Law of Abortion in United States

This article is written by Vishwajeet Singh, Som Law College Prayagraj, UP, 4^th Semester (LL. B), intern under Legal Vidhiya

Abstract

Abortion has been a hotly contested political issue since the mid-1960s, when states began liberalizing their abortion laws. Recent Supreme Court rulings, such as Rust vs. Sullivan, the retirement of two liberal Supreme Court justices and the battle over Louisiana’s abortion legislation have created new fervor on both fronts of the battle. All health care providers who care for women need to be cognizant of the current abortion laws and the factors that influence the abortion decision. These factors include the different levels of health risk and financial implications posed by continued pregnancy or abortion. Historically, numerous court cases have influenced women’s health care provided. The Webster vs. Reproductive Health Services decision was the first case that directly challenged the Roe vs Wade decision. The Webster decision enables states to have grater authority in writing their own abortion laws. Individual state laws can vary greatly, so it vitally important for providers to know and understand the law of their state.

Keywords – Abortion, pregnancy, health risk, abortion law, financial implications, individual state law,

Introduction

Abortion is a divisive issue in American politics and culture wars, with different abortion laws in U.S States. Since 1976, the Republican Party has generally sought to restrict abortion access based on the stage of pregnancy or to criminalize abortion, whereas the Democratic Party has generally defended access to abortion and has made contraception easier to obtain. ^[[1]] The abortion-rights movement advocates for patient choice and bodily autonomy, while the anti-abortion movement maintains that the fetus has a right to live. Historically framed as a debate between the pro-choice and pro-life labels, most Americans agree with some positions of each side. ^[[2]] Support for abortion gradually increased in the U.S. beginning in the early 1970s, ^[[3]]and stabilized during the 2010s. ^[[4]][[5]]

Abortion

Abortion is the voluntary termination of a pregnancy. In 2022, nearly 50 years after Roe v. Wade changed the legal status of abortion by striking down a Texas law that criminalized abortion except as a means of saving the life of the pregnant person, the United States Supreme Court in Dobbs v. Jackson Women’s Health Organization held that abortion is not a fundamental right under the US Constitution, clearing the way for states to pass laws restricting abortional –basis review when challenged in courts.

The U.S. Supreme Court on Friday overturned Roe v. Wade, the 1973 decision that had provided a constitutional right to abortion. The ruling is expected to lead to abortion bans in roughly half the states, although the timing of those laws taking effect varies.

Some Republican-led states will ban or severely limit abortion immediately, while other restrictions will take effect later. At least one state, Texas, is waiting until after the Supreme Court issues its formal judgment in the case, which is separate form the opinion issued Friday and could take about a mouth.

Abortion In United State

Abortion has been a controversial issue in American culture, society, and political history. It has been a complex debate due to a conflict of rights, i.e., a fetal’s right to life versus the right of a woman to control her own body. People have different approaches on this subject, those who believe that it’s a decision of a woman whether to terminate her pregnancy or not, are identified as ‘pro-choice’, whereas those who debate that the ‘fetus’ has a right to live are identified as ‘pro-life’.

The two major political parties of the nation are also divided with different perspectives, the Republican Party has been fighting presidential elections with abortion as one of their key grounds for votes, ensuring people either criminalize abortion or restrict it based on the stages of pregnancy, while the Democratic Party has generally defended the access to abortion.

There are mainly 3 landmark cases that defined and shaped the constitutional protection for a woman’s right to abortion in the United States of America:

1. Roe v. Wade (1973)
2. Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)
3. Whole Woman’s Health v. Hellerstedt (2016)

Roe v. Wade was a landmark case of the U.S. Supreme Court in which the court ruled that a woman has a right to abortion prior to the viability of fetus. Further, the court held that criminalizing abortion violates a woman’s constitutional right of privacy, which is found to be inferred from liberty guaranteed under the Fourteenth Amendment (“nor shall any state deprive any person of life, liberty, or property, without due process of law”). Hence, abortion was decriminalized in the U.S.A. after this judgment.

How did Roe v. Wade change women’s rights?

Judgment – On 22nd January 1973, the Supreme Court by the vote of 7-2 (total bench of 9 judges) decided in favour of Jane Roe and decriminalized abortion throughout the United States.

• The court ruled that right to abortion prior to ‘fetal viability’ is a “fundamental right” protected by the Due Process Clause of the Fourteenth Amendment.
• The court held that abortion is a ‘privacy right’ of a woman.
• Court also recognized the severe impact the state would impose on a woman’s physical & mental health by denying abortion, including the financial burden in the upbringing of the unplanned child.
• The court rejected the plaintiff’s argument, i.e., an absolute right to abortion, and concluded that a state can regulate abortion if it is subject to maternal health, maintaining medical standards, or preserving potential life.
• The court further created a trimester framework based on pregnancy to regulate the state’s interest in abortion by defining the rights of each party:
• 1st trimester (conception to 12 weeks): during this time, a woman’s privacy interest is paramount; hence state cannot regulate abortion. It’s up to the decision of the woman herself to terminate her pregnancy. (absolute right to women was given here)
• 2nd trimester (12 to 24 weeks): a state may regulate abortion if the regulations are subject to the health of the pregnant person.
• 3rd trimester (24 to until the birth): at this time a ‘fetus’ becomes viable; hence the state’s interest in protecting the potential human life outweighs the right to privacy of a woman.

Further, the state may prohibit abortions unless an abortion is necessary to save the life or health of the pregnant person.

• The majority also concluded that the ‘strict scrutiny’ standard was relevant when reviewing restrictions on abortion since it is part of the fundamental right to privacy.

Planned Parenthood v. Casey case reaffirmed the basic principle laid down in Roe v. Wade, i.e., women have a fundamental right to obtain an abortion prior to fetal viability, protected by the Due Process Clause of the Fourteenth Amendment.

Judgment:

• The U.S. Supreme Court, in a plurality opinion, reaffirmed the “essential holding” of Roe v. Wade, which was the existence of a constitutional right to abortion by implying the doctrine of stare decisis.
• The trimester framework was replaced by ‘viability analysis of fetus’ in determining when the state’s interests could outweigh the interests of a pregnant woman and held that a state could prohibit abortion once a fetus becomes viable unless the health of the mother was at risk.
• The ‘strict scrutiny’ standard of review required by the Roe case was also replaced with the ‘undue burden’ standard to determine whether the state regulations impose any substantial obstacle in the path of a woman seeking an abortion before viability.
• The court upheld all the provisions of the Pennsylvania Abortion Control Act of 1982 except one, the requirement of spousal notification as it was found to be an undue burden and therefore unconstitutional.

Whole Woman’s Health v. Hellerstedt, this case questioned the validation and evaluation of the undue burden of two provisions: ‘admitting-privileges requirement’ and ‘surgical-center requirement’ of House Bill 2 (“H.B. 2”) enacted by the Texas Legislature back in 2013.

What significance did these cases bring to women’s right to abortion?

Until the early 1900s, abortion was illegal in the U.S.A with exceptions among few states that allowed abortion only to protect a woman’s life. In 1967, Colorado became the first state to decriminalize abortion in cases of rape, incest, or in which pregnancy would lead to permanent physical disability of woman. Later on, California, Oregon and North Carolina also passed similar laws. In 1970, New York legalized abortion up to 24th week of pregnancy and in the same year, Hawaii became the first state to completely legalize abortions.

By the end of 1972, some states allowed abortion only in the case of rape or incest, while others in cases when a patient’s life was in danger. Prior to Roe case, abortion was not considered a personal right and women didn’t have control over their unwanted pregnancies as per their wishes.

But after the Roe v. Wade (1973) case, the right to abortion became a constitutional right and was provided federal protection. This landmark case didn’t completely legalized abortion in the nation, in fact it provided women an absolute right to abortion only in the first trimester after which states could interfere with reasonable regulations. This way it created a fine balance between both women’s rights and a state’s interests.

The case of Planned Parenthood v. Casey (1992) reaffirmed the right to abortion as a constitutional right and modified the trimester framework with a fetal viability test to evaluate the legality of abortion. The undue burden standard was also established to determine which regulations by the states could be unconstitutional. Whole Woman’s Health v. Hellerstedt (2016) case concluded that states cannot place restrictions on abortion services that create an undue burden for women seeking an abortion.

Why is the abortion in the news again?

On 24th June 2022, the U.S. Supreme Court ruled out another landmark judgment in Dobbs v Jackson Women’s Health Organization case that challenged Mississippi’s ban on abortion after 15 weeks of pregnancy. This case struck down the constitutional right to abortion given to women until their first 24 weeks of pregnancy (prior to viability of fetus), abandoning almost 50 years of precedent of Roe v. Wade case.

How has Roe v. Wade been overturned?

Facts of the case

In 2018, the Mississippi Legislature passed the ‘Gestational Age Act’, which prohibited abortion after the first 15 weeks of pregnancy, well before fetal viability. This act included exceptions for any medical emergency or “severe fetal abnormality” but none for cases of rape or incest.

The State of Mississippi argued that the court should overturn Roe and Casey because they are interpreting the constitution as it has no explicit mention of the right to abortion. Counter to this, Jackson Women’s Health Organization, the only licensed abortion facility in Abortion is a highly emotional subject and one that excites deeply held opinions. However, equitable access to safe and legal abortion services is first and foremost a human right. In the United States the legality of abortion co-exists with cumbersome regulations, thinly veiled political opposition to a woman’s right to make independent decisions regarding pregnancy and abortion, and a lack of federal and state funding for the provision of abortion services for poor women that seriously hampers women’s ability to exercise this right. Until access to safe abortion is guaranteed, the human rights of women and girls across the United States will not be fully secure. Mississippi, challenged the constitutionality of the act arguing that it is a complete ban on pre-viability abortion.

Judgment

The U.S. Court with a 6-3 vote:

• Upheld the Mississippi’s ban by stating that both Roe and Casey were “egregiously wrong” from the start.
• Held that the right to abortion is not guaranteed by the constitution as “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision”. Thus, previous landmark decisions in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) were overruled, ending federal protection for abortion.
• Held that individual states will have the sole authority to regulate access to abortion services.

This case marks the first time the Supreme Court ruled on the constitutionality of ‘pre-viability abortion’ ban since the Roe v. Wade decision in 1973.

Aftermath of the Supreme Court’s decision

The U.S. Supreme Court has removed the federal abortion protections upon which women of the nation have relied for nearly half a century, therefore ending its precedent which means individual states will now have the authority to regulate abortion. This decision is being considered a “devastating setback” as it has brought the status of women’s right to abortion many decades back in time.

The judgment has overturned the access to abortion which could be performed at any time before the viability of fetus, i.e., up to 24 weeks of pregnancy because after that period a fetus can live outside the womb.

President Joe Biden described the court’s decision as “realization of an extreme ideology and a tragic error by the Supreme Court, in my view”.

The abortion ban has led to chaos across the country as some people are praising the decision while others are protesting against the same. Most of the states led by Republicans are looking forward either to completely banning abortion or strictly restricting it, while Democrat-led states are in support of abortion and have a liberal take on the termination of pregnancy.

Conclusion

Abortion is a highly emotional subject and one that excites deeply held opinions. However, equitable access to safe and legal abortion services is first and foremost a human right. In the United States the legality of abortion co-exists with cumbersome regulations, thinly veiled political opposition to a woman’s right to make independent decisions regarding pregnancy and abortion, and a lack of federal and state funding for the provision of abortion services for poor women that seriously hampers women’s ability to exercise this right. Until access to safe abortion is guaranteed, the human rights of women and girls across the United States will not be fully secure.

References

• https://en.wikipedia.org/wiki/Abortion visited on 3/05/2023
• https://www.law.cornell.edu/wex/abortion visited on 3/05/2023
• https://legalserviceindia.com/legal/article-8954-abortion-in-america-an-overview.html visited on 03/05/2023
• https://onlinelibrary.wiley.com/doi/10.1111/pops.12803 visited on 04/05/2023
• https://indianexpress.com/article/world/where-in-us-is-abortion-illegal-now-7993333/ visited on 05/05/2023
• https://www.hrw.org/legacy/women/abortion/us.html visited on 05/05/2023
• https://pubmed.ncbi.nlm.nih.gov/1798604/ visited on 05/05/2023
• https://www.npr.org/sections/health-shots/2023/01/17/1149509246/the-u-s-faces-unprecedented-uncertainty-regarding-abortion-law-legal-scholar-say visited on 05/05/2023

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[1]  ^ Wilson, Joshua C. (2020). Striving to Rollback or Protect Roe: State Legislation and the Trump-Era Politics of Abortion”. Publius: The Journal of Federalism.50(3): 370-397.

[2] ^ Saad, Lydia (August 8,2011).” Plenty of Common Ground Found in Abortion Debate”. Gallup.com.

[3] ^ Osborne, Danny; Huang, Yanshu; overall, Nickola C.; Sutton, Robbie M.; Petterson, Aino; Douglas, Karen M, Davies, Paul G.; Sibley, Chris G (2022).” Abortion Attitudes: An Overview of Demographic and Ideological Differences.

[4] ^Saad, Lydia (May14,2010).” The New Normal on Abortion: Americans More” Pro-LIFE””. Gallup.

[5] ^Jeffrey Jones (June11,2018).” U.S. Abortion Attitudes Remain Closely Divided”. Gallup.