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Abortion In America: An Overview

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 [1] 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 ("´┐Żnor shall any state deprive any person of life, liberty, or property, without due process of law")[2]. Hence, abortion was decriminalized in the U.S.A. after this judgment.

Facts of the case
In 1970, a single (unmarried) woman pregnant with a third child, Norma McCorvey, resident of Texas, by a pseudonym - "Jane Roe" brought up a federal action against Henry Wade, District Attorney of Dallas County, challenging the criminal abortion laws in Texas. Roe wished to have an abortion after discovering she was pregnant however back then abortion was illegal in Texas and it was prohibited, except in cases where the mother's life was in danger. In her lawsuit, Roe claimed that the state laws were unconstitutionally vague and infringed her right to personal privacy.

Issue Raised:
  • Whether the Constitution recognizes the right of a woman to terminate her pregnancy by abortion?
  • Whether the abortion right is absolute?

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:
    1. 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)
    2. 2nd trimester (12 to 24 weeks): a state may regulate abortion if the regulations are subject to the health of the pregnant person.
    3. 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 [3] 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.

Facts Of the case:
The Pennsylvania Abortion Control Act of 1982 brought up five controversial provisions for a person seeking an abortion, those were:
  1. Doctors were required to inform women considering abortion about its potential negative impacts & risks on their health and woman's consent on the same
  2. A 24-hour waiting period was required before undergoing the abortion procedure
  3. Married women were required to notify their husbands prior to abortion
  4. Minors seeking abortion were required to get the consent of at least one parent/guardian
  5. Certain reporting requirements were imposed on facilities providing abortions services
Several abortion clinics and physicians challenged these provisions on the grounds that they were unconstitutional.

Issues raised:
  • Whether the decision delivered in Roe v. Wade should be overturned as misconceived?
  • Whether the challenged provisions of Pennsylvania's abortion statute constitutional?

  • 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 [4], 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.

Facts of the case
These two provisions were considered unnecessary regulations on doctors and facilities that provided abortion. The "admitting-privileges requirement" provided that a physician performing an abortion must have active admitting privileges at a hospital located not further than 30 miles from the abortion facility and the "surgical-center requirement" required an 'abortion facility' to comply with the standards for ambulatory surgical centers under Texas law. These restrictions were referred to as 'TRAP laws' ("Targeted Regulation of Abortion Providers").

The constitutionality of the statute was challenged by a group of Texas abortion providers including Whole Woman's Health on the grounds that such provisions resulted in a significant decline of abortion facilities from 42 to just 19 due to the complexity and costs involved in compliance of both provisions.

Issues raised
  • Whether both the disputed provisions of House Bill 2 (H.B. 2) were unconstitutional?
  • The U.S. Supreme Court by a 5-3 vote stated that both the challenged provisions of Texas law H.B. 2 were unconstitutional because such restrictions on the abortion facilities imposed an undue burden on women seeking abortion rather than providing any significant medical benefits to them.

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 [5]. 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 [6] 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 Mississippi, challenged the constitutionality of the act arguing that it is a complete ban on pre-viability abortion.

Issues raised
  • Whether Mississippi's law banning all abortions after 15 weeks of gestational age is unconstitutional?
  • Whether the prohibitions on all elective abortion before viability are unconstitutional?
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"[7]. 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" [8].

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.

According to a study by Guttmacher Institute, out of a total of 50 states, 26 are certain or likely to ban abortion, i.e. half of the U.S. In the anticipation of the decision, out of those 26 states at least 13 had already passed 'trigger laws' which were enacted immediately after the judgment in a few states, and in others, it will be in the upcoming weeks.

These states include: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, South Dakota, Oklahoma, Tennessee, Texas, Utah, and Wyoming. While all these trigger laws have the same intent of banning abortion, their implementation, timelines and other details may vary from state to state [9].

According to The New York Times, by the end of June 2022, states that banned abortion soon after the judgment include: Alabama, Arkansas, Missouri & South Dakota with no exceptions for rape or incest, and Oklahoma with exceptions to rape and incest. Some states like Arizona, Louisiana, West Virginia, Wisconsin, Kentucky and Utah had existing bans on abortion which were temporarily blocked by the court but may be enforced in the future.

States like Ohio and South Carolina have restrictive laws that prohibit abortion after six weeks of pregnancy. The Texas Supreme Court has allowed a 1925 law banning abortion to take effect and it also has a separate trigger ban, with no exceptions for rape or incest. Idaho, Tennessee, Mississippi, North Dakota, and Wyoming are expected to enact the trigger bans soon following the end of next month [10].

Who will be affected the most?
The residents of the states that will ban abortion will suffer the most consequences as they will not have any access to abortion services. People seeking an abortion will have to travel to other states where it will be legal. Such travel distances will significantly increase as abortion seekers will have to go to another state rather than nearby cities. This can become an obstacle to abortion as travel distance may vary from a few miles to hundreds of miles and women may end up carrying their pregnancies.

According to a study by Diana Greene Foster, a reproductive-health researcher at the University of California, the poor women who will be denied an abortion are more likely to live in poverty afterwards as women rarely choose to give the child for adoption and such unplanned pregnancies can bring challenges to the families with the burden of unwanted expenses of raising the child [11].

Furthermore, the states where abortion remains legal will also be affected. The abortion service providers in these states will witness an enormous number of patients at their facilities on a daily basis as more than half of the states have already banned abortion, thus decreasing the number of abortion facilities in the country. It will be a challenge to accommodate so many patients.

Various public-health researchers and economists claim that restricting abortion access has negative consequences for pregnant people as denial of abortion may affect their psychological and physical health as well as of the infant.

Prohibition of abortion access across numerous states of the country is likely to cause severe health, financial and emotional consequences, especially for people in marginalized communities. These bans will have severe impacts on people who face discriminatory obstacles when accessing health care, those having difficulty making ends meet, members of the LGBTQ community, younger people, immigrants, people with low incomes, and people in rural communities.

Prohibiting abortions does not guarantee that demand for abortion or unintended pregnancies will come to stop. Neither will it benefit one's health instead it will create more stress and act as an obstacle for people who seek an abortion. States like Alabama, Arkansas, Missouri & South Dakota have already passed laws banning abortion even in cases of rape or incest.

According to a study held by Pew Research Centre, the majority of both men and women in U.S.A. express their support for abortion of which 63% of women & 58% of men are of the opinion that abortion should be legal. Even though the majority of Americans are against overturning Roe, a majority also prefer the combination of the right to abortion with restrictions but not up to an extent completely banning it [12].

According to the U.S. Centers for Disease Control and Prevention, in 2019, 79% of all U.S. abortions occurred prior to the 10th week of gestation; 93% occurred prior to 14 weeks gestation [13]. Some states have prohibited abortion after six weeks of pregnancy which is generally long before many women become aware of their pregnancies. Pregnancy is possible to be detected within about four weeks from the first day of a woman's period and let's say if a woman detects her pregnancy after four weeks and decides to have an abortion she will have only two weeks to obtain it.

Justice Alito, who delivered the majority of decision in Dobbs v Jackson Women's Health Organization case that overturned Roe said, "The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision" [14], but the question that arises here is that even though there is no explicit mention of 'same-sex marriage' also in the U.S. constitution, it is considered as a fundamental right. It was legalized in every state of the U.S.A. by 2015.

  1. 410 US 113 (1973)
  2. Fourteenth Amendment of United State's Constitution
  3. 505 U.S. 833 (1992)
  4. 579 U.S. 582 (2016)
  6. 597 U.S.(2022);

    Award Winning Article Is Written By: Mr.Ravneet Singh Gill
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