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Abortion access

1973 to now: Major U.S. laws and
court cases concerning abortion access.
Will a ban on abortion access return?

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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 local 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 by law. 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 are normally unavailable, but must be available if the woman's health or life are at risk; state governments are free to prohibit all 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. At the time, the laws prohibited any abortion at any stage of pregnancy, 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 Roe v. Wade case was successively appealed all the way to the U.S. Supreme Court. The High 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 [personal] 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 [of the fetus], 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."

The viability of a fetus is very much a function of medical knowledge and developments. Artificial wombs have been developed which allow animal fetuses to develop to the point where they can survive on their own. Similar devices could be developed for human fetal use.

Subsequent court decisions defined the term "preservation of health" very broadly, to include such situations as a woman being suicidally 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 minority 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:

Many states still have pre-1973 anti-abortion laws on the books that ban abortions, even though they are currently clearly unconstitutional and nullified under Roe v. Wade. However some of them would be immediately enforceable if the U.S. Supreme Court were to overturn their ruling for Roe v. Wade at some time in the future. This reversal is a main goal of many pro-life organizations. Other state laws would remain unenforceable until judicial injunctions were lifted.

There have been many attempts by pro-life groups 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 earlier in pregnancy if required to preserve the woman's life or health.
bullet Ban all abortions.
bullet Ban the D&X abortion procedure, except when performed on a dead fetus or to save the life of the woman.

Among the most important court decisions on abortions after Roe v. Wade 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.
bulletAkron 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 she/he regards it to be in the best interest of the pregnant girl.

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 also 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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2018-MAR-30: A series of court cases involved abortion access for undocumented teens in detention:

A regulation by the Trump administration had blocked abortion access for undocumented female teens who are in federal custody. The American Civil Liberties Union (ACLU) filed a lawsuit with the US District Court for the District of Columbia. Judge Tanya S. Chutkan granted a temporary injunction which allows teens to access abortion facilities.

Brigitte Amiri, the deputy director of ACLU's Reproductive Freedom Project issued a statement, saying:

"The Trump administration's cruel policy of blocking young immigrant women in federal custody from accessing abortion is a blatant abuse of power. We are relieved that the court issued an order preventing the administration from continuing this practice while our case proceeds. With today's rulings, we are one step closer to ending this extreme policy once and for all and securing justice for all of these young women."

She also commented that:

"The Trump administration is blatantly ignoring the fact that the Supreme Court has held for the past 45 years that abortion is a fundamental constitutional right. And that right does not depend on immigration status."

During three similar court cases in the past, all of the plaintiffs were eventually granted access. 6

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2018-JUL: State laws affecting abortion access:

One of the functions of the national research group Guttmacher Institute is to study and track abortion access rights. They have found that 17 states still have laws on their books limiting or outlawing abortions which would presumably become instantly reactivated if the U.S. Supreme Court were to overturn Roe v. Wade. Of these, there are ten states, including Massachusetts, that still have pre-Roe abortion banning laws on the books. Nine other states have laws specifically protecting abortion access. 7

In addition, they have found that 19 states have passed a total of 63 restrictions on abortion access during the previous year in an attempt to make abortions more frustrating and difficult to obtain.

President Harriette Chandle of the Massachusetts State Senate (D-MA) is motivated to repeal these currently inactive restriction laws. She said:

"As long as they are enshrined in statute, they can be picked up and used by people who do not feel the same way about women and their bodies that I would say most people in this state (MA) feel." 7

Governor Gina Raimondo, (D-RI) has called for a special legislative session to codify abortion access rights into Rhode Island state law.

Kelda Roys (D-WI), is running for governor in Wisconsin. She has stated that if she becomes Governor and if any person was convicted under a resurrected abortion law, that she would pardon them.

Gwen Graham, (D,FL) is running for governor. She has stated that she would pardon anyone found guilty under a 169 year-old Florida abortion law if it becomes enforceable. 8

If Roe v. Wade were overturned, the main impact on many U.S. women who seek an abortion would be that they would have to travel to another U.S. state or to another country to obtain the procedure. This could involve a short out-of-state drive, or it could involve a costly airplane flight. There is always the danger of a medical emergency developing during a long return trip.

Supreme Court Justice Kennedy had long been the "swing vote" on the High Court. He voted as a conservative in many cases and in favor of equal rights in other cases. With his resignation effective at the end of 2018-JUL, he will probably be replaced by a strongly conservative Judge, Brett Kavanaugh, from the District of Columbia Circuit Court. His appointment raises the distinct possibility of a 5:4 ruling by the U.S. Supreme Court in favor of repealing Roe v. Wade during or after the beginning of the next Court session in 2018-OCT.

One of the 622 comments added to the Washington Post article 8 was by "angelisagreatdog" who posted the eye-catching message:

"Let us all remember that it is impossible to ban abortion. You can only ban safe abortions."

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Public support for abortions in the U.S.

The Gallup Poll reports that in their 2018 poll, among U.S. adults:

  • 50% favor the legalization of abortions under certain circumstances.

  • 29% favor the legalization of abortions under all circumstances.

  • 18% favor making all abortions illegal. 9

By supporting the criminalization of abortions, the Republican party may be losing significant support among voters.

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2018-OCT: Wisconsin man was given a 22 year jail sentence for spiking his girlfriend's drink:

The girlfriend of Manishkumar Patel, 45 became pregnant. He was concerned about the pregnancy because he feared that when the child was born, she or he would suffer from the same medical problem as his son did. Apparently, he believed that his friend would not be willing to undergo an abortion, and so he spiked her smoothie drink with RU-486, an abortion medication. She spotted powder on the top of the drink and did not consume it. A few weeks later, her pregnancy ended naturally with a misscarriage.

Patel was charged with attempted first-degree intentional homicide of an unborn child, and received a 22 year jail sentence plus an additional four years of supervision after his release from prison. 10

RU-484 is normally used in combination with misoprostol. However, when used by itself is about 64% to 85% effective in terminating a pregnancy up to 7 weeks after conception. 11 In Wisconsin, a woman can freely choose to have an abortion up to 21 weeks into a pregnnacy. 12

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Related essay:

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

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  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/
  6. Ariane de Vogue, "Court rules against Trump administration's policy on pregnant undocumented teens " CNN Politics, 2018-MAR-30, at: https://www.cnn.com/
  7. "Supreme Court Could Return Abortion Debate to the States," Snopes, 2018-JUL-12, at: https://www.snopes.com/
  8. Karen Tumulty, "Where the real fight over abortion will take place," Washington Post, 2018-JUL-11, at: https://www.washingtonpost.com/
  9. "Abortion," Gallup, 2018, at: https://news.gallup.com/
  10. "Man Sentenced to 22 Years for Putting Abortion Drug in Girlfriend’s Drink," Christian Headlines, 2018-OCT-12, at: https://www.christianheadlines.com/
  11. "Mifepristone," Wikipedia, as on 2018-OCT-02, at: https://en.wikipedia.org/
  12. "Abortion Laws" Wisconsin," Affiliated Medical Services, at: https://www.affiliatedmedicalservices.com/

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Copyright © 1998 to 2018 by Ontario Consultants on Religious Tolerance
Latest update: 2018-OCT-15
Author: B.A. Robinson

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