s chief entitlement. In Stenberg v. Carhart, 530 U. S. 914 (2000), the Court addressed a Nebraska law that criminalized performance of a class of procedures collectively known as “partial birth abortion.” The Court ruled the statute, which excepted no circumstances – not even preserving the health of the mother – a violation of the Due Process Clause of the Fourteenth Amendment of the Constitution.

The debate over so-called partial birth abortion merely shifted to the legislative branch when Congress passed the Partial-Birth Abortion Ban Act of 2003. Carhart, one of only a handful of physicians nationwide performing third trimester abortions, brought suit which claimed that the Act violated the personal liberty protections of the Fifth Amendment by banning partial birth abortions without exception.

In Gonzales v. Carhart, 550 U.S. 124 (2007), the Court ruled that on its face the act banning abortions described in terms of their method – intact dilation and extraction – did not unduly burden women, create hardship or otherwise fail to protect their health by effectively preventing access to abortion, because such proceedings are never medically necessary.