Researching State Abortion Laws:
A. Overview of General State Abortion Law Issues While “[i]t is clear that the Supreme Court would find unconstitutional any statute criminalizing abortion, with or without exceptions for rape or incest,” 1 it is equally clear that the Court is willing to accept strict state requirements and regulations governing abortions,2 so long as they “are not undue burdens, separately or collective, upon a woman‟s reproductive liberty.”3 In fact, the Court has upheld several restrictive state laws, including ones “mandating that abortions be conducted in hospitals or clinics; requiring 24-hour waiting periods between physician consultation and the abortion procedure; and requiring parental (or court) consent for minors wishing to abort a non-viable fetus,” because the Court did not find them to be an undue burden for women making the abortion decision.4 However, a few state abortion laws have failed the undue burden test, such as a requirement for spousal notification5 and a ban on so-called “partial birth abortion” procedures.6 Perhaps because the exact parameters of the undue burden standard are not always clear, state legislators continue to test the boundaries with new legislation. In the 2002 legislative session, for example, all state legislatures combined “considered 66 waiting period and biased counseling measures and 58 measures restricting minors‟
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Levin, supra note Error! Bookmark not defined., at 10A-6. See infra note 4 and accompanying text. See generally NARAL PRO-CHOICE AMERICA FOUNDATION, WHO DECIDES? A STATE-BY-STATE REVIEW OF ABORTION AND REPRODUCTIVE RIGHTS (2003) (summarizing judicial decisions and legislative trends concerning abortion and reproductive rights); Levin, supra note Error! Bookmark not defined., at 10A-1 to 10A-32 (discussing generally the status of reproductive rights and specific judicial causes of action). 3 Levin, supra note Error! Bookmark not defined., at 10A-7. 4 Weinstein, supra note Error! Bookmark not defined., at 463 (examining “permissible regulations cited by Casey”). 5 Casey, 505 U.S. at 895 (Pennsylvania‟s spousal notification requirement “will operate as a substantial obstacle to a woman‟s choice to undergo an abortion. It is an undue burden, and therefore invalid.”) 6 Stenberg v. Carhart, 530 U.S. 914, 930 (Nebraska‟s law criminalizing “the performance of a „partial birth abortion,‟ violates the Federal Constitution” because “it „imposes an undue burden on a woman‟s ability‟ to choose a D&E abortion, thereby unduly burdening the right to choose abortion itself.”) (citations omitted). 1
access to abortion.”7 Of the laws that were enacted, some are surely bound for judicial review under the right of privacy and undue burden standards, such as the “Alabama law requiring women to undergo a mandatory ultrasound before terminating a pregnancy” as well as requiring “extensive state-mandated lectures before an abortion and a waiting period.”8 Other new state laws ripe for constitutional examination include a Florida statute requiring parental consent for school-sponsored contraceptive services or referrals, an Arizona ban against surgical abortions performed by physicians‟ assistants, and a Nebraska law criminalizing the murder or manslaughter of “an unborn child.”9 These new state laws may set raise or lower the standards of permissible regulation and should not be ignored merely because they were enacted by another state. This pathfinder is intended to illustrate the research of state abortion laws so advocates, policymakers, and attorneys can determine the current trends in state legislative proposals, as well as access and understand the results of judicial review of challenged laws.
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NARAL, supra note 2, at viii. Id., at ix. Id. 2