Where We Are And How We Got There On The Abortion Issue
The 14th amendment encompasses a triad of privileges or immunities, equal protection, and/or due process. Basically, state laws can’t deny to any citizen within its jurisdiction any privilege or immunity. Once a law is passed, arbitrary enforcement of it against any person within the state’s jurisdiction violates equal protection. Furthermore, every person accused of violating a law gets full procedural due process before the courts of the state.
The argument for the right to privacy grew out of Griswold v. Connecticut (1965) where a Connecticut anti-contraception law was unconstitutional on the ground that it intruded on the right to marital privacy. It established “zones” of personal privacy as fundamental to the concept of liberty under “the protected penumbra of specific guarantees of the Bill of Rights.”
In 1967, Colorado became the first state to greatly broaden the circumstances under which a woman could legally receive an abortion. By 1970, 11 additional states had made similar changes to their abortion laws and four other states – New York, Washington, Hawaii and Alaska – had completely decriminalized abortion during the early stages of pregnancy.
Eisenstadt v. Baird (1972) expanded the privacy right established in Griswold to unmarried couples seeking contraceptives. The right of privacy is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters affecting a person and their decision to reproduce.
The Abortion Issue
Roe v. Wade (1972) and Doe v. Bolton (1973) affirmed lower courts ruling that denying a woman the right to decide whether to carry a pregnancy to term violates basic privacy and liberty interests contained in the Constitution. No, the Constitution doesn’t explicitly mention any right to privacy, but “a guarantee of certain areas or zones of privacy” from Griswold is also grounded in several amendments within the Bill of Rights and in the 14th Amendment’s guarantee of liberty. Taken together, zones of privacy in areas of society such as marriage, contraception, family relationships and child-rearing were created.
Abortion was determined to be a fundamental right that only a compelling state interest could limit. The state had an “important and legitimate interest” in protecting the health of the mother and even “the potentiality of human life” inside her, but the question of when the state’s legitimate concern for maternal and fetal protection rise to the level of compelling interest still remained. To answer it, Roe created a three-tiered legal framework, based on the nine-month period of pregnancy, giving the state greater interest and regulatory latitude in each successive tier
The state could only impose basic health safeguards, such as requiring that the procedure be performed by a qualified health professional, and could in no way limit access to abortion. This was for the entirety of the first trimester.
From the end of the first trimester to the point of fetal viability, defined as the point at which a fetus can survive outside the womb, either through natural or artificial means, which typically takes place between about 24 and 28 weeks into a pregnancy, the state had an interest in protecting maternal health and could regulate abortion only to protect the health of the mother. Regulations had to be directed toward ensuring maternal health and couldn’t be aimed at protecting a fetus or limiting access to abortion services. Thus, a state law requiring a doctor to describe to a woman seeking an abortion the risks associated with the procedure before receiving her informed consent would be constitutional as long as the requirement aimed to protect maternal health and was not created to dissuade a woman from terminating her pregnancy.
The state has an interest in protecting “potential life” and can even proscribe abortion, as long as the procedure is still allowed in cases in which the life or health of the mother is at risk in the period after the point of fetal viability. Doe reinforced Roe stating regulations that could create procedural obstacles to abortion violate a woman’s right to terminate her pregnancy.
In the 16 years following Roe, laws requiring informed consent, parental consent, spousal consent and waiting periods for women seeking abortions were generally struck down by the Court as were most laws regulating abortion. Even the few that were upheld affirmed Roe and its three-tiered framework.
The First Crack in Roe
Webster v. Reproductive Health Services (1989) ruled a statute that barred public facilities from being used to conduct abortions and prohibiting public health workers from performing abortions unless the life of the mother was at risk constitutional. Life could also be defined as beginning at conception and physicians could be directed to perform fetal viability tests on women who were 20 or more weeks pregnant and seeking abortions.
Declaring that life begins at conception does not contradict Roe if the declaration is contained in the statute’s preamble for it has no real impact on access to abortion. Prohibiting the use of government workers or facilities to perform abortions is acceptable because the right to an abortion does not include the right to government assistance in obtaining one. A requirement of viability testing at 20 weeks is not unconstitutional.
One opinion, joined by Justice Anthony Kennedy, argued for dispensing with the second tier of Roe allowing only laws aimed at protecting the mother’s health for the state has an interest in protecting potential life before viability, making the 20-week requirement valid even if fetal viability normally occurs after 20 weeks. In a concurring opinion, Justice Antonin Scalia argued that Roe should be overturned.
Webster revealed a new majority on the court with a greater willingness to uphold state restrictions on abortion. It ultimately set the stage for changes that would come a mere three years later.
Significant Changes in Roe’s Tiers
Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) ruled wide-ranging abortion laws including an informed-consent requirement as well as a 24-hour waiting period for women seeking abortions were constitutional as were statutes requiring minors to obtain the consent of at least one parent or guardian. A wife having to inform her husband of her plans to terminate her pregnancy was ruled unconstitutional even though, in the cases of both requirements, various waivers were available for extenuating circumstances.
Justice Kennedy with the other two centrist judges issued and authored a joint opinion joined by the court’s liberal wing in affirming that the state may not prohibit pre-viability abortions. The court’s more conservative wing, including Antonin Scalia and Clarence Thomas, upheld all of the Pennsylvania statute’s requirements except spousal notification.
The maintenance of the constitutional status quo was for reasons beyond legal precedent. Roe had created certain expectations of permanency; however, states can regulate abortion during the entire period before fetal viability, and they can do so for reasons other than to protect the health of the mother. Roe‘s prohibition on the regulation of abortion during the first trimester, and its limitation of regulation between the end of the first trimester and the point of fetal viability was dismantled. A state’s interest in and regulation of potential life can now extend throughout a woman’s pregnancy.
Strict scrutiny, the most rigorous legal standard for determining whether a law passes constitutional muster, was invoked under Roe. Under Case, the new and less rigorous “undue burden” standard where regulating abortion before the point of fetal viability would be deemed unconstitutional only if it imposed an undue burden on a woman’s right to terminate her pregnancy was introduced. However, by affirming Roe, Casey made it legal precedent and afforded it greater protection from future challenges.
Partial Birth Abortion
Stenberg v. Carhart (2000) focused on “partial-birth abortion” or a procedure known in the medical community as “dilation and extraction” (D&X), which involves terminating a pregnancy by partially extracting a fetus from a uterus, then collapsing its skull and removing its brain. This procedure is usually performed late in the second trimester, between 20 and 24 weeks into a pregnancy.
Lacking an exception for the preservation of the health of the mother, it’s unconstitutional to make partial birth abortion a felony with punishment including possible fines and jail time, as well as the automatic revocation of a convicted doctor’s state license to practice medicine for the requisite exception The state may promote but not endanger a woman’s health when it regulates the methods of abortion.
Ambiguity allowing interpretation by doctors to exclude other abortion methods also impose an undue burden on a woman’s ability to choose an abortion, as well as on those who perform abortions using methods similar to the partial-birth procedure. Justice Kennedy dissented, emphasizing what he described as the “consequential moral difference” between the dilation and extraction method and other abortion procedures.
Federal Partial Birth Abortion Ban Act
In 2003, Congress passed it and President George W. Bush signed the first federal law banning the D&X procedure. The law was immediately challenged, and lower courts, citing Stenberg, struck it down.
In Gonzales v. Carhart (2007), the Supreme Court upheld the federal ban even though the federal statute doesn’t contain an explicit exception in cases in which a woman’s health is in danger. This was a significant departure from earlier abortion rulings which required that laws restricting it include such a health provision.
Many states have since enacted laws requiring physicians to perform an ultrasound procedure prior to an abortion. In addition, a number of states have passed laws that, with very narrow exceptions, outlaw abortion beginning at 20 weeks into a pregnancy.
Laws mandating ultrasounds prior to an abortion build on requiring patients to give “informed consent” at least 24 hours before having an abortion. The new ultrasound laws create a more demanding consent requirement by compelling women seeking abortions to first undergo a trans-vaginal ultrasound procedure. Some of the new laws also mandate that the woman see an image of the fetus and listen to the sound of the fetal heartbeat prior to receiving an abortion. Other ultrasound laws require only that the health-care provider offer the woman the opportunity to view the image or listen to the heartbeat. Compulsory ultrasound law has been ruled to neither violate the First Amendment nor impose an “undue burden” on women seeking an abortion.
These laws are based in part on a theory that a fetus, from 20 weeks onward, can experience pain from an abortion procedure. Those who support the theory assert that a fetus of 20 weeks has developed pain sensors and will react to stimuli, such as a needle, with increases in blood pressure, heart rate and stress hormones.
Those that oppose such laws assert that the scientific evidence does not support the “fetal pain” theory. They maintain that a fetus does not develop the neurological structures necessary to experience pain until at least 26 weeks of development. Additionally, prohibiting abortions at 20 weeks’ gestation, before the point of viability, would impinge on the right to terminate pregnancies that threaten women’s health or involve severe fetal abnormalities. While approximately half of fetuses can survive outside the womb at 24 weeks’ gestation, there are no known cases of fetal survival before 21 weeks.
Original personhood laws attempted to define a fetus as a person from the moment of fertilization, or from the first stage of biological development. Now, they attempt to define a fetus as a person making any abortion a crime, including in cases of rape and incest, and when the health of the mother is endangered.
Supporters say it has nothing to do with abortion, but rather is designed to ensure that those who harm an unborn child in any manner will be prosecuted. An unborn child is considered part of the mother’s body and not a separate person in many states.
Other personhood measures want to give legal and constitutional rights to a woman’s fertilized egg, criminalizing women who seek abortions and the doctors who perform them. They would also restrict access to emergency contraception and other types of birth control, as some prevent a fertilized egg from implanting in a woman’s uterus.
Still others want state constitutions to protect the inalienable right to life of every human being at any stage of development. This would include prohibition on terminating a pregnancy based on sex or genetic defect.
Finally, personhood proponents claim nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion. They want to give state legislatures unlimited authority to pass restrictions and regulations on abortion, including banning them. Here we are.