Roe v. Wade and the history of abortion regulation

In "Roe," the Supreme Court found that the privacy right in the 14th amendment's view of "personal liberty" encompasses a woman's right to choose an abortion. The Court found that "abortion is a fundamental right." These conclusions are mistaken. The Court's analysis of "the history of abortion regulation" had a lot of errors and did not consider the state of technology in which abortion evolved. Sir Edward Coke, a 16th and 17th century jurist, said that abortion was a "great misprison." Quickening, the point at which a woman feels life, was used to determine fetal viability. State courts, therefore, viewed "abortion after quickening as common law crime." By the end of 1868, 30 to the then 37 states had passed laws restricting abortion. The Supreme Court said that the 19th century laws were passed to guard the mother's health "against the dangers of unsafe operation." In the 15 months before "Roe," 5 state courts said that their abortion laws were constitutional. They said that this was "intended to protect the lives of unborn children." Therefore, the Court's belief that "the state courts focused on the State's interest in protecting "the health of the mother" was unexplainable. The Court said that in many states the woman couldn't "be prosecuted for self-abortion." 17 states did "incriminate the woman's participation in her own abortion," but the Court did not note this. The Court's premise about the greater hazards of late abortions is mistaken. The states were concerned, in the late 19th century, about whether the attempted abortion caused the death of a child. The "right to an abortion" can only be seen as "fundamental" if it is "implicit" in the "ordered liberty" concept or "deeply rooted" in US tradition and history. "Roe" struck down the abortion laws of all 50 states and should be overturned.     

Brief for bioethicists for privacy as amicus curiae supporting appellees

Amicus, an ad hoc group of philosophers, theologians, attorneys, and physicians, believe that adults should consult their doctor when making personal decisions. The doctor-patient relationship would be protected under the Constitution. In "Griswold v. Connecticut," the Supreme Court said that a state law which forbid married couples from using contraceptives was unconstitutional; that the couples should have a right to privacy. In "Roe," the Supreme Court recognized that a patient and her doctor should have privacy. In "Doe v. Bolton," the Supreme Court found that the State of Georgia was violating the patients' and physician's freedom. In "Planned Parenthood of Missouri v. Danforth," the Supreme Court said that a general informed consent provision was alright because it did not take away the abortion decision. The post- Roe state laws were ways to control doctors and patients so that a particular philosophical view could be imposed. The major question in Webster is whether personal decisions should be made by doctors and patients or the state. Both parties must agree to the decision. Section 188.205 of the Missouri law was before the Court in Webster. This section makes it illegal for public funds to be used to encourage a woman to have an abortion that wasn't necessary to save her life. There are medical conditions for which abortion is reasonable - Tay-Sachs disease, for instance. The child usually dies by 3 years of age. Without genetic screening, many at-risk couples would abort all pregnancies. 95% of all prenatal screenings are negative. State medical treatment decisions are arbitrary and impersonal. Having control over important personal decisions is necessary for freedom.     

Brief for 885 law professors in support of maintaining adherence to the Roe decision

This brief opposes the overturn of "Roe v. Wade" and resists weakening "Roe's central holding" that would allow states to overturn legal abortion. The brief was written for 885 law professors. "Roe" was not a "constitutional aberration," or "an exercise of raw, judicial power." Some members of the Supreme Court seem to think that the state has "an overriding interest" in protecting fetal life. Some Court members have questioned "Roe's" trimester framework. A person's decision to abort should be done privately. If women are not free to choose abortion, they will not have equality. There is an absence of "express rights of privacy and procreational freedom" in the Constitution. "Roe" was 1 instance of the Court's recognition of constitutional rights that are not named explicitly. Historical materials are drawn on to show the link between trends in society and the "judicial recognition of unenumerated rights." The most serious questions about "Roe" deal with its trimester framework. Justice Blackmun's majority opinion said that the 1st trimester of pregnancy was personal. "Roe" said that abortions created a medical risk at the beginning of the 2nd trimester. Therefore, the government was more interested in the health of the mother at that time. The state could then regulate abortion "in ways that are reasonable related to maternal health." The start of the 3rd trimester was when the fetus was viable. The right of a woman to end her pregnancy "offends powerful moral forces." Some of "Roe's" critics had their scientific facts wrong. Medical authorities think Justice O'Connor is mistaken when she says that "Roe" is "on a collision course with itself." The 23rd to 24th week of pregnancies where the fetal organs can "sustain life outside the womb." This has not changed since "Roe" was decided in 1973, nor is it likely to in the future. Some "amici" believe that the state can never have an interest in the fetus. The state can not have an interest in the fetus distinct from the woman who will give birth to it. During previability, restricting a woman's procreational rights would not be scientifically supportable. The state does have an interest in "upholding the value of human life." "Roe" is "within the mainstream" of constitutional jurisprudence and should be reaffirmed.     

Abortion on demand in a post-Wade context: must the state pay the bills?

The legal issues involved with the application of the United States Supreme Court decisions in Roe v. Wade and Doe v. Bolton (1973) are reveiwed, particularly the question of whether an indigent pregnant woman now has the right to abortion on demand at public expense. The 2 decisions, based on the Fourteenth Amendment, established that a woman, in consultation with her physician, must be free to choose to terminate her pregnancy, at least in the first trimester. State laws are permitted only to regulate abortion procedures in the second trimester and may only regulate or proscribe abortion itself after the fetus becomes viable. The Court did not rule that indigents had a corollary right to the implementation of abortion, and thus free abortions do not appear to be constitutionally required. However, depending on the type of Medicaid coverage in which the individual state is participating, the medically indigent may receive Medicaid benefits for abortions, at least in the first trimester. Since Medicaid is voluntary for the state, it could drop out of the program entirely or the Congress could specifically exclude abortions from Medicaid coverage. Both actions appear unlikely, however, and abortions for medical reasons clearly seem to fall under Medicaid's purpose. Consequently, despite the Wade and Bolton decisions, the right to abortion is limited by the ability of indigents to pay for it. In the light of the serious complications of illegal abortion, it is concluded that legislators should insure the availability of legal abortions. Such a move would not in itself encourage abortions but would properly extend the right to abortion to all citizens.     

Morgentaler v. The Queen in the Supreme Court of Canada.

In Morgentaler v. R., the Supreme Court of Canada struck down the abortion provisions in the Criminal Code. In a five to two split, a majority of the Supreme Court judges found that section 251 offended a pregnant woman's constitutionally protected right not to be deprived of her "life, liberty, and security of the person." Sheilah Martin reviews the three majority judgments and focuses on the decision written by Madame Justice Wilson. She believes that Madame Justice Wilson's opinion merits special attention in several regards: her conclusions on the constitutional rights of pregnant women; her recognition and validation of women's perspectives on abortion; and her approach to balancing women's interests in reproductive self-determination against the state's interest in regulating reproduction. Sheilah Martin concludes that this decision will reverberate far into the future. Even though it fails to establish clear guidelines concerning governmental power to control access to abortion, its principles outline the legal framework in which future litigation will occur, and it will limit and shape the terms of any ensuing political debate. In addition, Madame Justice Wilson's judgment holds great promise for those looking to the Court to promote the rights of women and other historically disadvantaged groups.     

"Pro-life" absolutes, feminist challenges: the fundamentalist narrative of Irish abortion law 1986-1992

This article asks how Irish abortion law developed to the point of stopping a young pregnant rape victim from travelling abroad to have an abortion in 1992 (Attorney General v.X). The author argues that this case, which ultimately saw the Irish Supreme Court overturn that decision and recognize the young woman's right to abortion, was the last chapter of the fundamentalist narrative of Irish abortion law. The feminist critique of that law needs to consider its particular fundamentalist aspects in order to clarify the obstacles posed to the struggle for Irish women's reproductive freedom. The author argues that a fundamentalist narrative ordered the post-colonial and patriarchal conditions of Irish society so as to call for the legal recognition of an absolute right to life of the "unborn." The Supreme Court's interpretation of the constitutional right to life of the fetus in three cases during the 1980s is evidence that Irish abortion law was constructed through a fundamentalist narrative until that narrative was rejected in the Supreme Court decision in Attorney General v. X.     

Roe v. Wade and the lesson of the pre-Roe case law

The attempt is made in this discussion to demonstrate that the Supreme Court in deciding the Roe v. Wade case should not have decided an abortion case when it did and that the opinion was almost destined to be bad in that the Court could find no persuasive rationale in the pre-Roe cases for each of the points in its decision. In 1973 political forces were actively debating abortion. Abortions had been prohibited by most states, except to save a woman's life, since the 19th century. In the 5 years immediately preceding Roe, 13 states had revised their statutes to resemble the Model Penal Code's provisions, which permitted abortions if the pregnancy threatened the woman's life, if it would gravely impair her physical or mental health, if it resulted from rape or incest, or if the child would be born with grave physical or mental defects. 4 states had removed all restrictions on the permissible reasons for seeking an abortion before a pregnancy passed specified lengths. In short, in many states the political process had yet to decide on abortion, but Roe's rejection of Texas's statute voided almost every other state's statutes as well. Between 1970 and 1972, a flurry of constitutional challenges hit the courts. 3 years was hardly sufficient time for the judicial system to evolve sound analysis for such an emotionally charged issue as abortion. The Court could justifiably have allowed the dispute to simmer longer in the lower courts. There is some indication that a sounder case law might evolved if given time, but that was prevented by Roe. The Court could not find a rationale in 1973, but it decided anyway, suggesting a legislative rather than a judicial process.     

Criminal liability of physicians: an encroachment on the abortion right?

The Supreme Court in 1973 in Roe v. Wade established that decision of first trimester abortion is left to the physician, exercising his best medical judgment, in consultation with the patient. During this period the state may not regulate abortion determination since there is no compelling state interest; therefore a physician performing abortion will be precluded from civil or criminal liability. In second trimester abortion the state has a compelling interest in the health of the mother and may regulate the procedure to protect maternal health; although a previable fetus may be able to survive the abortion, Roe v. Danforth definitively places the woman's right to an abortion above the life of the fetus during the previable stage; therefore the state cannot seek to safeguard the life or health of the fetus during the abortion. Third trimester abortion implies a viable fetus; thus, a compelling state interest in the potential life arises and the state may regulate and proscribe abortion except when necessary for the life and health of the mother. The determination of when viability has been achieved is a matter of judgment resting with the physician who has the choice of techniques and operating procedures which may or may not be fatal to the unborn. It is a question of either termination of pregnancy or destruction of the fetus. In this last case the legal responsibility placed upon the physician is very serious, and involving a risk of civil and criminal liability. Uncertainties as to the boundaries of legal abortion and the threat of criminal liability can only result in a reluctance among physicians to perform second and third trimester abortions, which is against the fundamental right to abortion guaranteed by the Constitution. The Supreme Court will have to elaborate upon the scope of the abortion right, whether it encompasses fetal destruction or only termination of pregnancy, because it directly affects the extent and quality of maternal and fetal care that must be rendered by a physician. If only termination of pregnancy is included the Court must resolve whether the woman's health interests predominate, or whether the physician can be required to enhance fetal survival. Physicians have a right to know the full extent of legal ramifications and implications of legally induced abortion.     

Abortion counseling: to benefit maternal health

This Note examines how both the law and the health care profession neglect women's needs for abortion counseling before, during and after an abortion. Part I analyzes the health care profession's view of counseling, the psychological effects of abortion and how counseling both positively and negatively influences those effects. Part II reviews Supreme Court cases and state law regarding abortion counseling, critizing both the Court's narrow view of counseling and the states' failure to use the legislative process to create laws which benefit maternal health. Part III recommends an expanded role for abortion counseling, in which the counselor can provide emotional support from before the day of an abortion until a woman emotionally recovers from an abortion. This expanded role would be state-mandated, but would remain within constitutional boundaries by providing flexibility for counselors to give individual treatment while respecting a woman's privacy.     

Webster and the fundamental right to make medical decisions

Members of the American Medical Association, the American Academy of Child and Adolescent Psychiatry, American Academy of Pediatrics, American College of Obstetricians and Gynecologists, American Fertility Society, American Medical Women's Association, American Psychiatric Association, and the American Society of Human Genetics have submitted an "amici curiae" brief in support of the appellees of "Webster." The brief did not endorse or oppose the view that the state's interest in fetal health is compelling as fetal viability. Instead, the brief said that: 1) everybody has the right to make medical decisions without the state interfering "up to the point where the state's compelling interest arises;" and 2) even after a compelling interest comes up, state rules must go along with good medical practices. Because some provisions of the Missouri law were not consistent with good medical practice, these provisions were not constitutional. The fetal viability testing requirement would increase risks to the woman and fetus without providing substantial information on viability. The counseling ban would prevent doctors from giving necessary information to pregnant women so that they could make informed decisions. The 1st section of the brief discussed "the medical background of pregnancy and abortion." The earliest age at which a fetus can survive has remained unchanged since "Roe." The medical complications and adverse health effects are fewer from than from childbirth. Abortions have become safer. The brief said that the "right of privacy" is broad enough so that a woman could decide whether or not to end her pregnancy. In "Roe," the Court found that if a woman was going to make a choice about pregnancy, this was the same as other private decisions which are protected in the Constitution. Individual medical decision making is "deeply rooted" in US "history and tradition." Accepted principles are reflected in the fact that the patient has a right to make these decisions based on the "liberty component of the Due Process Clause." Section 188.029 of the Missouri Law would make a doctor do certain tests for fetal viability. They would have no medical value, in most cases, and put a risk on the health of the mother. It was not related to any goal of the state, and was, therefore, unconstitutional. Section 188-205 of Missouri law - which says a doctor can't consult unless the mother's life is endangered was also unconstitutional.     

The legal status of abortion in the States if Roe v. Wade is overruled

This article explores the legal status of abortion in the States if the Supreme Court overrules Roe v. Wade, 410 U.S. 113 (1973), and Doe v. Bolton, 410 U.S. 179 (1973), as modified by Planned Parenthood v. Casey, 505 U.S. 833 (1992). Although an overruling decision eventually could have a significant effect on the legal status of abortion, the immediate impact of such a decision would be far more modest than most commentators on both sides of the issue believe. More than two-thirds of the States have expressly repealed their pre-Roe laws or have amended those laws to conform to the trimester scheme of Roe v. Wade, which allows abortions for any reason before viability and for virtually any reason after viability. Those laws would not be revived by the overruling of Roe. Only a few of those States have enacted post-Roe laws that would prohibit most abortions if Roe were overruled. Slightly less than one-third of the States have not expressly repealed their pre-Roe laws. Many of those laws would notbe effective to prohibit abortion if Roe were overruled either because they allow abortion on demand, for undefined reasons of health or for mental health reasons; because enforcement would be precluded on state constitutional grounds; or because the pre-Roe laws prohibiting abortion have been repealed by implication with the enactment of post-Roe laws regulating abortion. In sum, no more than eleven States, and very possibly as few as eight, would have laws on the books that would prohibit most abortions if Roe were overruled.     

Attorney General v. X

In this case in which a 14-year-old girl said she had become pregnant after being raped by her friend's father, the Attorney General of Ireland had enjoined the girl and her parents from traveling to England for an abortion. A psychologist had testified that in her present state of mind, the girl was suicidal. The Supreme Court of Ireland held that the right to life supersedes all other rights, including the right to travel. However, if there is a real and substantial risk to the life of the mother which can only be avoided by termination of the pregnancy, then an abortion is permissible. The Court determined that the girl's risk of suicide satisfied this condition, and therefore the girl was allowed to terminate her pregnancy.     

Constitutional law--New Jersey abortion statute unconstitutionally vague on its face

The old New Jersey abortion statute held that abortion before the quickening of the child was not indictable. The Young Women's Christian Association (YWCA) of Princeton, New Jersey, is a consolidation of 2 suits in the District Court questioning the constitutionality of the New Jersey statute. The court ruled that the women plaintiffs were without standing to raise the question of constitutionality. The court also ruled that because of the prosecutions for committing illegal abortions, the abortions, the physicians had a sufficient legal interest to argue that the statute deprives the physician of the right to practice medicine according to the highest standards of medical practice and violates the right to privacy of the patients.     

Roe v. Wade is constitutionally unprincipled and logically incoherent: a brief in support of judicial restraint

This "amicus curiae" brief was submitted by the Center for Judicial Studies and 56 members of Congress. They were concerned that "Roe" expands powers that belong to Congress and the states into the realm of federal government. Part I of the brief dealt with Missouri's claim that the laws that were at issue in "Webster" were permitted under "Roe" and shouldn't have been made invalid by lower courts. Most of the brief was in Part II. The thrust of it was that "Roe" was not based on any principle and is incoherent internally; "Roe" said that a privacy right existed under the US constitution. However, "Roe" didn't define this right of personal privacy. "Roe" cited a "line of decisions" to prove this point. However, none of the cases that "Roe" cited pretended to be based on the "right to privacy." They dealt with other issues. "Botsford" was said to be the beginning of the constitutional privacy right. It dealt with a "common law rule of evidence," not a right that was in the constitution. Therefore, it did not define the privacy right. "The process by which "Roe" moved from privacy to abortion was unfounded by judicial fiat." "Roe" said that it was protected by "the compelling interest standard," but did not give a reason why this was so. In "Roe," the woman';s interest in getting an abortion was analyzed in medical terms. But when talking about the State's interest in protecting potential human life, medical considerations were not controlling. Part III of the brief asked that "Roe" be overturned because it said that "a privacy right to abortion" was "devoid of any linkage to the text or history of the constitution." "Roe" should be abandoned because its "inadequacies" are "basic".     

Conforming to the rule of law: when person and human being finally mean the same thing in Fourteenth Amendment jurisprudence

The Fourteenth Amendment was intended to protect people from discrimination and harm from other people. Racism is not the only thing people need protection from. As a constitutional principle, the Fourteenth Amendment is not confined to its historical origin and purpose, but is available now to protect all human beings, including all unborn human beings. The Supreme Court can define "person" to include all human beings, born and unborn. It simply chooses not to do so. Science, history and tradition establish that unborn humans are, from the time of conception, both persons and human beings, thus strongly supporting an interpretation that the unborn meet the definition of "person" under the Fourteenth Amendment. The legal test used to extend constitutional personhood to corporations, which are artificial "persons" under the law, is more than met by the unborn, demonstrating that the unborn deserve the status of constitutional personhood. There can be no "rule of law" if the Constitution continues to be interpreted to perpetuate a discriminatory legal system of separate and unequal for unborn human beings. Relying on the reasoning of the Supreme Court in Brown v. Board of Education, the Supreme Court may overrule Roe v. Wade solely on the grounds of equal protection. Such a result would not return the matter of abortion to the states. The Fourteenth Amendment, properly interpreted, would thereafter prohibit abortion in every state.     

Speech, privacy, and the power of the purse: lessons from the abortion "gag rule" case.

In Rust v. Sullivan, 59 U.S.L.W. 4451 (1991), the US Supreme Court ruled that neither the privacy interests of family planning clients nor the 1st Amendment interests of their counselors prevented the government from banning all discussion of abortions in federally funded family planning clinics. In doing so, the Court also reaffirmed its view that the state and federal legislatures have virtually unlimited discretion in limiting or conditioning social welfare programs, a view having even greater long-term implications for American health policy than the implications of Rust for the constitutional protection of abortion. Rust upheld the Department of Health and Human Services' 1988 directive prohibiting the use of any funds from Title X of the Public Health Service Act (authorizing family planning programs) in programs where abortion is a method of family planning. This means that a clinician may lawfully respond to a client's inquiry about abortion only with a denial that abortion is an option. Thus, while allowing women the constitutional protection to chose an abortion, the Court has allowed the legislature to freely use the power of the purse to discourage or prevent the choice of abortion. Rust's greatest impact may well be in its acceptance of the enormous power wielded by the government over funded activities, especially in health policy. Justice Rehnquist believes there is not constitutional right to health, welfare, or any other government benefit; the legislative branches of the government cannot be required by judicial interpretation of the Constitution to provide any particular benefit or service to anyone. Even when the government chooses to fund a particular benefit, it is free to condition that benefit with virtually no judicially enforceable limits on that discretion.     

The legal status of abortion in the states if Roe v. Wade is overruled

This article explores the legal status of abortion in the States if the Supreme Court overrules Roe v. Wade, 410 U.S. 113 (1973), and Doe v. Bolton, 410 U.S. 179 (1973), as modified by Planned Parenthood v. Casey, 505 U.S. 833 (1992). Although an overruling decision eventually could have a significant effect on the legal status of abortion, the immediate impact of such a decision would be far more modest than most commentators-on both sides of the issue-believe. More than two-thirds of the States have repealed their pre-Roe laws or have amended those laws to conform to Roe v. Wade, which allows abortion for any reason before viability and for virtually any reason after viability. Pre-Roe laws that have been expressly repealed would not be revived by the overruling of Roe. Only three States that repealed their pre-Roe laws (or amended them to conform to Roe) have enacted post-Roe laws attempting to prohibit some or most abortions throughout pregnancy. Those laws have been declared unconstitutional by the federal courts and are not now enforceable. Of the less than one-third of the States that have retained their pre-Roe laws, most would be ineffective in prohibiting abortions. This is (1) because the laws, by their express terms or as interpreted, allow abortion on demand, for undefined health reasons or for a broad range of reasons (including mental health), or (2) because of state constitutional limitations. In yet other States, the pre-Roe laws prohibiting abortion may have been repealed by implication, due to the enactment of comprehensive post-Roe laws regulating abortion. In sum, no more than twelve States, and possibly as few as eight, would have enforceable laws on the books that would prohibit most abortions in the event Roe, Doe and Casey are overruled. In the other States (and the District of Columbia) abortion would be legal for most or all reasons throughout pregnancy. Although the long-term impact of reversing Roe could be quite dramatic, the author concludes that the immediate impact of such a decision would be very limited. This article is current through May 1st, 2007.     

Legal abortion: the impending obsolescence of the trimester framework

Women who wish to terminate a pregnancy, and physicians willing to perform abortions, are subject to increasing harassment from groups which challenge the constitutional abortion right upheld by the Supreme Court in Roe v. Wade. Their vulnerability, in fact, parallels the vulnerability of the abortion right. This Article analyzes the inherent weakness and impending obsolescence of the trimester framework established in Roe. Present medical evidence of maternal health risks and fetal viability demonstrates that the trimester framework is inconsistent with current medical knowledge, and will likely be rendered obsolete by developments in medical technology. The Article suggests that adoption of an alternative constitutional basis for legal abortion is necessary to preserve the abortion right, and explores the utility of two arguments grounded in the equal protection doctrine. Finally, it discusses means of preserving legal abortion within the confines of the trimester framework established in Roe v. Wade.     

The Supreme Court's spring term: abortion, the right to die, and the decline of privacy rights

Wing analyzes the constitutional significance and the important long-term implications for health policy of three 1990 U.S. Supreme Court decisions: Hodgson v. Minnesota, Ohio v. Akron Center for Reproductive Health, and Cruzan v. Director, Missouri Department of Health. Hodgson and Ohio upheld state statutes requiring parental notification of a minor's impending abortion. Cruzan upheld a state court decision refusing to allow the family of a patient in a persistent vegetative state to discontinue life-sustaining treatment. Wing argues that these decisions reach far beyond "the abortion issue" or "the right to die." Not only have they narrowed the constitutional protection of individual privacy, but they allow states to regulate activities like abortion in a manner that indicates that the Court is prepared to repeal the notion that individual privacy is entitled to enhanced judicial protection.     

Lochner redeemed: family privacy after Troxel and Carhart

At least since its 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court has differentiated its review of abortion laws from its scrutiny of other intrusions on family privacy. Whereas abortion restrictions are reviewed under the middling "undue burden" standard, incursions on other family-related liberties, including marriage, kinship, and child rearing are said to be subject to the strict scrutiny ordinarily employed in the defense of fundamental rights. This Article contends that the Court's most recent decisions in this context give reason to reconsider both sides of that equation. Stenberg v. Carhart, striking down Nebraska's ban on "partial-birth" abortions, suggests that the Court's scrutiny in the abortion context will be more aggressive and rigid than most had supposed. At the same time, its decision in Troxel v. Granville, limiting states' authority to order grandparent visitation over the objects of a parent, suggest that there is more fluidity in the Court's review of other family liberties than is conventionally assumed. Together the cases signal a convergence in both sorts of family-privacy controversies toward a common standard of "reasonableness." That standard bears, for many, an uncomfortable association with the much-maligned "natural law-due process formula" of the Lochner era, but Professor Meyer argues that it is precisely the right approach in the context of family privacy. Although more rigid doctrinal formulae are sometimes preferred on the ground that they constrain judicial judgment, here they are undesirable precisely because they obscure the value judgments that are inevitably at the core of every family-privacy decision.