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A, Abortion.

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved. Subscriber: null; date: 16 January 2021

Abortion.

Alexis de Tocqueville observed in Democracy in America that “there is hardly a political question in the United States which does not sooner or later turn into a judicial one” (Meyer, ed., 1969, p. 270). It was not until the latter half of the nineteenth century that criminal sanctions against abortion became widespread, and not until the latter half of the twentieth century (p. 3) that the notion of a constitutional right to sexual autonomy took hold in the public mind. That development guaranteed that abortion would turn into a judicial question.

As part of the *police power over health and morals, abortion laws have traditionally been the province of state governments. In early American history, abortion was more dangerous than childbirth, which was life-threatening itself. Lawmakers who regulated sexual activity in minute detail saw no need to make abortion a crime. When medical advances made abortion safer in the nineteenth century, some states forbade abortion primarily to protect pregnant women. Other early anti-abortion laws were essentially elements of state obscenity statutes, often called “little Comstock laws.” These laws, similar to the 1873 federal Comstock Act, included contraceptives and abortifacients among the forbidden “obscene” materials. Early in the twentieth century, reformers like Margaret Sanger began to promote birth control as a means of limiting family size, especially for the poor. By 1960, forty-eight states had legalized birth control.

The decriminalization of birth control enhanced individual freedom by increasing women’s control over their fertility, but *contraception did not ensure reproductive self-determination for women. Sexual intercourse could occur without a woman’s consent—not only through rape, but also because of the legal obligation to satisfy a husband’s sexual demands. Existing methods of female contraception were unreliable even when a woman was free to use them.

Since women still found themselves confronted with unwanted pregnancies, access to abortion was necessary for reliable fertility control. But abortion has always been a more controversial issue than contraception. For many who consider fetuses persons, abortion is the equivalent of homicide. Even people who are not convinced that fetuses are full human beings may have difficulty accepting the idea of legal abortion. While both men and women use contraception, only women get pregnant and can abort. The idea that women have equal rights with men is a relatively new notion. Moreover, society’s cultural idea of womanhood has traditionally been bound up with motherhood. The choice of abortion is made by a woman who, at least at that specific point in time, does not want a child—and this possibility challenges widely accepted notions of the role of women.

As late as the 1960s, abortion was still illegal everywhere in the United States, except to save the mother’s life. The revitalization of feminism in the late 1960s gave impetus to the abortion rights movement. A portent of changing opinions was the 1962 Model Penal Code, in which the American Law Institute (ALI) recommended that abortion be legal when the pregnancy resulted from rape or when the baby was likely to be seriously disabled. Fourteen states adopted some or all of the ALI recommendations between 1965 and 1970. New York, Alaska, and Hawaii repealed their abortion laws outright.

Abortion and Privacy

*Griswold v. Connecticut (1965) disposed of the last surviving laws against birth control and established a constitutional right to a realm of *privacy. The Supreme Court ruled that the right to use contraceptives lay within a protected “zone of privacy” created by “penumbras” emanating from several provisions of the *Bill of Rights. Many legal scholars found this argument a less than convincing justification for the judicial creation of a right nowhere mentioned in the Constitution, but the ruling established a right whose content would be defined and explained by later decisions.

In 1973, the Court extended the right of privacy to the choice of abortion. In *Roe v. Wade, a majority of seven justices ruled that the “right of privacy … is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy” (p. 153). Justice Harry *Blackmun’s majority opinion emphasized “the detriment that the state would impose on the pregnant woman” and “the distress, for all concerned, associated with an unwanted child” (p. 159.) But many critics on both sides of the abortion issue consider this opinion unpersuasive and poorly grounded. It fails to build a logical bridge between Roe and Griswold. Roe contains no argument that abortion is sufficiently similar to birth control to justify its inclusion within the protected zone of privacy. Blackmun observed that no social consensus existed that fetuses are human beings and that American law did not recognize the unborn as persons. But the state did have a compelling interest in “potential human life.” The state could also restrict abortion when necessary to protect the health of the mother. Each of these interests became strong enough to justify restrictions at different stages of pregnancy: maternal health at the end of the third month; potential life at the end of the sixth (when, according to medical authorities at the time, the fetus was viable outside the womb). Therefore, the constitutional right to choose abortion was a limited one. In the first trimester, the state had no power to restrict abortion; beginning with the second trimester, the state might regulate, but not prohibit, abortion; and in the third trimester, the state might prohibit abortion except when necessary for the mother’s life or health.

More than thirty years after Roe was decided, it remains one of the most controversial decisions in Supreme Court history. Supporters of reproductive freedom welcomed the ruling (p. 4) enthusiastically. But Roe also led to the formation of the “right-to-life” movement. Even among Americans who opposed restrictions on abortion, many thought that the Court had usurped power belonging to the elected branches of government. Critics pointed to the absence of textual authority in the Constitution and demanded that the people’s elected representatives decide what abortion laws they wanted and what the word “person” meant to them.

Efforts to counter Roe v. Wade have continued in full strength into the twenty-first century. A constitutional amendment that defined “person” to include the unborn has been introduced in Congress several times. But neither this “human life amendment” nor a bill that attempted the same result through a federal law emerged from Congress. However, Congress and many state legislatures have repeatedly passed laws negating, or at least narrowing, the decision. These statutes attempt to make it harder for women seeking abortions to get them. The statutes are inevitably challenged in court. From 1973 to 1986, when William *Rehnquist replaced Warren *Burger as chief justice, the Supreme Court generally distinguished between obstacles to the choice of abortion and refusals to facilitate the choice, invalidating most of the former while upholding the latter. But in recent years the courts have expanded the government’s power to restrict abortion.

Abortion and Public Funding

The Supreme Court has consistently upheld laws denying governmental support for abortion. The first “Hyde amendment,” a federal limitation on the use of Medicaid funds, was enacted in 1976. It and similar state laws, all of which make exceptions for abortions to save the mother’s life, continue to survive judicial scrutiny. Justice Potter* Stewart’s majority opinion in *Harris v. McRae (1981) is typical. “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” (p. 316). Justices William *Brennan, Thurgood *Marshall, and Blackmun maintained that these laws make safe abortions unavailable for poor women, thus creating a double standard of constitutional rights. But Stewart’s view prevailed. A constitutional challenge to these laws is even less likely to succeed now that Chief Justice Rehnquist, a dissenter in Roe, is the only holdover from that case still on the Court and several supporters of Roe have been replaced by opponents. Rust v. Sullivan (1991) further limited poor women’s access to abortion by upholding the federal* “gag rule” forbidding clinics receiving federal funds from even advising clients that abortion is available. This “*gag rule” was revoked in Bill Clinton’s first week as president and reinstated when George W. Bush took office.

Legal Limits on Reproductive Choice

Some statutory obstacles to abortion are direct: for example, a spousal consent requirement for a married woman or parental consent for a minor. The Supreme Court invalidated mandatory spousal consent in its first post–Roe abortion case (Planned Parenthood v. Danforth, 1976) and mandatory spousal notification in *Planned Parenthood v. Casey (1992.) Parental consent and notification have proved more problematic. The constitutional rights of minors are not as extensive as those of adults, and parental consent is necessary before a minor can get medical treatment. Nevertheless, Danforth rejected a parental consent requirement, and the Court has never upheld a law that gives parents an absolute veto. But laws requiring parental involvement have been sustained. The Supreme Court upheld a parental notification requirement in H.L. v. Matheson (1981) and several laws requiring consent from either a parent or a judge (Bellotti v. Baird, 1979; Planned Parenthood v. Ashcroft, 1983; Ohio v. Akron Center for Reproductive Health, 1990.) In *Hodgson v. Minnesota (1991), the Court upheld a law requiring consent from both parents or a judge. These “judicial bypass” provisions require a minor seeking an abortion to convince a judge that she is mature enough to make the decision and that the abortion is in her best interests.

Some legal obstacles are designed not so much to impede the choice of abortion as to discourage it. These deterrents include prohibitions on the use of certain abortion techniques, mandatory counseling or waiting periods, or requirements that abortions take place in hospitals (the vast majority of elective abortions are performed in clinics). The Supreme Court has yet to sustain the first type of restriction. As recently as 2000, Stenberg v. Carhart struck down a Nebraska law prohibiting what the anti-choice movement calls “partial-birth abortion” (a technique called dilation and extraction that is used in late term procedures) on the grounds that the law was unconstitutionally vague and excessively burdened the woman’s choice.

Several rulings between 1976 and 1986 overturned the second and third types of restriction, either on grounds of vagueness and unreasonableness or because, as Justice Brennan wrote in *Thornburgh v. American College of Obstetricians and Gynecologists (1986), “the states are not free, under the guise of protecting maternal health or potential life, to intimidate women into continuing pregnancies” (p. 759.)

The Conservative Retreat

The anti-choice movement showed its electoral strength in 1980, (p. 5) when Ronald Reagan won the presidency. Reagan promised to appoint justices who would overrule Roe. He replaced members of the Roe majority with Sandra Day *O’Connor, Anthony* Kennedy, and Antonin *Scalia. Reagan’s successor, George H. W. Bush, replaced Brennan with David *Souter and Marshall with Clarence *Thomas. The Roe consensus began to unravel even before Rehnquist replaced Warren Burger. For example, Justice O’Connor’s dissent in Akron v. Akron Center for Reproductive Health (1983) insisted that the trimester framework was “on a collision course with itself” (p. 458.) Medical advances, she argued, had made late abortion safer and had kept alive infants born earlier.

*Webster v. Reproductive Health Services (1989) eliminated the trimester framework and represented a significant retreat from abortion rights. In upholding a Missouri law that declared that life began at conception, forbade the use of any public funds and facilities for abortion, and required viability testing in abortions after twenty weeks, the Court sustained restrictions similar to those it had invalidated in Akron and Thornburgh. Webster came within one vote of overturning Roe outright. O’Connor supported the restrictions but refused to join four other justices in reversal.

Roe Reaffirmed?

The replacement of Brennan and Marshall with David Souter and Clarence Thomas was widely regarded as the death knell for Roe. The new Court had its next opportunity to reverse the decision in Planned Parenthood v. Casey (1992). To the astonishment of virtually every Court-watcher in the country, this did not happen. Justice Souter joined O’Connor and Kennedy in a plurality opinion reaffirming the “central holding of Roe” (p. 843): the right to an abortion before viability, a state’s power to impose restrictions after viability, and a state’s legitimate interests in protecting maternal health and fetal life throughout pregnancy. For the first time, the Court recognized discouraging abortion as a valid state interest. From now on, abortion laws would survive judicial scrutiny unless they imposed an “undue burden” (p. 874). Casey demoted abortion from the status of a constitutional right; restrictions need no longer pass the “compelling state interest” test of Roe. The Casey majority upheld an informed consent requirement, a mandatory twenty-four-hour waiting period, and a parental consent/judicial bypass provision.

Casey remains binding precedent. The government may not ban abortion outright, but laws that leave poor women, rural women, and minors without access to abortion may stand. The Court has not revisited the constitutionality of abortion laws in general. The election of an anti-choice president in 2000, and the Republican control of Congress, worried reproductive-choice advocates, especially as they anticipated George W. Bush’s appointments to the Court. The development of RU-486, an abortion-inducing drug, may render the abortion controversy obsolescent. Anti-abortion forces lost their battle against RU-486 when the Food and Drug Administration gave the drug full marketing approval in 2000. It is now widely available.

Mark A. Graber, Rethinking Abortion (1996); Eileen L. McDonagh, Breaking the Abortion Deadlock (1996); Karen O’Connor, No Neutral Ground? (1996); Rosalind P. Petchesky, Abortion and Woman’s Choice (1990); Lawrence H. Tribe, Abortion: The Clash of Absolutes (1991).

Judith A. Baer