By Richard E. Coleson, M.A.R., J.D.
In 1973, the
United States Supreme Court decided 7-2 that there was a right to abortion
in the U.S. Constitution, found within the recently discovered right to
privacy. Even the most optimistic supporters of legal abortion were stunned
by Justice Harry Blackmun's opinion - - which read more like hospital regulations
than constitutional adjudication- - which overrode the abortion statutes
of all 50 states, even the most permissive.
No doubt Justice Blackmun agreed with the instant media consensus that the abortion issue had been laid to rest, or nearly so.
While the basic "right" to abortion is in place for now, nonetheless the justices are still deciding abortion cases. In fact, so nettlesome has been the quarter-century wrangling over the volatile abortion issue that many observers believe it heavily influenced the Supreme Court members last June when they rejected a right to assisted suicide in Washington v. Glucksberg and Vacco v. Quill.
Assisted suicide advocates had relied heavily on the abortion cases, particularly language taken from the 1992 Casey decision. They argued that assisted suicide is no less important, or private, a choice than abortion. But the Court refused to sink into another judicial morass like abortion.
Besides the basic issue of a "right" to abortion, the Supreme Court has ruled on a variety of related issues over the past 25 years. The following discussion sets out by topic the Supreme Court's key decisions in each of these areas.
As shall be seen, the core holding of Roe - - that a woman has a right to abortion - - remains currently intact. However, in the last decade, the Court has not been as hostile to some state regulations of abortion as it was from 1973 until the mid-1980s.
The Right to Choose Abortion
In Roe v. Wade (1973), the Supreme Court
decided that the "right of privacy" it had earlier discovered
was "broad enough to encompass" a right to abortion. The Court
acknowledged, in an opinion authored by Justice Harry Blackmun, that "[t]he
Constitution does not explicitly mention any right of privacy," but
asserted that "at least the roots of that right" could be found
in various provisions, including "the penumbras of the Bill of Rights."
The Court held that an unborn child was not a "person," and so
was not protected by the 14th Amendment's right to life.
For purposes of deciding what the states could do to regulate the right to abortion, the Roe Court adopted a trimester scheme. In the first trimester of pregnancy, a state could enact virtually no regulation. In the second trimester, the state could enact some regulation, but only for the purpose of protecting maternal health.
In the third trimester, after viability, a state could ostensibly "proscribe" abortion, provided it made exceptions to preserve the life and "health" of the woman seeking abortion.
But in Roe's companion case, the Court promptly reneged.
In Doe v. Bolton, the same seven-member majority expansively defined "health" to mean anything that affected the woman, including psychological pressures and financial family concerns. Reading Doe and Roe together reveals that the Court imposed on the United States a regime of abortion on demand, for any or no reason, throughout pregnancy.
A woman simply needed an abortionist willing to say she had a "health" problem to have a post-viability abortion. (And one famous abortionist has publicly asserted that an abortion request automatically creates a "health" need because the woman would be distraught if her request were denied.)
Prior to the Court's January 22, 1973, decision, no state had a law as permissive as the regime now imposed nationwide. The court not only struck down the Texas statute at issue in Roe (which included only a life-of-the-mother exception) and the Georgia statute at issue in Doe (which allowed more exceptions), but also effectively struck down all state abortion laws, whether a century old or those recently enacted.
Justice Byron White vehemently dissented, along with Justice William Rehnquist (now chief justice). White labeled Roe an exercise of "raw judicial power," an assessment shared by most constitutional scholars, even many who identified themselves as "pro-choice."
Roe and Doe were both decided by a 7-2 vote. Correction seemed possible only if a future Supreme Court revisited and reversed Roe. This, however, would come only with the appointment of new justices more willing to abide by the text and original intent of the Constitution.
Some of the appointments of Presidents Reagan and Bush offered hope in this respect. However, President Bill Clinton's replacements on the Supreme Court have been ideologically supportive of both abortion on demand and a freewheeling approach to constitutional adjudication. His appointment of Justice Ruth Bader Ginsburg to replace retiring Justice White was a loss of a pro-life vote on the Court. Roe author Justice Harry Blackmun was replaced with another pro-Roe vote, Stephen Breyer.
For the present, then, the hope that changes on the Court will lead to reversal of Roe awaits a more favorable day.
In the years following Roe, the High Court was particularly hostile to even the most limited, common sense laws. For example, in Akron v. Akron Center for Reproductive Health (1983), the Court struck down a series of abortion regulations (including a woman's right to know provision) by a 6-3 vote. Newly appointed Justice Sandra Day O'Connor joined the dissent.
Three years later, in Thornburgh v. American College of Obstetricians and Gynecologists, the justices overturned more abortion regulations (including a woman's right to know provision), but this time by a 5-4 vote. Pondering what Roe meant in practice, then-Chief Justice Warren Burger reversed himself and called for the reconsideration of Roe.
Three years later, with more changes on the Court, a majority was more sympathetic to limited protective legislation. In Webster v. Reproductive Health Services (1989), a majority upheld Missouri's refusal to allow abortions to be performed with public facilities or employees. However, the Court doggedly insisted that Webster did not require reconsideration of Roe.
In reaction, Justice Antonin Scalia chastised the Court for dodging the issue, while Justices Harry Blackmun, William Brennan, and Thurgood Marshall declared their fear for the future viability of the right to abortion.
The case of Planned Parenthood of Pennsylvania v. Casey (1992) more squarely presented the issue of Roe's continued viability. In a surprise move, Justice Anthony Kennedy, whose previous voting pattern indicated he might vote to reverse Roe, apparently switched sides and voted with a new majority to reaffirm the core holding of Roe.
The joint opinion Kennedy co-authored with Justices O'Connor and David Souter proclaimed that, while these justices might rule differently were there no 15-year history of Court support for a right to abortion, the Court could not be seen as bending to perceived political pressures. Having been once decided, Roe must be upheld,they maintained. Chief Justice Rehnquist and Justices Byron White, Antonin Scalia, and Clarence Thomas voted to reverse Roe.
While the controlling Casey votes reaffirmed the core holding of Roe, i.e., that a woman has a constitutional right to abortion, they also discarded the trimester scheme adopted in Roe. In addition, a new "undue burden" standard emerged from Casey, replacing the old "compelling interest" analysis.
The "compelling interest" test required that a state demonstrate that its regulation was "narrowly tailored" to meet a "compelling state interest." Using this demanding constitutional standard, the Court in Thornburgh struck down a woman's right to know law, which gave a woman seeking abortion information vital to an informed consent, including information about fetal development, alternatives to abortion, and the risks of abortion, along with a brief waiting period to consider the new information. But under the new "undue burden" standard, a nearly identical bill was upheld in Casey.
Also in Casey the controlling bloc on the Court slightly altered its constitutional analysis. Gone was its reliance on a right to "privacy" allegedly found in several constitutional provisions.
Instead, the Court relied exclusively on the "liberty" guarantee of the Due Process Clause of the 14th Amendment. The controlling Casey decision also suggested the possibility of further protective laws after viability.
Thus, although the right to abortion remains (and abortion mills continue their grisly trade largely uninhibited), the Court has said that states may enact certain regulations, including some that hold promise for reducing the number of abortions.
Roe v. Wade and Doe v. Bolton did not address the question of the killing of children who are partially born. The Court noted that a Texas statute prohibiting such a practice remained in effect. It is believed that laws banning partial-birth abortions, such as the Partial-Birth Abortion Ban Act now before Congress will ultimately be held constitutional by the U.S. Supreme Court.
In Roe, the Supreme Court said that states
could require that abortions performed after the first trimester be done
in a hospital, a promise it subsequently withdrew in Akron v. Akron Center
for Reproductive Health (1983). Since abortions were safer (for women)
than they had been in 1973, the Court in Akron argued, states had
no compelling interest to impose such a requirement. However, in Simopolous
v. Virginia (1983), the Court said a state may require that all abortions
after the first trimester be performed in a hospital or a clinic.
Lower courts have held that abortion clinics need not meet the requirements generally imposed on ambulatory surgical care units because of the alleged safety of the abortion procedure.
In Roe, Doe, Akron, and Connecticut v.
Menillo (1975), the Supreme Court held that a state may insist that
only licensed physicians perform abortions. Nonetheless, due to the shortage
of physicians willing to be abortionists, abortion advocates have been pushing
for a Court decision that non-physicians could perform abortions.
In 1997, such a case came to the Supreme Court from Montana, where a physician-assistant had challenged the state's physician-only abortion law. The federal district court had refused to issue a preliminary injunction against Montana's regulation before the case was decided, holding that there existed insufficient likelihood the plaintiffs would succeed.
The Supreme Court agreed with the district court in a brief, summary opinion issued without oral argument in Mazurek v. Armstrong (1997). In its opinion, the Court noted that in Casey it had upheld a requirement that only physicians provide certain counseling because states have broad latitude in regulating professionals. Therefore, the Court noted, it was likely that Montana's physician-only requirement would be upheld and a preliminary injunction should not be issued.
Given this opinion, it seems likely that states wishing to restrict the performance of abortions to physicians may continue to do so.
In the 1973 Doe decision, the Court said that a state could not require an abortionist to obtain a concurring second opinion from another doctor. However, in Planned Parenthood Association of Kansas City, Missouri v. Ashcroft (1983), the Supreme Court concluded that a state may require the presence of a second physician at an abortion after viability to care for the aborted child (in case he or she survives), provided there was an appropriate exception for "medical emergencies."
Abortion Method and Standard of Care
In Planned Parenthood v. Danforth (1976),
the Court struck down a law that banned the use of saline amniocentesis
as an abortion method. Likewise, in Thornburgh v. American College of
Obstetricians and Gynecologists (1986) and Colautti v. Franklin
(1979), the Court struck down state laws mandating that an abortionist use
the method most likely to allow the child to be born alive in post-viability
abortions. The Court reasoned that there could be no "trade-off"
between the woman's health and fetal survival.
In Thornburgh, the Court similarly struck down a requirement that an abortionist exercise the degree of care "which such person would be required to exercise in order to preserve the life and health of any unborn child intended to be born and not aborted." It again found that a forbidden "trade-off" with maternal health would be required.
However, yet to be tested is a statute that specifies a standard of care for a viable unborn child and includes a provision allowing no "trade-off" with maternal health. In the Ashcroft case, such a statute was discussed, but not directly ruled on by the Supreme Court because it had not been challenged.
In passing, the Court noted that the statute required the doctor performing an abortion to "take all reasonable steps in keeping with good medical practice, consistent with the procedure used, to preserve the life and health of the viable unborn child: provided that it does not pose an increased risk to the life or health of the mother."
However, under Planned Parenthood v. Danforth (1976), prior to viability no imposed standard of care for the unborn child is constitutionally permitted.
In Casey, Ashcroft, and Danforth, the Supreme Court upheld state statutes that required confidential record keeping and reporting. In Ashcroft, the Court also approved of a requirement that there be a pathologist's examination and report on all tissue removed in an abortion.
In Doe, the Supreme Court ruled that a state could not require that a woman be a resident of the state in order to obtain an abortion in the state.
In Danforth, the Court struck down a Missouri law that obliged a married woman seeking an abortion to obtain her husband's consent. This was widely interpreted to mean that biological fathers had no say in abortion decisions involving their unborn children. Indeed, in Casey, the Supreme Court decided that a husband was not even entitled to notice before his wife could choose abortion.
In Danforth, the Supreme Court held that
states could require a minor to obtain consent of one parent before obtaining
an abortion. However, any parental consent law must contain a "judicial
bypass" option for minors who do not wish to obtain parental consent.
(In such a confidential, expedited bypass hearing, the court determines
whether the minor is mature enough to make the abortion decision herself
or, if she is not, whether an abortion is in the minor's "best interests.")
Parental notice laws serve the important function of getting parents involved. A one-parent notification requirement with a judicial bypass procedure was found constitutional in
Ohio v. Akron Center for Reproductive Health (1990). The question of whether a one-parent notice statute would be constitutional without a judicial bypass was expressly left open in the Ohio case.
While on its face a parental consent law would always seem more protective than a parental notice law, in fact it may not be. The judicial bypass procedure required with consent laws has become a mere rubber-stamp procedure before a pro-abortion judge in many jurisdictions. As a result, parents may never learn that their daughter is planning to have (or has had) an abortion. The opportunity for parental involvement is lost.
By contrast, a one-parent notice provision - - provided there was no requirement for a judicial bypass - - would assure parental knowledge that an abortion is being planned and allow them to interact with their child.
The 1990 Ohio case also decided that a minor could be required to prove her maturity to choose abortion or that an abortion is in her "best interests" by "clear and convincing evidence" (not by just "a preponderance of the evidence"). In addition, the abortionist can personally be required to bear the responsibility of notifying the parents when no judicial bypass is used.
In Casey, the Supreme Court overruled its
Thornburgh and Akron decisions which had struck down women's
right to know laws. While abortionists are required in all jurisdictions
informed consent from patients, numerous women have testified before state legislative bodies that they received little or no information about fetal development and other matters essential to making an informed decision about abortion. Legislatures have responded with women's right to know laws.
These laws mandate that certain information be provided in prescribed ways to women seeking abortion. The Casey Court upheld the requirement that the abortionist be personally responsible to provide some of the mandated information. A typical law requires that the woman be given information about fetal development, the probable age of her unborn child, alternatives to abortion, resources available for alternatives, the nature and risks of the abortion procedure, and the name of the abortionist.
In Casey, the Supreme Court reversed the
Thornburgh and Akron decisions that had held that it was unconstitutional
to require a waiting period after information is provided to the woman seeking
abortion before she can consent to an abortion. The law at issue in Casey
gave the woman seeking abortion 24 hours to consider the new information
provided her in compliance with the woman's right to know law before she
could give valid consent to an abortion.
In Casey, the Court also upheld the waiting period in the face of arguments from abortion-rights partisans that some women might have to make two trips to the abortion clinic, thereby experiencing greater expense, inconvenience, time commitment, and possible risk in abusive situations.
In Harris v. McRae (1980), Williams v.
Zbaraz (1980) and Maher v. Roe (1977), the Supreme Court held
that federal and state governments are under no obligation to fund abortion
in public assistance programs, even if childbirth expenses are paid for
indigent women and even if the abortion is deemed to be "medically
In Webster v. Reproductive Health Services (1989) and Poelker v. Doe (1977), the High Court decided that the federal Constitution does not require government to make public facilities such as hospitals available for use in performing abortions. Also, in Rust v. Sullivan (1991), the Court held that government may ban public employees from counseling or referring for abortion in public facilities on public time.