Major U.S. laws concerning abortion
|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. |
|A similar essay covering Canadian laws is available elsewhere.|
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
|a woman and her doctor may freely decide to terminate a pregnancy during the first
|state governments can restrict abortion access after the first
trimester with laws intended to protect the woman's health.|
|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
"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
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:
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.
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:
|Require counseling and/or a cooling-off period before an abortion is performed.|
|Require an underage woman to notify, or obtain permission, from a parent, guardian or
|End government financial support for women in poverty who seek abortions.|
|Ban abortions after viability of the fetus unless required to preserve the woman's life
|Ban all abortions.|
|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:
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
- 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
- "Reproductive Rights," American Civil Liberties Union, at:
- "Constitutional Law," at: http://members.aol.com/
- The text of the ruling for Planned Parenthood v. Casey is available
- George Jackson has prepared a report on "Researching State Abortion
Laws: A Pathfinder for
Advocates, Policymakers and Attorneys," 2004-MAR-16, at:
Copyright © 1998 to 2008 by Ontario Consultants on
Latest update: 2008-JAN-31
Author: B.A. Robinson