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Laws Against Abortion

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					          Major U.S. laws concerning abortion
Notes:
       The following is general information only, and should not be interpreted as legal
        advice. Do not make any decisions on the basis of this essay. If you have a personal
        problem in this area, you may want to consult a legal professional.
       A similar essay covering Canadian laws is available elsewhere.


United States Supreme Court ruling: Roe v. Wade (1973):
Prior to the U.S. Supreme Court's famous Roe v. Wade decision, abortions were permitted
in certain states but banned in others. The court ruled in 1973 that, anywhere in the U.S.:      1

       a woman and her doctor may freely decide to terminate a pregnancy during the first
        trimester,

       state governments can restrict abortion access after the first trimester with laws
        intended to protect the woman's health.

       abortions after fetal viability must be available if the woman's health or life are at
        risk; state governments can prohibit other abortions.




The Roe v. Wade case involved a pregnant single woman ("Roe") who brought a class action
challenging the constitutionality of the Texas criminal abortion laws, which prohibited any
abortion except to save the woman's life. A married couple (the "Does") separately attacked
the laws on the basis that an accidental pregnancy could find them unprepared for
childbearing and could pose a hazard to the wife's health. The Does' appeal was rejected as
being too speculative.

The Supreme court found that:

       "State criminal abortion laws, like those involved here..... violate the Due
       Process Clause of the Fourteenth Amendment, which protects against state
       action the right to privacy..."

       "For the stage prior to approximately the end of the first trimester, the abortion
       decision and its effectuation must be left to the medical judgment of the
       pregnant woman's attending physician."

       "For the stage subsequent to approximately the end of the first trimester, the
       State, in promoting its interest in the health of the mother, may, if it chooses,
       regulate the abortion procedure in ways that are reasonably related to maternal
     health."

     "For the stage subsequent to viability the State, in promoting its interest in the
     potentiality of human life, may, if it chooses, regulate, and even proscribe,
     abortion except where necessary, in appropriate medical judgment, for the
     preservation of the life or health of the mother."

Subsequent court decisions defined the term "preservation of health" very broadly, to
include such situations as a woman being suicidaly depressed about being pregnant.

Mr. Justice Stewart issued a concurring statement which said in part:

     "Clearly, therefore, the Court today is correct in holding that the right asserted
     by Jane Roe is embraced within the personal liberty protected by the Due
     Process Clause of the Fourteenth Amendment. It is evident that the Texas
     abortion statute infringes that right directly. Indeed, it is difficult to imagine a
     more complete abridgment of a constitutional freedom than that worked by the
     inflexible criminal statute now in force in Texas."

Mr. Justice Rhenquist issued a dissenting opinion. He noted that there was no proof that
Roe was in her first trimester when she filed her original suite. He said:

     "While a party may vindicate his own constitutional rights, he may not seek
     vindication for the rights of others."

Noting that an abortion requires the services of a physician, Rhenquist felt that such an
operation is:

     "not 'private' in the ordinary usage of that word. Nor is the 'privacy' that the
     Court finds here even a distant relative of the freedom from searches and
     seizures protected by the Fourth Amendment to the Constitution."

He felt that the court was not justified in declaring the entire Texas statute to be
unconstitutional. Rather, it should have been declared unconstitutional as applied "to a
particular plaintiff, but not unconstitutional as a whole."

"Roe" never did obtain an abortion.


Additional U.S. laws restricting abortions:
At least 16 states still have pre-1973 anti-abortion laws on the books even though they are
clearly unconstitutional and nullified under Roe v. Wade. However some of them would be
immediately enforceable if the U.S. Supreme Court overturned Roe v. Wade in the future.
Others would remain unenforceable until judicial injunctions were lifted.

There have been many attempts since 1973 to reduce free access to abortions. Laws have
been passed by some states and at the federal level to:
      Require counseling and/or a cooling-off period before an abortion is performed.

       Require an underage woman to notify, or obtain permission, from a parent, guardian
       or court.

      End government financial support for women in poverty who seek abortions.

      Ban abortions after viability of the fetus unless required to preserve the woman's life
       or health.

      Ban all abortions.

      Ban a D&X abortion procedure, except when performed on a dead fetus or to save
       the life of the woman.

The three most important decisions have been:


Webster: In Webster v. Reproductive Health Services, 492 U.S. 490 (1989), the Supreme
Court declared in a 5:4 decision that a Missouri law was constitutional. It stated that:
      Human life began at conception,
      That Missouri state property could not be used to conduct abortions, and
      A fetal viability assessment could be required before late term abortions are
       performed.


 Akron Center: In Ohio v Akron Ctr. for Reproductive Health, 497 U.S. 502 (1990), the
Court ruled 6:3 that a state could require a parent or guardian to be notified before an
under-aged woman received an abortion. However, a provision must be in place for a judge
to by-pass this requirement if he/she regards it to be in the best interest of the woman.
Casey: In Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992),
the court ruled 5:4 that Pennsylvania could require:
      A 24 hour waiting period before an abortion is performed.
      That the woman give her informed consent to the abortion.
      That parent or guardian be notified before an abortion on a woman who has not
       reached her 18th birthday.
The court also struck down as unconstitutional the requirement of a Pennsylvania law which
required prior spousal notification.
Independently of the state and federal laws, physicians who perform abortions are
restricted by the regulations of their state's Medical Association. They typically do not
permit abortions after 20 or 21 week gestation unless the woman's health or life are
seriously at risk.
A current survey of abortion laws is available on-line. This includes general abortion laws,
post-viability abortions, partial-birth abortions, chemical abortions, viability testing,
spousal consent, parental consent, informed consent, waiting periods, clinic harassment,
licensing, "gag rules," public funding, etc. 2


Related essay:
      Abortion laws regarding parental consent, parental notification and interstate travel

References:
   1. Roe v. Wade, 410 U.S. 113 (1973) Roe et al. vs. Wade, District Attorney of Dallas
      County, Texas. See the full text from a Cornell archive
   2. "Reproductive Rights," American Civil Liberties Union, at: http://www.aclu.org/
   3. "Constitutional Law," at: http://members.aol.com/
   4. The text of the ruling for Planned Parenthood v. Casey is available at:
      http://members.aol.com/
   5. George Jackson has prepared a report on "Researching State Abortion Laws: A
      Pathfinder for
      Advocates, Policymakers and Attorneys," 2004-MAR-16, at: www.tc.umn.edu/

				
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