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Truth Through Combat

A Brief Legal History of Abortion

A Brief Legal History of Abortion

This document addresses several questions in an attempt to provide a brief history of abortion law in US courts. The document begins by inquiring into broad questions of constitutional principle, then moves towards greater detail by considering the most important case in abortion law – Roe v Wade – and finishes by asking about unresolved issues in abortion law.

1. What is the judicial history and background on which questions of personal liberty are based in US constitutional law?

2. What are the legitimate interests of government with regard to abortion, according to US constitutional law?

3. How has Roe v Wade been implemented?

4. What are some of the issues that the US Supreme Court hasn’t dealt with yet concerning abortion law?

  • Principal Question: What is the judicial history on which questions of personal liberty are considered?
    • Subquestion: How does the Court view the relationship between personal liberty and the interests of government?

The story begins with enactment of the 14th Amendment to the Constitution: The creation of a right to liberty is the ground for a series of later abortion and reproductive health cases in which the court relied on substantive due process in order to determine if liberty was unduly enjoined. SDP is defined in Casey as “barring certain government actions regardless of the fairness of the procedures used to implement them.” (quoting Daniels v Williams). Harlan relates the matter historically:

[T]he guaranties of due process, though having their roots in Magna Carta’s ‘per legem terrae’ and considered as procedural safeguards ‘against executive usurpation and tyranny,’ have in this country ‘become bulwarks also against arbitrary legislation.’ (Harlan quoting Hurtado v California).

Once SDP is thus defined, the question becomes one of finding the proper “fundamental rights” which it supports. The Court has eschewed the view that SDP only supports the extension of those rights outlined in the Bill of Rights (specifically in Amendments 1-8). Instead, there is a series of rights, extending beyond the mere protections afforded by the BoR. Such rights must be defined by careful measure of American liberty. The Court has also rejected the argument that only those rights extant at the time of enactment of the 14th Amendment should be protected. Instead, the following standard applies:

[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This ‘liberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints,…and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment. (Poe v Ullman).

The practical impact in the present context is that “the Constitution places limits on a State’s right to interfere with a person’s most basic decisions about family and parenthood…” (Casey, O’Connor-Kennedy-Souter).

The Court also concludes – in keeping with the Harlan formulation above – that there is no simple rule by which one can measure the scope of liberty, but that courts must exercise “reasoned judgment.” Again, Harlan:

Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court’s decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society…The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. (Poe v Ullman).

The predominant question, therefore, becomes the following: Given the presence of a broad right to liberty based on the traditions of the Nation, how shall we determine the due weight to be accorded to legitimate interests on the part of government when the pursuit of those interests interferes with the broad right to liberty? The Court is thus embarked on a course of balancing competing interests. Casey holds the following:

These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the 14th Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

In the case of pregnancy and women, a unique case presents itself. In assessing the weight of the liberty interest against the weight of the state’s interests, one must first characterize the role of pregnancy and woman in the history of the Nation as it relates to liberty. Here, the Court finds (again in Casey), the following:

…the liberty of the woman is at stake in a sense unique to the human condition and so unique to the law. The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear. That these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love cannot alone be grounds for the State to insist she make the sacrifice. Her suffering is too intimate and personal for the State to insist, without more [reasoning], upon its own vision of the woman’s role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society.

· Principal Question: What are the legitimate interests of government with regard to abortion?

o Subquestion: What methods may government employ in pursuing these legitimate interests?

For the answer to these questions, we turn to Roe.

Roe acknowledges the liberty right of women to make private decisions about their health care. It weighs this liberty interest, however, against the right of jurisdictions to limit abortion when such limitations are based on two legitimate interests: (1) The interest of the jurisdiction in protecting the health of the mother. (2) The interest of the jurisdiction in protecting the potential life of the fetus.

The trimester system that Roe employs deals directly with the first interest: states may regulate abortion when doing so would further the state’s interest in protecting the health of the mother. The Court reasons as follows:

1. Since first-trimester abortions are generally safer than carrying a child to full term, jurisdictions may not restrict abortion in the first three months of pregnancy.

2. Because the dangers associated with abortion rise with the passage of time, the state may substantially regulate abortion in the second trimester, but again only in keeping with its interest in protecting the health of the mother. This amounts to a requirement that states permit abortions in the 2nd trimester, but also amounts to permission to regulate such abortions.

With regard to the second interest, we must say that this interest also rises with the passage of time: the Court holds that a state’s interest in the protection of the potential life of the fetus increases in substantiality as the pregnancy progresses. A threshold is reached once the pregnancy has produced a viable fetus. While this point was between 24 and 28 weeks at the time of the decision’s publication, no specific temporal mark is affirmed by the Court – instead, viability is to be employed as an evolving criterion that is at least partly dependent on changes in medical technology.

After viability, then, states may regulate abortion however they desire, including prohibiting it altogether.

The Court makes one exception on this point, declaring that any prohibition of abortion in the third trimester must allow for therapeutic abortions (those in which the preservation of the life or health of the mother requires the performance of an abortion).

In summary, Roe sets up a two-part test – (1) abortion may be regulated in the second trimester, but only with regard to protection of the life and health of the mother. (2) Elective, non-therapeutic abortion may be prohibited after viability in keeping with the interest of the state in the preservation of potential life.

  • Principal Question: How has Roe been implemented in light of the two-part test?
    • Subquestion: What are the additional constitutional issues raised by the Roe test?

Roe was a confusing case for a long time. Many people have confused the trimester test with the viability test, and this has led to all sorts of problems with implementation. Perhaps the most common misconception is that Roe only permits restriction of abortion after the 2nd trimester. In fact, viability is the relevant criterion in this context, not the trimester system. The trimester system only applies to those actions which the state takes in order to pursue its interest in the preservation of the life and health of the mother. The viability test is the only relevant test – according to Roe – when a state pursues its interest in the preservation of potential life. A legitimate and confusing question arises often, then, when we try to determine what the motivation of a state is in taking a particular action. You can imagine the kind of legal confusion this can lead to.

Several subquestions arise when we consider the issue of how a state may regulate abortion. For almost the last 30 years, these questions have been at the center of the disputes which affect the implementation of Roe. The most notable issues are as follows:

  1. May a state restrict the method of abortion in keeping with its interest to protect the life of the mother?
    1. Probably. There are several methods by which an abortion may be performed. The following definitions are given in the approximate order in which the methods they define would be used:

i. RU 486: “The morning after pill.” May be taken within five weeks of conception. Inhibits implantation of the fertilized ovum in the lining of the uterus.

ii. Suction/vacuum aspiration: Common in the first trimester. The contents of the uterus are sucked out by a small tube connected to a vacuum pump.

iii. Dilation and Evacuation (D&E): The fetus is usually first destroyed while inside the womb and then pulled out with the use of forceps or sucked out with the use of a vacuum pump. An “Intact D&E” would remove the fetus in an intact state (usually in order to perform pathological examinations of the fetus). Most D&E procedures are not intact and involve the use of curettage and forceps.

iv. Saline Infusion: A small amount of amniotic fluid is removed from the patient and replaced with a saline solution. This normally results in uterine contractions within 24 to 48 hours, thus expelling the fetus. This method may result in live births, depending on the solution used.

v. Dilution and Extraction (D&X): AKA “Partial Birth Abortion” and “Intrauterine Cranial Decompression.” The fetus is delivered feet-first up to the point of the skull. Once the skull reaches the birth canal, an incision is made in the back of the skull and its contents drained. This permits the collapse of the skull and a smoother extraction of the fetus from the body of the woman. The procedure may be medically indicated in cases of hydrocephalus (water in the brain, causing a severe expansion of the skull and potential damage to the mother, possibly including death).

vi. Hysterotomy: Similar to a caesarian section, but requiring a smaller abdominal incision. This amounts to major surgery and is typically employed only in dire circumstances.

  1. May a state restrict the use of a certain abortive method? Again, the answer is “probably.” A recent case (Stenberg v Carhart) struck down a Nebraska law prohibiting the use of D&X procedures. However, the case was struck down due to the vagueness of the law (it could have been used to justify a prohibition of other procedures as well). Justice O’Connor (now retired), who sided with the majority in striking down the law, wrote in a concurring opinion that a law which restricted itself to D&X abortions and which allowed for the use of such abortions where the health or life of the mother was at risk would be constitutional. This sets the stage for a major restriction of D&X abortions, which typically only number in the low thousands annually.
  2. Are states required to provide funds for the performance of abortion procedures?
    1. No. The Court has repeatedly upheld the right of a state (and the federal government) to refrain from funding abortion procedures. The Roe test does not require states to fund the exercise of a constitutional right, however fundamental that right may be. Some states, however, are under specific court orders from state courts to provide such funding. NY is not required by law to provide such funding, but has chosen to fund abortions for low-income women (with certain restrictions) through its Medicaid program.
    2. In the case of the federal government, a similar ruling is in effect. See Harris, 448 U.S. 297, which held that the Hyde Amendment, barring the use of federal funds for abortion, was constitutional.
  3. May a state require husbands to consent to abortion procedures by their wives? May a state require husbands be informed of abortion procedures by their wives?
    1. No and No. The requirement that husbands be informed does nothing to further the state’s legitimate interests. Informing a husband – or requiring consent from one – neither (a) furthers the state’s interest in protecting the health of the mother; nor (b) furthers the state’s interest in protecting potential human life after viability.
  4. May a state require parents to consent to abortion procedures requested by their children? May a state require parents be informed of abortion procedures by their children?
    1. Yes and Yes, but with several qualifications. In the case of minors, several holdings are relevant:

i. We must distinguish between one-parent and two-parent statutes. Some states have required that only one parent be informed or be required to consent. Other states have required that both parents be informed or be required to consent. The Court has different views for these distinct sets of statutes.

ii. In the case of two-parent laws, the Court has demanded that a “judicial bypass” option be made available to the minor. This means that a minor must have the opportunity to confidentially approach a court in an effort to secure the abortion. This is done in cases where notification of the parent(s) is not in the best interest of the minor. Depending on the state in question, the minor may have to show good cause for bypassing the parents. If cause is shown (or is unnecessary in that state) the judge must then make two determinations: (A) Whether the minor is mature (competent to decide); and (B) In the case of an immature (incompetent) minor, whether the abortion would be in her best interest. (Bellotti, 443 U.S 622)

iii. If the judge finds that a judicial bypass is in order and the parents do not need to be informed or required to consent, then the court must allow the abortion if the minor is mature. “Best interest” is only considered in cases where the minor is immature and the parents are not informed.

iv. One-parent laws appear to have more leniency from the Court when it comes to judicial bypass. It may be the case that no bypass option is required at all in the case of one-parent laws dealing strictly with immature minors whose best interests mandate that parents be involved. (Matheson, 450 U.S. 398).

  1. May states impose additional burdens on abortion recipients in order to protect its viability interest?
    1. Yes. Several such burdens are permissible. In Planned Parenthood of Kansas City v Ashcroft (462 U.S. 476) the Court upheld a Missouri law requiring the presence of two doctors during the abortion of a viable fetus. In Webster v Reproductive Health Services (492 U.S. 490), the Court held that a state may require physicians to perform tests on fetuses after 20 weeks of gestational age in order to determine whether it is viable.
    2. There appears to be no definitive word on the use of neonatal technology to reduce the amount of gestation required before a fetus is deemed viable.
  2. May a state require women to view state-crafted information about abortion in an attempt to persuade a woman to carry her pregnancy to term?
    1. Yes. In Planned Parenthood of Southeastern Pennsylvania v Casey (505 U.S. 833) the Court held that states may express a preference for birth over abortion, and may communicate that preference to a woman. In addition, Casey held that restrictions on pre-viability abortions are permissible so long as they do not constitute an “undue burden” on women. Since the decision in Casey affirmed the basic holdings of Roe, any pre-viability restrictions must be in keeping with the state’s legitimate interests as laid out in Roe.
    2. A summary of the Casey ruling is in order, as it was the last major ruling on abortion by the Court until its PBA case in 2001 (Carhart, see above). The joint decision in the case states:

i. “It must be stated at the outset and with clarity that Roe’s essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure. Second is a confirmation of the state’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger a woman’s life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the women and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each.”

    1. The Court intended Casey to be a “last word” on abortion for the time being. Since its holdings in post-Roe cases had been questioned by other jurists as confusing, the Court deemed it necessary to clarify those rulings in light of an affirmation of the holdings in Roe.

· Principal Question: What issues hasn’t the Court dealt with?

The question of what constitutes a therapeutic abortion is still very much up in the air. Potential issues here include: (1) Is depression a sufficient reason for calling an abortion therapeutic? If so, under what conditions? (2) Do attempts to commit suicide (or the threat thereof) constitute a medical condition in the context of therapeutic abortion? Consider the case of Ireland, which recently rejected a referendum which would have closed such a loophole in its anti-abortion law.

Questions of viability will certainly become more marked in coming years. The Court has held that a woman’s liberty extends only as far as viability, and that afterwards the State’s interest in preserving the potential life of the fetus becomes “compelling,” or “ripe.” If this is so, then the Court will likely be tested on this question in the near future, as neonatal technologies advance. In keeping with Casey, it might be permissible for a State to – for example – prohibit all abortions performed after 20 weeks of gestation.

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Filed under: Bioethics, Uncategorized

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