abortion
Abortion is the voluntary termination of a pregnancy.
The Supreme Court of the United States had previously held in the 1973 case of Roe v. Wade that the U.S. Constitution protected the right to an abortion before a fetus becomes viable, and had partially reaffirmed Roe in the 1992 case of Planned Parenthood v. Casey , though in Casey the Court rejected Roe’s strict scrutiny and trimester frameworks in favor of an “undue burden” standard. In 2022, however, the Court backtracked, overruling both Casey and Roe in their entirety, holding in Dobbs v. Jackson Women's Health Organization that abortion is not a fundamental right under the U.S. Constitution . This holding further reduced the standard of review courts use when evaluating the legality of a law affecting abortion access from the “undue burden” standard to rational-basis review .
From Roe to Dobbs
Roe v. Wade pitted individual privacy rights against a state’s interest in preserving the life of the fetus. Interpreting the Due Process Clause of the Fourteenth Amendment and the Ninth Amendment to entail a Right to Privacy , the Court ruled that an individual's personal autonomy and reproductive rights extend to their decision to terminate their own pregnancy. The Court had determined that the government’s interest in the fetus becomes relevant only at “viability,” the point at which the fetus could survive outside the womb.
Following Roe , government bans on abortion became limited to post-viability interventions, and at no point could the government privilege the life of the fetus over the life of the patient. Justice Blackmun’s “trimester formula” anchored the concept of viability and established a clear timetable for when states could legally regulate abortion. Roe did not, however, guarantee the right to an abortion in every instance; rather, it balanced the government’s interest in the life of the fetus with the individual’s privacy rights.
The case of Doe v. Bolton, 410 U.S. 179 (1973) , decided on the same day as Roe , addressed the concept of abortion health within the purview of physicians. The case concerned the constitutionality of a Georgia law that prohibited medical abortion except as a measure performed by a licensed physician using their best judgment to save the life of the patient. The Court ruled that several elements of that law were unconstitutional, and noted that physicians maintain a privileged knowledge of life and health that qualifies them to judge the risks posed by abortion procedures. Some believe the Doe holding was the Court’s best effort to diminish the political aspects of the abortion debate by insisting that scientific knowledge and practical experience, not legislative acts, best served individuals, their pregnancies, and states’ interests. In 1976, the Court again granted deference to physicians’ expertise in the case of Planned Parenthood of Central Missouri, v. Danforth 428 U.S. 52 , which held that “viability” was a concept properly defined by the medical establishment rather than state legislatures.
In 1989, the Supreme Court again dealt with the medical community’s role in abortion. Webster v. Reproductive Health Services, 420 U.S. 490 (1989) specifically tackled the constitutionality of a Missouri state law that prohibited the use of public funds, employees, and facilities to perform, assist, or encourage an abortion not necessary to save the life of the patient. The majority decision , which was internally contentious, affirmed that the abortion right belonged to individuals, 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 monies for counseling individuals about abortion or for performing them. The Court ruled the statute’s preamble, which defined when life begins as at conception, wholly constitutional. In all, Webster marked a significant deviation from the Court’s approach in Roe .
Since Roe , many states have drafted abortion laws that stipulated conditions under which an individual 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 hot 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. Casey reviewed a constitutional challenge to a Pennsylvania law’s five conditions affecting abortion access. 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 person seeking an abortion. The plurality opinion held that spousal notification, however, was an “undue burden” and therefore unconstitutional. These decisions were in keeping with a new legal standard – the “undue burden” standard—first articulated by Justice O’Connor in Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983) . This new undue burden standard allowed Roe’s core holding to remain while still narrowing its scope, as Casey overturned the trimester model announced in Roe while still allowing states to regulate abortion to the point of a complete ban once a fetus reached viability. Casey also declared that medical science, particularly the language and information used by doctors and hospitals to explain abortion procedures for patients, could be state regulated.
Following Casey , many states continued to pass statutes that attempted to chip away the edges of Roe’s core holding. In Stenberg v. Carhart, 530 U. S. 914 (2000) , the Court evaluated the constitutionality of a Nebraska law that criminalized performing a class of procedures collectively known as “partial birth abortions,” with no exceptions. The Court held that the statute was unconstitutional because “where substantial medical authority supports the proposition that banning a particular abortion procedure could endanger women's health, Casey requires the statute to include a health exception when the procedure is ‘necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.’” Stenberg v. Carhart, 530 U.S. 914, 938 (2000) (quoting Planned Parenthood v. Casey, 505 U.S. , at 879 ).
The debate over so-called partial birth abortions shifted to the legislative branch when Congress passed the Partial-Birth Abortion Ban Act of 2003 . Dr. Leroy Carhart, one of only a handful of physicians nationwide performing third trimester abortions, challenged the constitutionality of the Act on its face (as opposed to a constitutional challenge to the Act as-applied to a particular instance) on the ground that it violated the personal liberty protections of the Fifth Amendment . In Gonzales v. Carhart, 550 U.S. 124 (2007) , the Court ruled that, on its face, the act’s banning of abortions described in terms of their method–intact dilation and extraction–did not unduly burden individuals, create hardship, or otherwise fail to protect their health by effectively preventing access to abortion because such proceedings are never medically necessary.
In National Institute of Family and Life Advocates v. Becerra, 138 S.Ct. 2361 (2018) , the Court ruled unconstitutional a California Law requiring licensed clinics that offered “pregnancy-related services” to provide a “government-drafted script” about the availability of state-sponsored services, such as abortion. The Court held that the law was a content-based regulation of speech because it compelled clinics to inform individuals about how they could obtain state-subsidized abortions. As such, strict scrutiny applied, which the regulation failed to overcome.
Finally, in Dobbs v. Jackson Women’s Health Org. (2022) , the Court entirely overruled Roe v. Wade . In doing so, the previous cases that affirmed Roe in part (such as Casey ) are also no longer valid case law. The Court asserted in Dobbs that there is no fundamental right to abortion guaranteed in the Constitution. Consequently, states are now able to pass legislation that regulates abortion so long as it is for a reason rationally related to a legitimate state interest (i.e., it passes rational-basis review ). Like other state laws challenged under rational-basis review , abortion regulations are entitled to “a strong presumption of validity” if challenged under the U.S. Constitution.
Post Dobbs
Abortion continues to occupy a controversial battleground across the United States. While some have called for federal legislation to “codify Roe ,” abortion access has fractured among the states. Activists have pushed efforts for state high courts to recognize or overrule precedent already recognizing a right to abortion in state constitutions . State lawmakers have also pushed flurries of new legislation to protect or restrict abortion access. In the 2024 election , referendums to protect or expand abortion access were on the ballots in 10 states .
[Last reviewed in November of 2024 by the Wex Definitions Team ]
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