2011-10-10 11:36:53

Prior to the middle of the nineteenth century, abortion was an issue to which men, and therefore lawmakers, judges, and politicians, paid little or no attention. With the Supreme Court’s 1973 decision of Roe v. Wade, 410 U.S. 114 (1973), abortion became perhaps the most prominent legal and political issue of the late twentieth century and continues to be so in the twenty-first century.

In Roe v. Wade, the Supreme Court struck down a Texas law that prohibited all abortions except those strictly necessary to save the life of the mother. The statute in question (and similar laws in effect in a majority of states at that time) was not in fact part of the Anglo-American common law, but was of relatively recent origin. At the time at which the U.S. Constitution was ratified, there were no statutes against abortion in the United States or in England, and the English common law received by the new states recognized a crime of abortion only after ‘‘quickening’’—that is, only after the movements of a fetus can be felt (generally between the fourteenth and sixteenth weeks of pregnancy). Since colonial times, early abortion was not only legal but also was widely practiced in this country, increasingly so in the early nineteenth century. Abortion services were commonly advertised in newspapers, and women’s folk medicine recognized a number of traditional herbal abortifacients that were widely known. It was not until after the Civil War that criminal statutes proscribing abortion were widely adopted by the states.

Two developments in the mid-1800s may have influenced state legislatures to enact criminal sanctions against abortion. The first was the founding in 1847 of the American Medical Association (AMA), which lobbied lawmakers to enact regulations limiting the practice of medicine to professionally licensed physicians and prohibiting ‘‘irregulars,’’ such as midwives, from providing healthcare services. In 1857, the AMA created a Committee on Ethics that launched a campaign to make all abortions illegal.

The second issue influencing the early development of abortion policy was the ‘‘first wave’’ feminist movement, which led many women to question their traditional roles in the family and to seek many of the social, economic, and legal privileges enjoyed by men. Abortion was seen as inimical to the proper role of women as wives and mothers. Concern for ‘‘protecting’’ women’s traditional roles was expressed by the Supreme Court in its 1873 decision of Bradwell v. Illinois, 83 U.S., 16 Wall., 130 (1873), in which the Court denied women the right to practice law. The earliest state statutes generally prohibited only those abortions performed after ‘‘quickening.’’ Not until the 1920s, during a second wave of anti-abortion legislation, did most states adopt laws proscribing abortion at all stages of pregnancy.

Abortion Laws remained largely unchanged until the 1960s, when a number of events led to a reexamination of abortion policy and practice. One such event was an outbreak of German measles, which, along with the widespread use of thalidomide, resulted in an epidemic of children born with serious birth defects. Many physicians feared the criminal sanctions they risked if they performed abortions on women at risk of delivering babies with severe birth defects. Another turning point in the evolution of abortion policy was the introduction in 1960 of the first Birth Control pill, which launched the ‘‘sexual revolution’’ and the ‘‘second-wave’’ feminist movement. More young women began pursuing higher education, entering into traditionally male professions, and postponing motherhood or eschewing it altogether. While this new form of contraception gave women additional and more reliable control over their fertility, the option of abortion was viewed as necessary to provide complete protection from unwanted pregnancies.

As a result of these developments, many groups began to push for the liberalization of Abortion Laws. In 1962, the American Law Institute (ALI) introduced a Model Penal Code that recommended legalizing abortion under certain circumstances, such as when pregnancy resulted from rape or incest or when the fetus was likely to suffer from serious defects. By the time of the Roe decision, fourteen states had adopted some or all of the ALI’s recommendations, and four states, Alaska, Hawaii, New York, and Washington, had repealed their Abortion Laws altogether. While some groups sought legislative reform to liberalize or repeal the old Criminal Laws, other groups pursued judicial recognition of a constitutionally protected civil right to reproductive autonomy that would include access to Birth Control and to abortion.

The Supreme Court’s first foray into the issue of reproductive rights was in the case of Griswold v. Connecticut, 381 U.S. 479 (1965), in which the Court recognized a right of privacy within the ‘‘penumbra’’ of the Constitution’s enumerated rights that protected the freedom of married persons to obtain contraceptives. This right of privacy was extended to unmarried persons with the Court’s decision in Eisenstadt v. Baird, 405 U.S. 438 (1972). Justice Brennan, writing for the majority, said: ‘‘If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision of whether to bear or beget a child.’’

These two cases set the stage for the Supreme Court’s landmark decision of Roe v. Wade. Justice Harry Blackmun wrote the opinion for the sevenjustice majority of the Court. In it he said that ‘‘the right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or . . . in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.’’ Without resolving the question of the legal status of an unborn fetus, the Court held that the states had compelling interests in the health of the mother and the ‘‘potential human life’’ of the unborn. Each of these interests justifies state regulation at different stages of pregnancy. During the first trimester of pregnancy, when the Court found that abortion was medically safer than childbirth, a state has no legitimate interest in interfering with the abortion decision. After the third month of pregnancy, when the risks of abortion to the mother’s health increase, the state ‘‘may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.’’ In the third trimester, when the fetus may be viable outside the womb, the state may ‘‘regulate, or even proscribe, abortion except where it is necessary . . . for the preservation of the life or health of the mother.’’

While the Roe decision was enthusiastically embraced by most abortion rights advocates, it also provoked the formation of a ‘‘right-to-life’’ movement that has fought relentlessly since the day the decision was handed down to limit its application or to overturn it outright. Even those who support abortion rights have criticized the Roe decision on grounds ranging from its lack of textural authority to the unworkability of its trimester framework. The ‘‘prolife’’ movement initially focused it efforts on the election of lawmakers who, it was hoped, would appoint judges who would limit the application of Roe, support laws limiting access to abortions, and even amend the Constitution to define a right to life for the unborn.

Throughout the 1970s and early 1980s, the Court continued to refine the contours of the right to abortion, but held to the position that a woman’s right to terminate a pregnancy prior to fetal viability was a fundamental one and that, therefore, any state’s attempt to regulate abortion was subject to ‘‘strict scrutiny.’’ Between 1973 and 1986, the Court, using this heightened standard of judicial review, struck down state laws that required spousal consent to an abortion (Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 1976), that required a twentyfour- hour waiting period before an abortion (Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 1983), that mandated specific information about fetal development be provided before consent would be considered ‘‘informed’’ (Akron; Thornburgh v. American College of Obstetricians and Gynecologists, Pennsylvania Section, 476 U.S. 747, 1986), that limited the methods that could be used to perform abortions (Danforth and Thornburgh), and that required a minor to notify a parent or to obtain parental consent to an abortion without providing adequate judicial bypass protections (Bellotti v. Baird, 443 U.S. 622, 1979; Akron; Thornburgh).

While the Court struck down most legislative attempts to impede or discourage abortions, it did uphold laws that reflected the government’s refusal to support a woman’s choice to abort. The ‘‘Hyde Amendment’’ enacted by Congress in 1976 to prohibit the use of Medicaid funds for abortions, along with similar state statutes, has been upheld by the Court. Many argued that these laws violated the equal protection clause by making safe abortions unavailable to poor women. But, in Harris v. McRae, 448 U.S. 297 (1980), that argument was rejected by the Court, which held that ‘‘although government may not place obstacles in the path of a woman’s exercise of her freedom of choice, it need not remove those not of its own creation. Indigency falls in the latter category.’’ Since the Harris decision, forty-seven states now prohibit the use of public funds for abortion except when the life of the mother is at risk.

The anti-abortion movement gained momentum in 1980 with the election of President Ronald Reagan, who made anti-abortion policies a top priority and vowed that he would appoint justices to the Supreme Court who would vote to overrule Roe. It was during this period that the abortion issue became highly politicized as the religious Right became more closely identified with the Republican administration. The Reagan years saw the passage of a number of federal laws that sought to limit access to abortion. Congress passed laws restricting access to abortions for government workers, Medicaid patients, and patients in public hospitals. ‘‘Gag rules’’ were imposed that prevented any facility receiving federal funds from giving women information about abortion. Reagan’s administration also withheld foreign aid to countries that provided government access to abortion. But the principle focus of the Reagan and Bush administrations’ anti-abortion efforts was on the Supreme Court, where views on abortion became a litmus test for judicial appointments.

When Chief Justice Warren Burger retired from the Court in 1986, Reagan appointed William Rehnquist, who had dissented in Roe, to fill the position. Other members of the Roe majority were replaced by the more conservative Justices O’Connor, Scalia, and Kennedy, each of whom had shown some degree of opposition to the right to abortion. When the case of Webster v. Reproductive Health Services, 492 U.S. 490 (1989), came before the Court in 1989, many believed that the Court was then poised to overturn Roe v. Wade.

The Court in Webster was asked to review a Missouri statute that declared that ‘‘the life of each human being begins at conception’’ and that ‘‘unborn children have protectable interest in life, health, and well being.’’ The statute also prohibited the use of public employees or facilities for nontherapeutic abortions and required fetal viability testing for any pregnancy believed to be at twenty or more weeks. A five-justice majority upheld the statute, sustaining many restrictions on abortion that it had previously invalidated in Thornburgh and Akron. Without directly overruling the Roe decision, the Court effectively ceded control over abortion rights to states’ regulation.

In the years following the Webster decision, states enacted a wide variety of laws limiting the right to abortion. One of these laws, the Pennsylvania Abortion Control Act, was brought before the Court in 1992, giving it the opportunity to clarity its Webster holding. In Planned Parenthood v. Casey, 505 U.S. 833 (1992), a plurality of the Court reaffirmed the core principles of Roe but abandoned the notion that abortion was a ‘‘fundamental right’’ that required strict scrutiny. Instead, it found that abortion was simply a ‘‘liberty claim’’ subject to a more deferential ‘‘undue burden’’ test. The Pennsylvania law, which imposed a mandatory twenty-four-hour waiting period, informed consent, and parental consent requirements, was found not to impose an undue burden on women’s choice of abortion.

The Casey decision was disappointing to the antiabortion movement, which had hoped that the more conservative Rehnquist Court would overturn Roe. Anti-abortion strategies shifted from efforts to make abortion illegal to efforts to make access to abortion inconvenient or impossible. Abortion providers suffered a plague of violent and intimidating acts, ranging from protesters attempting to block entrances to abortion clinics to the bombing, arson, and vandalism of clinics, and the murder of two physicians who performed abortions. Some states issued injunctions against anti-abortion protesters, prohibiting them from demonstrating within ‘‘buffer zones’’ around clinic entrances. Many of these laws were challenged as violating the First Amendment rights of the protesters. In 1997, in the case of Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357 (1997), the Court found that the creation of ‘‘fixed’’ buffer zones was constitutionally valid as necessary to protect women’s freedom to seek pregnancy-related services and to protect the public’s safety. While the extent of the violence has been reduced by these laws, the anti-abortion movement’s intimidating tactics have, nevertheless, succeeded in eliminating abortion services entirely from as many as 87 percent of all counties in the United States.

Anti-abortion legislation since Casey has focused primarily on outlawing certain methods of abortion, particularly dilation and evacuation (D&E) and dilation and extraction (D&X), also referred to as ‘‘partial birth’’ abortion. Most of these laws have been struck down because they were not limited to postviability abortions or because they failed to provide exceptions for situations when the procedure is necessary to protect the woman’s life or health (Stenberg v. Carhart, 530 U.S. 914, 2000). Congress continues its efforts to craft legislation outlawing ‘‘partial-birth’’ abortions that will pass constitutional review.

The 2000 election of President George W. Bush, who is firmly dedicated to outlawing abortion entirely, puts the current status of abortion law in this country at serious risk. The resignation of Justice Sandra Day O’Connor, who was often the critical swing vote on decisions affirming the abortion right, gives President Bush the opportunity to appoint a new justice who will likely provide the fifth vote needed to overrule Roe v. Wade. The confirmation of O’Connor’s successor was complicated by the death of Chief Justice William Rehnquist. This gave President Bush two slots to fill on the court. Abortion rights advocates opposed the confirmation of Samuel Alito, but were unsuccessful. Supporters of abortion rights were leery of John Roberts, but did not fight his confirmation as Chief Justice. At this point it is unclear whether these two justices will provide the neccessary votes to overturn Roe, or simply vote to uphold state legislation that limits rights of choice.


References and Further Reading

  • Ely, John Hart. Democracy and Distrust. 1980
  • Gold, Rebecca Benson. Abortion and Women’s Health: A Turning Point for America? 1990
  • Mohr, James. Abortion in America. 1978
  • Rubin, Eva. Abortion, Politics, and the Courts. 1987
  • Tribe, Laurence H. Abortion: The Clash of Absolutes. 1990
  • Wishner, Jane B., ed. Abortion and the States: Political Change and Future Regulation. 1993

Cases and Statutes Cited

  • Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983) 
  • Bellotti v. Baird, 443 U.S. 622 (1979) 
  • Bradwell v. Illinois, 83 U.S. (16 Wall.) 130 (1873) 
  • Eisenstadt v. Baird, 405 U.S. 438 (1972) 
  • Griswold v. Connecticut, 381 U.S. 479 (1965) 
  • Harris v. McRae, 448 U.S. 297 (1980)
  • National Organization for Women v. Scheidler, 510 v. 249 (1994) 
  • National Organization for Women v. Scheidler, 537 U.S. 393 (2003) 
  • Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976) 
  • Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) 
  • Roe v. Wade, 410 U.S. 114 (1973) Rust v. Sullivan, 500 U.S. 173 (1991) 
  • Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357 (1997) 
  • Stenberg v. Carhart, 530 U.S. 914 (2000) 
  • Thornburgh v. American College of Obstetricians and Gynecologists, Pennsylvania Section, 476 U.S. 747 (1986) (portions overruled by Casey) 
  • Webster v. Reproductive Health Services, 492 U.S. 490 (1989)