By Mary Spaulding Balch
NRLC State Legislative Director
By overturning
the abortion statutes of all 50 states, the January 22, 1973, Supreme Court
abortion decisions set the stage for 25 years of intensely heated and controversial
debates in state legislatures.
On that infamous day, the abortion laws of Texas and Georgia were declared
unconstitutional. The 7-2 vote in Roe v. Wade invalidated a century-old
Texas law which prohibited abortion except where necessary to preserve the
life of the mother.
Roe's companion case, Doe v. Bolton, also decided 7-2, invalidated
Georgia's "reform" abortion statute that allowed abortion where
continuation of the pregnancy would endanger the woman's life or health,
including mental health; where the fetus would likely be born with a serious
defect; or where pregnancy resulted from rape.
But the impact was not confined to two states. The joint decisions caused
a domino effect invalidating every state's abortion law, as well
as the District of Columbia's.
In one day abortion became the only constitutionally protected "surgical
procedure" in the country. Abortion also became the most under-regulated,
under-reported, and under-investigated surgery in the country. Sadly, it
also became and is now the most common surgical procedure performed on women
in America.
Given the sweep of Roe and Doe, states had to start from scratch
to determine what legislation dealing with abortion, if any, would withstand
the ultra protective High Court. Thanks to a carefully conceived and executed
strategy, the pro-life movement has made inroads in passing protective legislation
in several important areas.
Funding
The first breakthrough in state legislation came
in 1975. The Supreme Court upheld the state of Connecticut's right to prohibit
non-physicians from performing abortion. Currently, 43 states have "physician-only"
laws limiting the performance of abortion to physicians.
In 1977, the Court upheld the right of states not to fund abortions. It
found that "[Roe v. Wade] makes no limitation on the authority
of a State to make a value judgment favoring childbirth over abortion, and
to implement that judgment by the allocation of public funds."
In the 1989 Webster decision, the Supreme Court upheld the Missouri
statute that barred the use of public facilities for abortion when the mother's
life was not at stake. In short, it is now clear that it is entirely appropriate
and legal for a state to make a decision to stay out of the abortion business
altogether.
Currently, 29 states have legislation prohibiting the use of state tax dollars
to pay for abortions except to save the life of the mother. (However, a
directive issued by the newly inaugurated President Clinton on January 22,
1993, forced these states to fund abortions in cases of rape and incest
as well, if they are to continue participation in the federal Medicaid program.)
Seven additional states prevent the funding of abortion except in cases
where the life of the mother is endangered, or where the pregnancy resulted
from rape or incest.
This does not include those states that have passed laws prohibiting the
use of public funds for abortion but whose laws have been invalidated by
state courts.
Parental Involvement
In 1979, in the case of Bellotti v. Baird I,
the High Court opened the door for states to pass legislation protecting
the rights of parents to be involved in their minor daughter's decision
of whether or not to have an abortion. Several cases dealing with the constitutionality
of parental involvement have made their way to the Supreme Court. Collectively,
they have clearly established the right of parents to try to be involved
in their minor daughter's life at this crucial time.
Thirty-one states now have parental involvement laws. Unfortunately, only
22 of these protective laws are currently operative. The remaining nine
are enjoined by court orders preventing them from going into effect.
Women's Right to Know/Informed Consent
In Casey v. Planned Parenthood, the court
in 1992 upheld Pennsylvania's law protecting a woman's right to know about
the abortion procedure, be given scientifically accurate information about
the developing unborn child, and be allowed a 24-hour reflective period
to digest the information received.
Since then, 14 states, including Pennsylvania, have passed informed consent/"woman's
right to know" legislation.
Partial-Birth Abortion
More recently, the 1997 legislative session brought
passage of a flurry of state laws banning partial-birth abortions.
In a partial-birth abortion, the abortionist pulls a living baby feet-first
out of the womb and into the birth canal (vagina), except for the head,
which the abortionist purposely keeps lodged just inside the cervix (the
opening to the womb). The abortionist then makes a puncture at the base
of the skull with surgical scissors and spreads the tips to widen the hole.
A suction catheter is inserted into the wound and the baby's brains are
vacuumed out. This causes the skull to collapse, after which the abortionist
completes the delivery of the now-dead baby.
Seventeen states have outlawed this gruesome procedure. Not surprisingly,
however, abortion advocates have already challenged the constitutionality
of the ban in eleven states. A final judicial outcome is yet to come.