Abortion is the termination of a pregnancy before the embryo or fetus is capable of survival outside the mother's womb. Should a woman have the right to decide whether or when to have an abortion?
In the United States, the state governments traditionally have regulated the performance of abortions. In 1960 every state government had a law making abortion a crime except when it was done to save the mother's life. By 1973, however, 14 states had passed laws permitting abortions under certain other conditions, such as when the pregnancy resulted from rape or incest, or when the baby, if born, would likely suffer from a severe defect. Alaska, Hawaii, and New York repealed most previous restrictions on the woman's right to an abortion.
In 1973 the U.S. Supreme Court made its landmark ruling on abortion rights in Roe v. Wade. The Court struck down a Texas law regulating abortion as an unconstitutional infringement of a woman's right to privacy, which had been established in Griswold v. Connecticut (1965). In Griswold the Court invalidated a Connecticut law prohibiting the use of birth control devices by ruling that it violated a person's constitutional right to a zone of privacy based on several provisions of the Bill of Rights and the due process clause of the 14th Amendment. In Roe the Court held that the “right of privacy [established in Griswold] is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.”
Writing for the Court, Justice Harry Blackmun stated that a woman's right to abortion could be limited, however, by “a compelling state interest” to protect her health and life. The Court decided that during the second trimester of a woman's pregnancy (months 4 to 6), the state might intervene to regulate abortion to protect the mother's health and that the state might regulate or prohibit abortion during the third trimester (months 7 to 9). During the first trimester (months 1 to 3) of a pregnancy, however, it seemed unlikely that there would be a reason to restrict abortion rights in order to protect the health and life of the mother.
Writing in dissent, Justice Byron White could not find in the Constitution the right to privacy upon which the Roe decision was based. Justice White helped to frame the controversy about abortion rights that has continued since the Roe decision. Many critics, like Justice White, have believed that questions about abortion rights should be resolved by state governments, not by the Court, as had been the longstanding practice in the American federal system of government.
Many critics of the Roe decision, however, have opposed it on religious or moral grounds. They reject abortion rights because, in their system of belief, abortion is a sin or morally wrong.
Activities to counter or overturn the Roe decision have persisted and have led to legal challenges in federal courts. But attempts to erect barriers to abortion rights have mostly failed, as have efforts to overturn Roe.
In Harris v. McRae, (1980), however, the Court held that “although government may not place obstacles in the path of a woman's exercise of her freedom of choice [to have an abortion], it need not remove those not of its own creation. Indigency [being poor] falls in the latter category.” As a result of this ruling, poor women who could not afford to pay for an abortion were no longer able to use federal Medicaid funds for one, except in cases of rape or incest or when the mother's life is threatened. Further, in Ohio v. Akron Center for Reproductive Health (1990), the Court upheld a state law that required minors (those below adult age) seeking an abortion either to notify one parent or get approval from a local court of law.
A major legal challenge to Roe emerged in Webster v. Reproductive Health Services (1989). This case concerned the constitutionality of a 1986 Missouri law that included several provisions for restricting a woman's right to an abortion. The Court upheld only two. One banned the use of public facilities or public employees to carry out an abortion. The other restriction pertained to the performance of an abortion on a woman carrying a fetus thought to be more than 20 weeks old. Before performing such an abortion, the physician must determine, through medical testing, whether the fetus is viable, or capable of living outside the mother's womb. If it is viable, the abortion may be prohibited.
The Webster decision thus modified the second-trimester rule in Roe, which held that all regulations on abortion rights must be related to protecting the health of the mother. The Webster decision, however, stopped short of overturning Roe, which antiabortion rights advocates had wanted. And the Webster decision held that while government regulation of abortion is permissible, such regulation could not impose “undue burdens” or unreasonable obstacles to a person seeking an abortion.
In 1992, in Planned Parenthood v. Casey, the Court used the “undue burden” standard to uphold most of the Pennsylvania Abortion Control Act. The sustained parts of this law required a woman to wait 24 hours to have an abortion after receiving specific information from a doctor about the procedure, the condition of the fetus, and the possible alternatives to abortion. The one part of the law that the Court found unconstitutional was the requirement that a married woman inform her husband about an intended abortion. As in the Webster case, however, the Court's majority refused to overturn the Roe decision.
In 2000 (Stenberg v. Carhart), the Supreme Court struck down a Nebraska law (and, in effect, 30 similar state laws) that banned a procedure called “partial-birth” abortion. Doctors have used this procedure, which they call D&X (dilation and extraction), to terminate late-term pregnancies. Writing for the Court's 5-to-4 majority, Justice Stephen Breyer declared the Nebraska law unconstitutional because it did not provide an exception for cases when the life or health of the mother is in danger. Further, he held the law was written so broadly that it could be used to prohibit abortion procedures other than D&X, which would violate the Court's Roe decision. Writing in dissent, Justice Anthony Kennedy deplored the Court's decision and said the 1997 Nebraska law was made “to forbid a procedure many decent and civilized people find so abhorrent as to be among the most serious of crimes against human life.”
See also Griswold v. Connecticut; Privacy, right to; Roe v. Wade; Webster v. Reproductive Health Services
Sources
- David J. Garrow, Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade, 1923–1973 (New York: Macmillan, 1993).
- Laurence H. Tribe, Abortion: The Clash of Absolutes (New York: Norton, 1990)
