ABORTION (U.S. LAW)

The United States has been making laws about abortion since the 19th century. From the middle to latter decades of that century, distinctions between abortions preformed before and after "quickening" passed away, and the vast majority of states penalized most abortions, as well as the advertising of abortion services and information. While doctors were generally subject to criminal penalties for performing abortions, few states imposed such penalties on the women who sought them.

Beginning in the 1960s, several states enacted laws that permitted abortion in particular circumstances such as rape and incest, and in cases in which a doctor concluded that a pregnancy posed a danger to the mother's life or health. Some states also allowed abortions during approximately the first trimester of pregnancy. In response, a rapidly developing pro-life movement supported referenda and legislation to reverse permissive abortion laws. These pro-life campaigns were largely successful during the late 1960s and the early years of the 1970s.

The Legalization of Abortion. This democratic process at the state level was largely halted in 1973 with the United States Supreme Court's decision in Roe v. Wade and its companion case Doe v. Bolton. In these cases, the Supreme Court announced that there could be found in the U.S. Constitution a right of "privacy" broad enough to encompass a woman's decision to terminate her pregnancy by abortion; unborn human lives were not "persons" entitled to protection under the Fourteenth Amendment. Furthermore, states could not pass abortion laws shielding unborn life from abortion to a degree greater than the federal constitution without running afoul of women's federal constitutional right to choose abortion.

The Roe Court established standards for state regulation of abortion with reference to the three trimesters of pregnancy. On the surface, it appeared that these standards allowed states to restrict abortion to a greater degree as a pregnancy progressed. In effect, however, the Court's standards prohibited states from banning any abortion throughout pregnancy. Even in the last trimester, states could not forbid any abortion if an abortion provider would state that it was necessary for a woman's "health." The Doe decision defined "health" in the abortion context very expansively to include "all factors—physical, emotional, psychological, familial, and the woman's age—relevant to the well-being of the patient."

After Roe v. Wade. In response to Roe, a movement arose in the 1970s to add a "human life amendment" to

the federal constitution. Two leading versions of this amendment were proposed. The first would declare the unborn human life a constitutional "person" entitled to the Fourteenth Amendment's protection of life. A second would allow all states, if they wished, to pass laws protecting the lives of the unborn as they had before Roe. While there arose significant momentum for such an amendment over the course of the 1970s and early 1980s, no such amendment has yet passed. The passage of a human life amendment remains an ultimate goal of the pro-life movement.

Also in response to Roe, state legislatures passed a great number and variety of laws intended either to restrict legal abortion based on the mother's reasons for seeking abortion or on the length of her pregnancy, or to regulate (usually limit) the conditions under which abortion could take place. Abortion advocates regularly challenged these laws in federal court; as a result, many abortion law cases were appealed to and ultimately decided by the United States Supreme Court. During the 1970s and 1980s, the Supreme Court most often interpreted the privacy right announced in Roe quite expansively, and invalidated state laws regulating or restricting abortion. From 1976 to 1986, for example, the court held: that a husband's interests in his unborn child are not greater than a wife's right to seek an abortion (Planned Parenthood v. Danforth ); that parents have only a limited right to direct their minor daughters' abortion decisions, which right can be assumed by a judge (Bellotti v. Baird ); that safety regulations may not be imposed upon abortion clinics if compliance would create significant financial obstacles to women seeking abortions (Akron v. Akron Center for Reproductive Health ); and that abortionists may not be directed to use the post-viability abortion method most likely to result in a live child (Colautti v. Franklin ).

The judicial trend to render the abortion right virtually absolute peaked in the decision of Thornburgh v.

American College of Obstetricians and Gynecologists. In this case, the Supreme Court struck down a Pennsylvania law requiring abortionists to obtain a woman's informed consent prior to performing an abortion. Dissenting from the majority opinion, Roe supporter Justice Warren Burger wrote: "We have apparently already passed the point at which abortion is available merely on demand. If the statute at issue here is to be invalidated, the 'demand' will not even have to be the result of an informed choice."

Roe v. Wade Questioned . In 1989, the tone of Supreme Court abortion jurisprudence changed somewhat in Webster v. Reproductive Health Services. In this case, while the Court explicitly refused to reconsider Roe, a majority of justices held that the right to choose an abortion should be demoted from the status of a "fundamental" constitutional right to that of a "liberty interest." The Court upheld Missouri laws that: (a) permitted the use of state resources for childbirth, but not for abortion; (b) mandated viability testing at 20 weeks' gestation and later prior to the performance of an abortion; (c) directed that all state laws should be interpreted to protect unborn children, subject to existing constitutional and case law precedents.

After Webster, two cases clarified the law concerning parental involvement in minors' abortions. In Hodgson v. Minnesota and Ohio v. Akron Center for Reproductive Health, the Supreme Court held that one or both parents could legally be required to receive notification of an unmarried minor's abortion decision if the daughter was provided the opportunity of a "judicial bypass," i.e. appealing to a judge to go forward with the abortion without parental notification.

It was widely expected that the Supreme Court would continue to weaken Roe with its decision in Planned Parenthood v. Casey in 1992. The opposite occurred. In a plurality opinion authored by the appointees of two anti-abortion presidents, George Bush, Sr., and Ronald Reagan, Roe was reaffirmed, albeit with a bimester (versus a trimester) scheme for reviewing state abortion laws. After viability, the old standard would apply: abortions declared to be for a woman's "life or health" could not be restricted. Pre-viability, abortion laws would be judged according to a new standard: whether or not they imposed an "undue burden" or "substantial obstacle" to any woman's obtaining any abortion. This standard was attacked by the dissenters in Casey as one subject to wildly varying and subjective interpretations.

The plurality opinion in Casey was silent regarding whether Roe had been rightly decided. It opined, instead, that abortion had become necessary for women to plan their lives in the event their birth control should fail. The Court also indicated that it believed that its authority would be undermined by a reversal of Roe.

Partial Birth Abortion. The movement to ban a practice known as "partial-birth abortion" began a new chapter in the legal and political struggle over abortion in the United States. In the early 1990s, pro-life advocates learned of the development of a new method for terminating the lives of partially-born children. In a paper delivered at an annual meeting of the National Abortion Federation (a trade association for abortionists and abortion clinics), abortionist Dr. Martin Haskell of Ohio described a procedure he had helped develop called "Dilation and Extraction." Used on unborn human lives from approximately 16 to 32 weeks gestation, the procedure involved: (1) dilating a pregnant mother's cervix over several days; (2) forcibly converting the body of the living unborn child to a breech position in the womb; (3) with forceps, grabbing a leg of the child and dragging its entire body up to the base of the neck outside the mother's body; (4) stabbing the child with a pair of scissors at the base of the brain; (5) with a suction device, evacuating the contents of the skull; (6) crushing the skull and removing the entire body from the mother.

Pro-life groups disseminated information about this procedure widely to the public, the media, and to Congress. In 1995, legislation was introduced in Congress to ban this procedure; it was entitled the "Partial-Birth Abortion Ban Act." The bill commanded support from many self-described "pro-choice" members of Congress. It also had bi-partisan support. Public opinion polls showed up to 70 percent of American citizens favoring passage of the bill, including a majority of self-described "pro-choice" men and women. Still, after several attempts, the bill did not become law; it was twice vetoed by President William Clinton. While the House of Representatives easily overrode such vetoes, the Senate remained a few votes short of the number needed for an override.

While the federal Congress deliberated, however, 30 states passed legislation banning partial-birth abortion. These laws were immediately challenged by abortion advocates, and in 1999 the U.S. Supreme Court granted certiorari to hear the dispute over the partial-birth ban passed by the legislature of Nebraska. The Court's opinion in that case, Stenberg v. Carhart, in the eyes of many veteran legal analysts, marks a return to the days when the constitutional abortion right was interpreted so broadly that it swallowed all attempts at regulation. In Stenberg, writing for the 5–4 majority, Justice Breyer stated that Nebraska's law failed the Casey test; the law placed an undue burden on women's right to abortion because it could be interpreted to ban the most common form of second trimester abortions, the dismemberment or "Dilation and Evacuation" method. He also wrote that—despite the lack of empirical scientific evidence on the medical necessity for partial-birth abortion—the state was required to make a "health exception" to the ban in the event that any abortionist might decide that this procedure would be marginally better for any woman seeking an abortion.

The majority's opinion provoked blistering dissents from Chief Justice Rehnquist and Justices Thomas, Scalia, and Kennedy. Justice Scalia compared Stenberg with the Supreme Court decisions allowing slavery (Dred Scott ) and the internment of Japanese American citizens during World War II (Korematsu ). Justice Kennedy, a member of the Casey plurality, argued that the Court had turned its back on Casey 's invitation to accord greater weight to states' interests in unborn life. In emotional language, he described partial-birth abortion and argued for Nebraska's right to declare such a procedure a threat to respect for all human life and to the future of the medical profession.

Despite the Stenberg decision, the struggle over partial-birth abortion altered the legal and political landscape in ways fundamentally harmful to abortion advocates in the United States. Public opinion polls taken in the late 1990s showed pro-life support even with support for legal abortion for the first time since the early 1970s. During the federal congressional debate over partial-birth abortion, abortion advocacy groups, for the first time in decades, were forced to answer hard questions in the media. False statements made repeatedly by abortion advocates were exposed by reporters and in congressional hearings broadcast live on C-SPAN. While the fate of state and federal bans on partial-birth abortions is not yet decided and the Stenberg opinion was a major legal blow to the pro-life movement, the campaign to ban partial-birth abortion advanced the credibility of the pro-life movement in ways that will be felt for years.

Bibliography: The texts of all United States Supreme Court decisions can be found in the official U.S. Supreme Court reports. The legal, political, and social history of abortion in the United States during the nineteenth century can be found in m. grossberg, Governing the Hearth: Law and the Family in Nineteenth–Century America (Chapel Hill, N.C. 1985). Abortion law and practice from the nineteenth century to today is found in m. olasky, Abortion Rites: A Social History of Abortion in America (Wheaton, Ill. 1992).

[h. m. alvare]