Roe v. Wade: Its Legal Progeny

THIRTY YEARS OF SUPREME COURT ABORTION DECISIONS

By Richard E. Coleson, M.A.R., J.D.

In the 1973 case of Roe v. Wade, 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, and which overrode the abortion statutes of all 50 states - - even the most permissive.

Justice Blackmun doubtless agreed with the instant media consensus that the abortion issue had been laid to rest. But while the basic "right" to abortion is in place for now, the justices are still deciding abortion cases, and recent cases have been decided by narrow margins.

In fact, the 30-year wrangling over the volatile abortion issue has been so nettlesome that many observers believe it heavily influenced the Supreme Court members in June 1997 when the justices 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 Planned Parenthood of S.E. Pennsylvania v. 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.

Besides the basic issue of a "right" to abortion, the Supreme Court has ruled on a variety of related issues over the past three decades. The following discussion sets out by topic the Supreme Court's key decisions in these areas. As shall be seen, the core holding of Roe - - that a woman has a right to abortion - - remains currently intact. However, the Court has recently been less hostile to some state regulations of abortion than it was from 1973 until the mid-1980s.

But this trend was interrupted - - after new Clinton appointees took their seats on the Court - - by Stenberg v. Carhart (2000), in which, the Court stuck down Nebraska's ban of the gruesome partial-birth abortion procedure for aborting older unborn children (by extracting the live child feet first up to the head then collapsing the skull, by puncture and suction, for easy delivery). One would think that any new justices would think hard about this shocking 5-4 decision.

The Right to Choose Abortion

In Roe, 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 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, it said 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 an abortion.

But in Roe's companion case, the Court promptly reneged. In Doe v. Bolton, the same seven-member majority expansively defined "health" to include "all factors - - physical, emotional, psychological, familial, and the woman's age - - irrelevant to the well-being of the patient."

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 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.

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.

Clinton's 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.

In the years following Roe, the Supreme 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. Then-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 his position 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 that they feared 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 White, 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. Such laws give a woman seeking abortion information vital to 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 life-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 and Doe did not address the question of the killing of children who are partially born. In Roe, the Court noted that a Texas statute prohibiting such a practice remained in effect.

But in the Stenberg case (2000) cited above, the Court struck a Nebraska law banning partial-birth abortion. Justice Kennedy, who had prevented reversal of Roe with his vote in Casey, said that he didn't intend to encompass partial-birth abortion when he voted to reaffirm Roe. But it was too late - - with new Clinton appointees on the Court, Justice Kennedy's vote was now in the minority.

Facility Regulation

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 (1983). Since abortions were safer (for women) than they had been in 1973, the Akron Court 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 an adequately equipped 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. However, in the wake of Casey, there has been progress in the lower courts in upholding abortion clinic regulations.

Abortionist Qualifications

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 hard 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.

Second-Physician Requirement

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 (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 held 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." Under Danforth (1976), prior to viability no imposed standard of care for the unborn child is constitutionally permitted.

Reporting

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.

Residency Requirements

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.

Spousal Involvement

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.

Parental Involvement

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 the confidential, expedited bypass hearing, the court determines whether the minor is mature enough to make the abortion decision herself or, if not, whether an abortion is in her "best interests."

Parental notice (not consent) 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 a parent to interact with the 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.

Informed Consent

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 to obtain 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.

Waiting Periods

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. The Court upheld the waiting period despite arguments 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.

Public Funding

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 necessary." Since then, abortion advocates have found several state supreme courts willing to require such funding under state constitutions.

In Webster v. Reproductive Health Services (1989) and Poelker v. Doe (1977), the Supreme Court decided that the federal Constitution does not require the government to make public facilities such as hospitals available for use in performing abortions. Also, in Rust v. Sullivan (1991), the Court held that the government may ban public employees from counseling or referring for abortion in public facilities on public time.