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Abortion access

Major U.S. laws concerning abortion

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Notes:

bullet The following is general information only, and should not be interpreted as legal advice. Do not make any decisions on the basis of this essay. If you have a personal problem in this area, you may want to consult a legal professional.
bullet A similar essay covering Canadian laws is available elsewhere.

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United States Supreme Court ruling: Roe v. Wade (1973):

Prior to the U.S. Supreme Court's famous Roe v. Wade decision, abortions were permitted in certain states but banned in others. The court ruled in 1973 that, anywhere in the U.S.: 1

bullet a woman and her doctor may freely decide to terminate a pregnancy during the first trimester,
bullet state governments can restrict abortion access after the first trimester with laws intended to protect the woman's health.
bullet abortions after fetal viability must be available if the woman's health or life are at risk; state governments can prohibit other abortions.

The Roe v. Wade case involved a pregnant single woman ("Roe") who brought a class action challenging the constitutionality of the Texas criminal abortion laws, which prohibited any abortion except to save the woman's life. A married couple (the "Does") separately attacked the laws on the basis that an accidental pregnancy could find them unprepared for childbearing and could pose a hazard to the wife's health. The Does' appeal was rejected as being too speculative.

The Supreme court found that:

"State criminal abortion laws, like those involved here..... violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy..."

"For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician."

"For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health."

"For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother."

Subsequent court decisions defined the term "preservation of health" very broadly, to include such situations as a woman being suicidaly depressed about being pregnant.

Mr. Justice Stewart issued a concurring statement which said in part:

"Clearly, therefore, the Court today is correct in holding that the right asserted by Jane Roe is embraced within the personal liberty protected by the Due Process Clause of the Fourteenth Amendment. It is evident that the Texas abortion statute infringes that right directly. Indeed, it is difficult to imagine a more complete abridgment of a constitutional freedom than that worked by the inflexible criminal statute now in force in Texas."

Mr. Justice Rhenquist issued a dissenting opinion. He noted that there was no proof that Roe was in her first trimester when she filed her original suite. He said:

"While a party may vindicate his own constitutional rights, he may not seek vindication for the rights of others."

Noting that an abortion requires the services of a physician, Rhenquist felt that such an operation is:

"not 'private' in the ordinary usage of that word. Nor is the 'privacy' that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution."

He felt that the court was not justified in declaring the entire Texas statute to be unconstitutional. Rather, it should have been declared unconstitutional as applied "to a particular plaintiff, but not unconstitutional as a whole."

"Roe" never did obtain an abortion.

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Additional U.S. laws restricting abortions:

At least 16 states still have pre-1973 anti-abortion laws on the books even though they are clearly unconstitutional and nullified under Roe v. Wade. However some of them would be immediately enforceable if the U.S. Supreme Court overturned Roe v. Wade in the future. Others would remain unenforceable until judicial injunctions were lifted.

There have been many attempts since 1973 to reduce free access to abortions. Laws have been passed by some states and at the federal level to:

bullet Require counseling and/or a cooling-off period before an abortion is performed.
bullet Require an underage woman to notify, or obtain permission, from a parent, guardian or court.
bullet End government financial support for women in poverty who seek abortions.
bullet Ban abortions after viability of the fetus unless required to preserve the woman's life or health.
bullet Ban all abortions.
bullet Ban a D&X abortion procedure, except when performed on a dead fetus or to save the life of the woman.

The three most important decisions have been:

bullet Webster: In Webster v. Reproductive Health Services, 492 U.S. 490 (1989), the Supreme Court declared in a 5:4 decision that a Missouri law was constitutional. It stated that:
bullet Human life began at conception,
bullet That Missouri state property could not be used to conduct abortions, and
bullet A fetal viability assessment could be required before late term abortions are performed.
bullet Akron Center: In Ohio v Akron Ctr. for Reproductive Health, 497 U.S. 502 (1990), the Court ruled 6:3 that a state could require a parent or guardian to be notified before an under-aged woman received an abortion. However, a provision must be in place for a judge to by-pass this requirement if he/she regards it to be in the best interest of the woman.
bullet Casey: In Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), the court ruled 5:4 that Pennsylvania could require:
bullet A 24 hour waiting period before an abortion is performed.
bullet That the woman give her informed consent to the abortion.
bullet That parent or guardian be notified before an abortion on a woman who has not reached her 18th birthday.

The court also struck down as unconstitutional the requirement of a Pennsylvania law which required prior spousal notification.

Independently of the state and federal laws, physicians who perform abortions are restricted by the regulations of their state's Medical Association. They typically do not permit abortions after 20 or 21 week gestation unless the woman's health or life are seriously at risk.

A current survey of abortion laws is available on-line. This includes general abortion laws, post-viability abortions, partial-birth abortions, chemical abortions, viability testing, spousal consent, parental consent, informed consent, waiting periods, clinic harassment, licensing, "gag rules," public funding, etc. 2

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Related essay:

bullet Abortion laws regarding parental consent, parental notification and interstate travel

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References:

  1. Roe v. Wade, 410 U.S. 113 (1973) Roe et al. vs. Wade, District Attorney of Dallas County, Texas. See the full text from a Cornell archive
  2. "Reproductive Rights," American Civil Liberties Union, at: http://www.aclu.org/
  3. "Constitutional Law," at: http://members.aol.com/
  4. The text of the ruling for Planned Parenthood v. Casey is available at: http://members.aol.com/
  5. George Jackson has prepared a report on "Researching State Abortion Laws: A Pathfinder for
    Advocates, Policymakers and Attorneys,
    " 2004-MAR-16, at: www.tc.umn.edu/

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Copyright 1998 to 2008 by Ontario Consultants on Religious Tolerance
Latest update: 2008-JAN-31
Author: B.A. Robinson

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