Abortion is the termination of a pregnancy prior to birth, resulting in the destruction of the fetus. Such termination may arise from spontaneous abortion (termed “miscarriage”), where the fetus is delivered due to underlying fetal or maternal factors. It may also be caused by purposeful conduct including self-induced abortion, or surgical or medical abortion, where the embryo or fetus is removed through the use of instruments or drugs due to medical concerns or a discretionary decision to end the pregnancy. Induced abortion has been practiced throughout history by ancient, medieval, and contemporary societies. Public opinion regarding the propriety of such elective abortion has varied, influenced by religion, philosophy, medicine, and culture. In 1973 the abortion issue was addressed by the U.S. Supreme Court in the landmark decision of Roe v. Wade, in which the Court asserted that the Constitution, pursuant to the Fourteenth Amendment due process clause, affords a woman the right to choose abortion, within the context of permissible state regulations that reflect the state’s interest in the life of the fetus and the health of the woman. While the Court undeniably reinforced its support of the constitutional core of Roe in 1992’s Planned Parenthood v. Casey, it also provided greater opportunity for state legislatures to regulate the manner in which abortions will be conducted.
Many commentators anticipated that Roe would serve to balance the competing interests of the woman, the fetus, and the state and bring resolution to the issue. Instead, abortion has become one of the most divisive and politicized issues in the nation in a variety of contexts. Those conflicts include the morality of aborting a “person” as stated by opponents of abortion called “pro-life” versus the contention by “pro-choice” groups that a woman has a constitutional right to reproductive freedom. The interests of the state and federal government in regulating abortions conflict with the woman’s ability to exercise her right of choice in a manner that is not unduly burdened. Further, a jurisprudential conflict exists as to whether the Supreme Court via Roe and its progeny violates the tenets of federalism, and whether Congress, in issuing legislation governing abortion, violates the Tenth Amendment reservation of powers to the states to handle those issues, such as family matters, to which the federal government traditionally does not assert jurisdiction. So strongly do these interests permeate the societal landscape that judicial nominees and elected officials are often exposed to a litmus test with regard to their abortion views.
A historical review suggests that neither ancient nor contemporary society has exhibited a uniform attitude toward abortion. Instead, there has existed a complex interplay of a variety of religious, legal, medical, and philosophical viewpoints on when life begins and the morality of abortion. Restrictive criminal abortion laws in the United States, which prohibited abortion at any time except to spare the life of the mother, emanated from the latter part of the nineteenth century. Notably, these laws had no precedent in either ancient or common law experience. What is clear is that throughout all historical periods, women have sought abortions for a variety of reasons, abortion has been practiced, and such practice was never universally condemned by society.
Ancient Greeks and Romans appear to have rather freely practiced abortion, with neither the law nor religion posing significant impediments to abortion. Philosophical and religious positions adopted with regard to the commencement of life served to support the acceptance of abortion, at least in the early stages of gestation. Aristotle, for example, who reportedly approved of abortion, espoused a theory of life in which the fetus did not become infused with a soul or attain “animation” until a later stage of development, and did not achieve “rationality” until after live birth. Departures from this approving stance were evident. Notably, the Hippocratic Oath specifically prohibited doctors from providing abortive remedies. Commentators suggest, however, that the oath was not uniformly accepted in the Greek and Roman eras, and that support for abortion was prevalent.
Early Christian philosophers and theologians adopted a view similar to that of the Greeks, and asserted that life for a fetus did not begin until forty days after conception for a male and eighty days for a female. St. Augustine distinguished between the early fetus, which had not yet been infused with a soul, and the later fetus, which had been so endowed. While there existed no concurrence regarding the exact point at which the person was formed or animation occurred, the sentiment prevailed that abortion in the early stages of a pregnancy was not criminal. Thus, even under Christianity in the early eras, abortion prior to animation was not deemed murder. That position eventually altered through a combination of papal edicts, resulting in the current posture of the Roman Catholic Church, which is to regard conception as the beginning of human life, thus rendering any abortion violative of church doctrine.
The significance afforded stages of a pregnancy persisted in English common law. The notion of animation was replaced by the term “quickening,” which indicated that point in a pregnancy when the mother could recognize movement of the fetus in the womb. The quickening concept was utilized in common law by seventeenth- and eighteenth-century commentators such as Lord Edward Coke and Sir William Blackstone to denote that abortion performed prior to quickening was not an indictable crime. Commentators suggest that abortion performed subsequent to quickening was deemed a criminal offense, although there exists some dispute as to whether the crime was regarded as a homicide or a high misdemeanor, or whether any consensus developed as to the criminality of post quickening abortion.
This English common law tradition was incorporated into the established common law of the United States. Pursuant to that law, women in the American colonies and later the states were afforded broad discretion to terminate a pregnancy. It was not until the early nineteenth century that a few states, beginning with Connecticut in 1821, adopted criminal legislation to prohibit abortion post quickening. By the latter part of the nineteenth century, many states adopted statutes criminalizing abortion that departed from the quickening distinction, making all abortions illegal and increasing the penalties for offenses. Some commentators assert that the laws primarily protected women from ill-trained quacks; others contend that physicians sought strict regulation in order to control the profession. This anti-abortion campaign succeeded in rendering all abortions illegal in the majority of states unless it was performed by a physician to preserve the life of the mother. In 1873 the federal government entered the movement to oppose abortion when Congress passed the Comstock Law, which made mailing, importing, or transporting information on birth control and abortion a criminal offense.
TWENTIETH AND TWENTY-FIRST CENTURY ABORTION DEVELOPMENTS
Through the 1950’s the state statutory law with regard to abortion remained constant, with a majority of the states continuing to ban abortions, although some afforded exceptions for the health or life of the mother. After World War II, doctors increasingly espoused the notion of therapeutic abortions for those women seeking to terminate abortions. Under this rubric, a hospital abortion board would determine if the health of a woman were threatened by a pregnancy, thereby entitling her to an abortion. The 1960’s witnessed a more liberal attitude toward abortion, with both the American Medical Association and the American Law Institute supporting the liberalization of abortion laws. It was the U.S. Supreme Court decision of Griswold v. Connecticut in 1965 that provided the crucial underpinnings for the assertion that the right to an abortion was a constitutionally protected right. In Griswold, the Court nullified a Connecticut statute that had prohibited the use of contraceptives by married couples by holding that it violated the couple’s constitutional right to marital privacy. Such a privacy right, the Court contended, although not specifically enumerated in the Constitution, could be found in the emanations from the Bill of Rights. Griswold, coupled with the feminist movement of the 1960’s and the activism of Planned Parenthood, a successor organization to the American Birth Control League founded in 1921 by Margaret Sanger, propelled 4 states—New York, Hawaii, Alaska, and Washington—to repeal their criminal abortion statutes.
In a decision regarded by many as the landmark case of the twentieth century, the U.S. Supreme Court in its 1973 ruling, Roe v. Wade, invalidated a Texas statute first enacted in 1854 that criminalized abortion, and held that a woman has the fundamental right to choose an abortion based on that privacy provided in the Fourteenth Amendment’s due process concept of personal liberty. Establishing a trimester framework that focused on fetal viability, the Court held that during the first trimester, a woman could make an abortion decision with her physician; in the second, the states can establish limitations on that right to protect the health of the woman; and in the third, states can render abortion illegal due to their compelling interest in protecting potential life. Roe engendered criticism from both the pro-life groups who assert all abortion is criminal, and those adherents to the principles of federalism who urge that the federal government usurped the states’ power to determine the regulation or prohibition of abortion. Subsequent to Roe, the states and Congress passed restrictive legislation regarding the exercise of abortion rights. In 1977 Congress enacted the Hyde Amendment, which prohibited the use of Medicaid funds for abortion and which was upheld by the Supreme Court. Further, Congress unsuccessfully endeavored to pass a “human life” bill and a constitutional amendment that would establish personhood at conception in an effort to overturn Roe. The Supreme Court, in a series of decisions, continued to uphold challenges against Roe, invalidating state restrictions that it deemed inconsistent with the right to privacy (e.g., Thornburgh v. American College of Obstetrics and Gynecology(1986)). In other cases, while the Court reaffirmed Roe, it also permitted strict state prohibitions against abortions in public hospitals (e.g., Webster v. Reproductive Health Services (1989)). Further, the Court allowed a federal “gag rule” prohibition against the discussion of abortion in federally funded clinics in Rust v. Sullivan(1991).
The most significant case to be decided since Roe by the Supreme Court is the 1992 decision of Planned Parenthood v. Casey, which reasserted the constitutional core of its predecessor while limiting its expanse. Rejecting a surrender to political pressure on the “intensely divisive” issue, the Court adhered to stare decisis and refused to overrule Roe. It did, however, replace the trimester framework with a point of viability test, which refers to the time at which the fetus is capable of life outside the womb. States are permitted to regulate standards for abortions prior to that point as long as the restrictions do not impose an “undue burden” upon a woman’s fundamental liberty interests. After viability, the state may proscribe abortion except if the mother’s health is endangered. Thus, Casey, which affords more weight to the state’s interest in protecting the fetus before viability, upheld Pennsylvania’s statute with regard to both a twenty-four-hour waiting period, and parental notification by adolescents or a judicial hearing known as a bypass option where a judge must decide a minor’s maturity and capability of giving informed consent. Casey did, however, nullify the spousal notification requirement of the Pennsylvania Abortion Control Act as an unconstitutional provision.
Pursuant to the authority of Casey and its “undue burden” standard, many states have enacted restrictions on abortion, which typically include parental consent with a judicial bypass option or parental notification requirements, and mandatory waiting periods. Critics note that if judges are unprepared or unwilling to support the right to an abortion, adolescents are exposed to an undue burden. Other commentators urge that all parental notification statutes constitute an undue burden in that minors, in attempting to avoid such involvement, delay abortions or cross state lines to jurisdictions that contain no such parental requirement. Other laws imposing stricter licensing, building, and safety requirements upon the clinics or doctors’ offices performing abortion epitomize the restrictions invoked by the states subsequent to Casey.
Partial birth abortion bans enacted by states and Congress illustrate further attempts to restrict access to abortion and raise the issue of federalism. Partial birth abortion legislation, so named by abortion opponents, addresses the infrequently used late-term method of abortion known in medical parlance as dilation and extraction (also known as intact D&E, D&X, or intact D&X). The procedure involves the dilation of the cervix, the partial removal of the whole fetus, and often the collapse of the skull. Approximately 20 states have laws that prohibit partial birth abortions. In 2000, the Supreme Court in Stenberg v. Carhart (“Carhart I”) overturned the Nebraska partial birth ban as unconstitutional because it lacked an exception to protect the mother’s health, thus placing an undue burden on women’s right to choose. The Nebraska partial birth ban prohibited both intact D&E and the more common dilation and evacuation (“D&E”) procedures, the latter of which allows for the removal of the fetus in parts instead of in whole. Congress twice attempted to enact similar legislation, but President Bill Clinton vetoed the act. In 2003, however, the federal Partial Birth Abortion Ban Act was signed by President George W. Bush, and its constitutionality affirmed by the Supreme Court in a narrow 5-4 opinion in the 2007 Gonzales v. Carhart (“Carhart II”) decision, finding that the statute was more narrow and specific than the Nebraska partial birth ban of Carhart I. In particular, the Court reasoned that the Act banned the deliberate and intentional performance of an intact D&E procedure, but not the more common D&E procedure (so long as those who perform D&E procedures intend to abide by the anatomical landmarks of the statute). As a result of this narrower language, the Court reasoned that there is no substantial obstacle to the right to abortion and, further, that there is no certain risk to women’s health. Opponents of Carhart II perceive the decision as further encroachment upon states’ rights, and violative of the Tenth Amendment’s reservation of powers to the states.
During the late 1980’s and through the early 1990’s, anti-abortion protesters engaged in a range of activities intended to deter abortion practice, including clinic bombings and blockades, assault, arson, bioterrorism, harassment, and the murder of several abortion providers. Opponents of abortion established websites that detailed personal information regarding abortion providers accompanied by language some regarded as threatening. The incidents of violence during the years 1986 to 2000 numbered more than 3,000. In 2003, Florida executed Paul Hill, an anti-abortion activist who killed a doctor and his escort in 1994.
The Freedom of Access to Clinic Entrances Act (FACE) was enacted by Congress in 1994 to address the violence engendered by the abortion conflict. FACE, which prohibits the use of force, threats of force, and physical obstruction of clinic entrances, markedly reduced the violent attacks on clinics, although such attacks persist. Constitutional challenges to FACE have not proved successful, as the courts reason that the First Amendment does not afford protection to those acts prohibited by FACE. Efforts to balance the right of legitimate protest against abortion versus an individual’s right to obtain medical treatment and counseling resulted in some state legislative enactment of buffer zones. In the 2000 decision of Hill v. Colorado, the Supreme Court upheld a Colorado statute that made it a crime at a health care facility for an individual to come within eight feet of another without consent, for purposes of counseling and protest with regard to abortion. The statute was not deemed an unlawful restraint of freedom of speech.
Another vehicle that abortion supporters hoped to utilize in the effort to deter violent or obstructionist protests was the Racketeer Influenced and Corrupt Organizations Act (RICO), a federal statute intended to address organized crime. In 1994 the Supreme Court had ruled that RICO could be utilized to civilly sue and obtain injunctive relief and damages against those who conspired to commit abortion clinic violence. But in the 2003 decision of Scheidler v. National Organization for Women, Inc., the Court held that the activities of the abortion opponents, which deprived persons of the right to a legal abortion by compelling the closing of the clinics, did not satisfy the requisites of extortion necessary for RICO to be invoked. Since the protestors had obtained no property of the clinic through their threats, their coercion alone was not sufficient to justify the application of RICO.
The Supreme Court again reined in states’ rights in the 2016 decision of Whole Woman’s Health v. Hellerstedt. In Hellerstedt, the Supreme Court struck down certain provisions of Texas House Bill 2 that required (i) physicians that perform abortions to have admitting privileges in a hospital within 30 miles of the abortion facility, and (ii) that any abortion facility meet the minimal Texas standards of ambulatory surgical centers. In a 5-3 majority opinion, the Court held that these provisions of Texas House Bill 2, on balance, did not provide sufficient medical benefits to justify the burden imposed on women who desired to exercise their right to abortion. The two provisions would have limited the number of abortion facilities in Texas from over forty to only seven or (possibly) eight, and these facilities would not likely have been able to meet the demand for abortions in the state.
FEDERALISM AND ABORTION
The federalism issue as applied to abortion relates to the division of power between federal and state government and whether it is appropriate for the federal government to act in this particular sphere. Traditionally states determine their stance on public policy issues such as family matters and medical care through their elected legislature, and such positions are not invalidated by federal courts or the federal legislature. The roots of the federalism issue in this particular context are found in Griswold and Roe, where some commentators urge that the Supreme Court violated the limitations imposed by federalism by using privacy law to invalidate state legislation regarding contraceptives and abortion. Other commentators contend that the decisions of Roe and Casey do comport with the principles of federalism as the Court, in deference to states’ rights, protects the constitutional role of the states by affording them the opportunity to regulate abortion.
Despite the holding in Hellerstedt, states continue to maintain broad powers to regulate abortions. In 2017, approximately 19 states required abortions to be performed only in a hospital after a certain point in pregnancy, 41 states required a licensed physician to perform abortions, 43 states restricted the right to abortion beyond varying gestational time limits (except when necessary to protect a woman’s health or life), 20 states prohibited partial birth abortions, most states had laws regulating abortion funding, 11 states restricted abortion insurance coverage (most having an exception for a woman’s health or life risks), 45 states allowed individual providers to refuse to participate in abortions, 42 states allowed institutions to refuse to perform abortions, 18 states required counseling prior to an abortion, 27 states required a waiting period before the abortion could be performed, and 37 states mandated parental involvement (often consent) for a minor to have an abortion (see Ayotte v. Planned Parenthood of Northern New England (2006)). While the federal Constitution places limits on state regulation of abortion, there is still considerable power reserved to the states under the Tenth Amendment and contemporary Supreme Court jurisprudence.
The divisive nature of the abortion issue will continue to foment conflict among those who regard abortion as immoral and as violative of the right to life of the fetus, and those who regard abortion as the right of a woman to reproductive freedom, with such right superseding that of a fetus that has not attained personhood.
Neal E. Devins, Shaping Constitutional Values: Elected Government, the Supreme Court and the Abortion Debate’ ‘ (Baltimore: Johns Hopkins University Press, 1996); David J. Garrow, “Abortion before and after Roe v. Wade: An Historical Perspective,” Albany Law Review 62 (1999): 833–852; Leslie J. Reagan, When Abortion Was a Crime: Women, Medicine, and Law in the United States, 1867–1973 (Berkeley: University of California Press, 1998); Laurence H. Tribe, Abortion: The Clash of Absolutes (New York: W.W. Norton, 1992); and The Guttmacher Institute, An Overview of Abortion Laws (as of December 1, 2017).