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Abortion

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Description: Intentional expulsion or removal of the fetus from the womb except for the purpose of accomplishing a live birth or removing a dead fetus from the womb.


Significance: With its controversial decision in Roe v. Wade (1973), the Supreme Court declared that women had the right to have an abortion, which it later interpreted to prohibit laws that unduly burdened a woman's ability to choose an abortion until the third trimester of pregnancy.


Scarcely any constitutional issue provoked more controversy in the last half of the twentieth century than the issue of whether the U.S. Constitution protected a woman's right to obtain an abortion. On some issues during this period, such as racial segregation, the Supreme Court was able to guide the country toward an ultimate consensus. However, on the issue of abortion, the Court was unable to accomplish such closure. The two major political parties partially defined themselves by reference to their respective attitudes toward this question, often using the abortion issue as a litmus test for their evaluation of potential Supreme Court justices. Protesters marked the anniversary of the Court's original abortion decision with vigils in front of the Court. Legislators, both federal and state, proposed an endless series of laws that would restrict or at least discourage abortions. In the last decade of the twentieth century, the Court stood by its original declaration that the right to abortion was protected by the Constitution. Nevertheless, the Court redefined the standard to be used in evaluating laws relating to abortion with the effect of increasing the ability of state and federal lawmakers to regulate in this controversial area.


Before the Right to Abortion

Prior to the nineteenth century, laws regulating abortions were virtually unknown because the procedure was extraordinarily dangerous and this danger operated as a deterrent, making abortion-banning laws largely superfluous. However, improved medical techniques in the nineteenth century made abortions more common and prompted state lawmakers to prohibit them. By the middle of the twentieth century, abortion, except when necessary to protect the pregnant woman's life, was illegal everywhere in the United States. Beginning in the middle of the twentieth century, however, the Supreme Court determined that not all state laws bearing on issues of procreation were immune from constitutional scrutiny. In Skinner v. Oklahoma (1942), the Court determined that a state law providing for compulsory sterilization of certain habitual criminals amounted to an unconstitutional discrimination in violation of the Fourteenth Amendment's equal protection clause. The Court concluded that certain rights were sufficiently fundamental to require the government to demonstrate an overwhelmingly persuasive justification before depriving selected people of these rights. Though the Constitution nowhere specifically enumerates a right to procreation, the Court nevertheless concluded that this right was sufficiently fundamental to require strict scrutiny of the sterilization law. Finding no compelling purpose served by the law, the Court declared it unconstitutional. Two decades later, the Court again turned to a consideration of whether the Constitution protected individuals from state laws that intruded into matters relating to procreation. Griswold v. Connecticut (1965) called upon the Court to determine the constitutionality of a state law prohibiting use of contraceptives. By the early 1960's this kind of law was extraordinarily rare, prompting Justice Potter Stewart to characterize it as “exceedingly silly,” but its constitutional infirmity was not immediately apparent. Justice William O. Douglas, though, writing for the Court, concluded that the right to use contraceptives lay within a zone of privacy protected by penumbras of various constitutional provisions. Other justices argued in concurring opinions that the right to use contraceptives was a species of the liberty protected from undue deprivations by the Fourteenth Amendment's due process clause. Justices Hugo L. Black and Stewart dissented. Black, in particular, challenged the majority's willingness to use the due process clause to scrutinize the reasonableness of laws affecting rights not specifically enumerated in the Constitution. He accused the majority of resurrecting the same form of substantive due process employed by the Court earlier in the century in cases such as Lochner v. New York (1905), which invalidated what the Court viewed as unreasonable restrictions on the freedom of contract.


The Abortion Ruling

The Court's holding in Griswold suggested that the Constitution protected a zone of privacy relating to matters of procreation, though the justices remained divided in their views of precisely where to root this right of privacy in the Constitution's text. Such controversy as the case engendered, however, was mostly abstract because an overwhelming majority of states had long since abandoned laws against the use of contraceptives. When the Court turned to the subject of abortion in Roe v. Wade (1973), however, it confronted prohibitions against abortion that were still in force in a majority of the states. The decade before Roe had seen some change in state laws relating to abortion. The 1962 Model Penal Code, drafted by the American Law Institute and followed by some states, allowed for abortions in cases involving rape or serious birth defects. A few states New York, Alaska, and Hawaii had repealed their antiabortion laws. However, a majority of states retained significant restrictions on the ability of women to obtain abortions, and in Roe, the Court swept aside virtually all these laws. Justice Harry A. Blackmun, writing for the majority, concluded that the right of privacy previously recognized in cases such as Griswold was broad enough to encompass a woman's right to an abortion. He located the constitutional right of privacy in the Fourteenth Amendment's due process clause, which protected against deprivations of life, liberty, or property without due process of law. Finding the right to abortion fundamental, he determined that the government could not abridge the right without satisfying a strict review, which entailed demonstrating that the abridgment was necessary to serve some compelling governmental interest and that it was the least restrictive means of achieving that interest. Using this formulation, Blackmun turned to the interests purportedly served by state abortion regulations: protecting the health of the pregnant woman and protecting the potential life of the unborn fetus. Blackmun suggested that no consensus existed as to when human life began and that, in any event, the fetus was not a “person” entitled to constitutional protection. Dividing pregnancy into three trimesters, Blackmun concluded that in the first trimester of pregnancy, neither a state's interest in the health of the pregnant woman nor its interest in the potential life of a fetus justified restrictions on abortion. In the second trimester, though, he found abortions sufficiently dangerous to the health of the pregnant woman to justify such regulations as necessary to protect the woman's health. Finally, after viability, in the third trimester, Blackmun reasoned that the state's interest in the potential life of the fetus was sufficiently weighty to justify a prohibition against all abortions except those necessary to preserve the life or the health of the pregnant woman. The abortion right thus established by Roe was virtually absolute during the first three months of pregnancy, subject only to regulations designed to protect the woman's health during the second three months, and subject to prohibition to protect the fetus during the last three months.


Responses to the Ruling

Though the Court's decision in Roe was widely hailed in some quarters of American life, criticism of the Court's decision was immediate and vociferous. Some legal scholars argued that the Court substituted its judgment on a controversial issue for the judgment of political majorities without constitutional justification. They agreed with Justice Black's claim in Griswold that the Court's use of the due process clause to evaluate the reasonableness of laws affecting rights not specifically protected by the Constitution resurrected in liberal political garb the same spirit that had inspired conservative justices to invalidate laws restricting the unenumerated right to contract in the first part of the twentieth century. Scholars supportive of the result in Roe argued that the Court's reasoning was correct. The problem with cases such as Lochner, they argued, was not that they protected unnamed fundamental rights, but that they designated the right to contract as fundamental. In contrast, they agreed with the Court that the right of privacy, including the right of a woman to choose to have an abortion, was indeed fundamental and should be protected from unreasonable legislative interference. The Court's decision in Roe prompted the emergence of a right-to-life movement dedicated to overturning it, whether by constitutional amendment, legislative action, or reconstitution of the Court itself. Politicians opposed to the Court's ruling responded by proposing legislation and a constitutional amendment that would declare the fetus a “person” and therefore subject to constitutional protection. Neither the legislation nor the amendment succeeded in gaining passage, however. Opponents of the decision eventually turned their attention to the composition of the Court that had rendered the decision in Roe and, especially during the 1980's, attempted to screen nominees to the Court as to whether they approved or disapproved of Roe's reasoning. This effort also produced only limited success. In the meantime, legislatures especially at the state level passed a variety of legislation that did not entirely prohibit abortions but placed a variety of obstacles in the paths of women seeking to exercise their right to seek an abortion. It remained to be seen after Roe whether such regulations would pass constitutional muster.


Post-Roe Abortion Regulations

In the fifteen years immediately after the Roe decision, abortion regulations generally found a cool welcome in the Court. Relying on the trimester scheme announced in Roe, the Court generally invalidated all laws that restricted the ability of women to obtain an abortion before the last trimester of pregnancy. For example, the Court declared laws requiring a spouse's consent to an abortion unconstitutional in Planned Parenthood of Central Missouri v. Danforth (1976). Restrictions on various abortion techniques were also invalidated, as were requirements that abortions be performed in hospitals as opposed to clinics. Moreover, the Court was initially hostile to laws designed to discourage abortions, such as those requiring a waiting period before a woman obtained an abortion or those requiring physicians to provide specific counsel to patients about the dangers of the abortion procedure. The Court upheld a few forms of abortion regulation. It sustained the constitutionality of laws requiring parental consent when the woman seeking an abortion was a minor as long as the law also provided a means for the minor to obtain the consent of a judge rather than her parents. More significantly, the Court held that the right to an abortion did not include the right to have an abortion financed at public expense. In Harris v. McRae (1980), the Court upheld the constitutionality of the Hyde Amendment (1976), a federal law that prevents the use of Medicaid funds to pay for abortions except where necessary to save the pregnant woman's life. A majority of the Court, in an opinion by Justice Stewart, distinguished between laws that impeded a woman's right to seek an abortion and laws that simply declined to facilitate that right. According to the Court, although the federal or state governments could not take away a woman's right to an abortion, they nevertheless need not subsidize it.


A Conservative Turn

During President Reagan's two terms of office in the 1980's, he made it a priority to nominate justices to the Court who would favor overruling Roe v. Wade. He partially achieved this purpose by appointing Justice William H. Rehnquist one of the original dissenters in Roe as chief justice upon the retirement of Chief Justice Warren E. Burger. Late in his second term, President Reagan attempted to appoint Robert H. Bork, an outspoken critic of Roe, to fill the seat on the Court vacated by Justice Lewis F. Powell, Jr., only to have the Senate reject the nomination. Nevertheless, Reagan's other nominees Sandra Day O’Connor, Antonin Scalia, and Anthony M. Kennedy were all viewed as representing some measure of dissatisfaction with the decision in Roe. By the close of the 1980's, some reconsideration of Roe seemed imminent. In Webster v. Reproductive Health Services (1989), a majority of the Court appeared to reject a rigid view of the trimester analysis of Roe by upholding a requirement that fetuses be tested for viability after twenty weeks of pregnancy. Under Roe, twenty weeks, being within the second trimester, fell within a period when the state's interest in the potential life of the fetus was insufficient to justify any impediment to a woman's abortion right. Four justices were prepared to overrule Roe explicitly on this point. Justice O’Connor concurred in the result but was unwilling to repudiate Roe's trimester approach completely. In the wake of the decision in Webster, observers of the Court speculated that a majority of the justices were poised to revisit Roe. Four justices remained solidly behind the precedent William J. Brennan, Jr., Thurgood Marshall, John Paul Stevens, and Blackmun–and dissented vigorously from the holding in Webster. Standing on the opposite side were Chief Justice Rehnquist and Justices Scalia, Kennedy, and Byron R. White. Justice O’Connor stood in the middle apparently willing to reconsider at least some aspects of Roe v. Wade. In the years immediately following Webster, President George Bush added two more justices to the Court to replace staunch defenders of Roe. Justice David H. Souter took the seat formerly held by Brennan, and Justice Clarence Thomas filled the seat vacated by Marshall. These appointments seemed likely to tip the balance against continued adherence to the principles of Roe v. Wade.


The Revolution That Was and Was Not

In 1992 a Court largely reconstituted from its composition at the time of Roe considered a cluster of abortion regulations in Planned Parenthood of Southeastern Pennsylvania v. Casey, including a requirement that women seeking an abortion wait at least twenty-four hours after being given information by a physician about the nature of the abortion procedure, the fetus's developmental stage, and alternatives to abortion. The Court also considered a requirement that married women notify their husbands of their intent to have an abortion. The widely anticipated decision of the Court proved to frustrate many prognostications about its likely result and to satisfy neither those who wished to abolish the Roe- given right to abortion nor those who wished to defend it against all government restrictions on the abortion procedure. Three justices joined to write the opinion for the Court: O’Connor, Kennedy, and Souter. The first major element of their opinion was to reaffirm the basic holding of Roe v. Wade that the Constitution guaranteed the right to abortion. With an eye to the profound political controversy still surrounding abortion nearly two decades after Roe, the justices argued that adherence to the core of the Court's previous holding was necessary to sustain the Court's legitimacy and to prevent it from appearing to bow to political pressure. They were joined in this reaffirmation of Roe by Justices Blackmun and Stevens. However, the Court's opinion, while not overruling Roe, nevertheless substantially revised the formulation originally adopted by the Court in Roe. Instead of the trimester scheme, which prevented laws from interfering with a woman's choice to have an abortion except to protect her health after the first trimester and to protect the fetus after the second trimester, the Court focused on whether a particular law amounted to an undue burden on the right to abortion. Under this formulation, some regulations of abortion might be undertaken throughout a pregnancy. Applying this new test, a majority of the Court found that the twenty-four-hour waiting period was not an undue burden, but that the spousal notification was an unconstitutional burden on a woman's right to an abortion.



Further Reading

  • The Ethics of Abortion: Pro-Life v. Pro-Choice, edited by Robert M.Baird and Stuart E. Rosenbaum (Amherst, N.Y.: Prometheus, 2001), provides a reasoned appraisal of the conflicting views of the pro-life and pro-choice sides in the abortion debate. Kathlyn Gay's Abortion: Understanding the Debate (Berkeley Heights, N.J.: Enlow Publishers, 2004) is a contemporary analysis of the competing positions relating to the moral and legal status of abortion. N. E. H. Hull and Peter Charles Huffer's Roe v. Wade: The Abortion Rights Controversy in American History (Lawrence: University of Kansas Press, 2001) tries to locate the Roe v. Wade decision in the context of broader social changes in American society. Abortion: The Supreme Court Decisions, edited by Ian Shapiro (Indianapolis, Ind.: Hackett, 1995), collects the major legal decisions defining the current constitutional law concerning abortion. For further background, readers may consult The Abortion Controversy: A Documentary History, edited by Eva R. Rubin (Westport, Conn.: Greenwood, 1994), which includes both Supreme Court materials and other important political documents relating to abortion, and Abortion: A Reference Handbook, by Marie Costa (2d ed., Santa Barbara, Calif.: ABC-CLIO, 1996), which offers a variety of background information concerning the abortion controversy, including a chronology of abortion laws from ancient times to the present, biographies of those involved in the abortion debate, and a variety of statistics concerning abortion. A variety of sources treat the historical context of the Court's abortion decisions. Liberty and Sexuality: The Right to Privacy and the Making of “Roe v. Wade,” by David J. Garrow (New York: Macmillan, 1994), is a sweeping history of the cases and controversies leading up to the Court's decision. “Roe v. Wade”: The Untold Story of the Landmark Supreme Court Decision That Made Abortion Legal, by Marian Faux (New York: Macmillan, 1988), focuses more specifically on the trial and appeal of Roe itself. Rehnquist Justice: Understanding the Court Dynamic, edited by Earl M. Maltz (Lawrence: University Press of Kansas, 2003), The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism, by Thomas M. Keck (Chicago: University Of Chicago Press, 2004), and A Court Divided: The Rehnquist Court and the Future of Constitutional Law, by Mark Tushnet (New York: W. W. Norton, 2005), touch on more recent Court decisions regarding abortion.
  • The interplay between the Court and other social actors may be explored in Lee Epstein and Joseph F. Kobylka's The Supreme Court and Legal Change: Abortion and the Death Penalty (Chapel Hill: University of North Carolina Press, 1992), which emphasizes the role that legal arguments played in constitutional cases involving abortion and the death penalty, and in Neal Devins's Shaping Constitutional Values: Elected Government, the Supreme Court, and the Abortion Debate (Baltimore, Md.: Johns Hopkins University Press, 1996), which explores the relationship between the Court and politics with respect to the abortion controversy. Abortion: The Clash of Absolutes, by Harvard Law School professor Laurence H. Tribe (New York: Norton, 1992), presents a summary of the constitutional issue from the standpoint of a position protective of abortion rights. Mary Ann Glendon's Abortion and Divorce in Western Law (Cambridge, Mass.: Harvard University Press, 1987) provides an international perspective on the issue of divorce by comparing the Court's treatment of the issue with the results of decisions in the courts of other nations. Finally, Wrath of Angels: The American Abortion War, by James Risen and Judy L. Thomas (New York: Basic Books, 1998), is an illuminating account of the abortion protest movement inaugurated by the Court's decision in Roe v. Wade.