History Of Abortion In The Court Essay, Research Paper

Abortion. The word alone provokes strong

emotion in both women and men alike. Roe v. Wade was decided twenty five

years ago, but still the fight is not over. Instead, there are mass rallies,

bombings of abortion clinics, murders of doctors and workers at such clinics,

intimidation, arrest, political lobbying, and numerous Supreme Court cases.

What is it that divides families, and keeps old friends from speaking to

one another on the topic? Why are opinions so polarized and why are minds

so closed? As the great philosopher Plato said, “A perfectly simple principle

can never be applied to a state of things which is the reverse of simple”.

The topic of abortion is anything but simple, and our laws governing the

matter are ever changing to try to achieve a middle ground.

In the late nineteenth century a specific

backward law was added in Connecticut. It banned not the sale or manufacture

of contraceptives but their use. The Director of the Planned Parenthood

League of Connecticut, Griswold, and its medical director, a licensed physician,

were convicted under the statute as an accessory after they gave advice

to married couples on contraception. Griswold appealed the statute to the

Supreme Court, where the question was whether the statue violated the Constitution.

The Court was convinced that it did, though it refused to become specific

about what clause of the Bill of Rights it violated. The court drew notice

to a “zone of privacy”, which was an emanation created by various amendments.

This “zone” grew out of the right to privacy implicit in the First, Fourth

and Fifth Amendments. The Ninth Amendment also hints at its existence when

it says that the enumeration of specific rights does not preclude the existence

of other rights enumerated. With Griswold v. Connecticut, 381 U.S. 479

(1965), the Court established that married couples have a “Right to Privacy”

as a prenumbra to the Bill of Rights.

Seven years after the Griswold decision,

the Supreme Court expanded the “right to privacy” to include the right

of women to obtain abortions, during the first six months of pregnancy.

Roe was blocked, by the laws of Texas, from obtaining an abortion, because

Texas law prohibited abortion except to save the life of the mother. Citing

the Griswold case, she appealed to the Supreme Court, charging that the

Texas statute was an unconstitutional restriction of her “right to privacy”.

By a margin of seven to two, the Court agreed.

In his majority opinion of Roe v. Wade,

410 U.S. 113 (1973), Justice Blackmun said the Court found no agreement

on when human life begins. And instead of extending it back to the period

of fertilization, the Court tended to fix its origin somewhere in the period

of “quickening”, when the fetus begins to move in the uterus, which might

be anywhere from forty to eighty days. The Court’s decision was grounded

in the Ninth Amendment by saying where uncertainty exist, the state has

no right to make laws pretending to be certain. However, he rejected the

view that the state has no interest in a woman’s decision whether or not

to have an abortion. He expressed that the state “does have an important

and legitimate interest in protecting and preserving the health of the

pregnant woman” and it has “still another important and legitimate interest

in protecting the potentiality of human life. Blackmun asserted that the

state’s interest increases as the pregnancy progresses. During the first

three months, the state has no compelling interest. However, the state

may enact abortion regulations affecting the second three months of the

pregnancy, but only to protect the health of the pregnant woman. Only with

regards to the last trimester man the state enact regulations to protect

“potential life”, unless the pregnant mother’s health is in danger.

Over the past twenty five years since the

Roe decision, the Court has clearly chipped away at Justice Blackmun’s

open framework of the Roe case. Maher v. Roe 432 U.S. 464 (1977), was brought

before the Court as a challenge to Connecticut’s limitation of state Medicaid

funding to medically necessary abortions and refusal to fund “elective”

abortions. However, the court held that the law is constitutional. It declared,

the state need not fund a woman’s exercise of her right to choose abortion

even though it pays the costs of childbirth. Then in 1980, in Harris v.

McRae 448 U.S. 297, the Court heard the challenge to the Hyde Amendment,

which bans federal Medicaid funds for abortion except for those necessary

to save the woman’s life. The Court held that the Hyde Amendment is constitutional

and that the government has no obligation to provide funds for the exercise

of the right to choose abortion even though it pays for the cost of childbirth.

Currently, forty-six states and the District of Columbia have laws or constitutional

amendments similar to the federal ban on abortion coverage for Medicaid

recipients, which funds abortion services only when a woman’s life is at

risk or her pregnancy resulted from rape or incest. At this time, laws

limiting funding for low-income women’s abortions are in effect in 34 states

and blocked by courts in 12.

In Webster v. Reproductive Health Services

492 U.S. 490(1989), the Court heard a challenge to Missouri’s 1986 Act:

(a) declaring that life begins at conception; (b) forbidding the use of

public funds for the purpose of counseling a woman to have an abortion

not necessary to save her life; (c) forbidding the use of public facilities

for abortions not necessary to save a woman’s life; and (d) requiring physicians

to perform tests to determine viability of fetuses after 20 weeks gestational

age. It held that, (a) the declaration of when life begins to go into effect

because five justices agreed that there was insufficient evidence that

it would be used to restrict protected activities such as choices of contraception

or abortion. Should the declaration be used to justify such restrictions

in the future, the affected parties could challenge the restrictions at

that time; (b) unanimously declined to address the constitutionality of

the public funds provision. (c) upheld the provision that barred the use

of public facilities. It ruled that the state may implement a policy favoring

childbirth over abortion by allocations of public resources such as hospitals

and medical staff; and (d) upheld the provision requiring viability tests

by interpreting it not to require tests that would be “imprudent” or “careless”

to perform.

In Webster, the Court declined explicitly

to overturn Roe v. Wade but in effect invited the 50 state legislatures

to decide for themselves. Currently, because of the Webster decision, 19

states have banned so-called “partial-birth” abortion and other abortion

methods. Most of these laws make no exception to protect a woman’s health

and ban the abortion methods throughout pregnancy. Eight are now in effect.

However, in two of these states (Alabama and Georgia) the laws are restricted

in their application to post-viability abortions.

Another big chip was taken from Roe in

1992 when the Court heard Planned Parenthood of Southeastern Pennsylvania

v. Casey 505 U.S. 833. The nature of the case was a challenge to Pennsylvania’s

1989 Abortion Control Act. The 1989 statute required that, except in narrowly

defined medical emergencies: (a) a woman wait 24 hours between consenting

to and receiving an abortion; (b) the woman be given state-mandated information

about abortion and offered state-authorized materials on fetal development;

(c) a married woman inform her husband of her intent to have an abortion;

and (d) minors’ abortions be conditioned upon the consent, provided in

person at the clinic, of one parent or guardian, or upon a judicial waiver.

In addition, physicians and clinics that perform abortions were required

to provide to the state annual statistical reports on abortions performed

during the year, including the names of referring physicians. The court

held that all restrictions, except for the husband-notification requirement,

are constitutional. In reaching its decision, the court reaffirmed the

validity of a woman’s right to choose abortion under Roe v. Wade, but revoked

its longstanding definition of that right as “fundamental.” Instead, the

court constructed a new standard of review that allows restrictions on

abortion prior to fetal viability so long as they do not constitute an

“undue burden” to the woman. Such provisions are not unduly burdensome

merely because they are an attempt to persuade a woman to carry her pregnancy

to term. Pennsylvania’s husband-notification requirement was struck down

as unduly burdensome under the new standard.

This landmark decision gave states the

power to enact forced parental consent or notification for minor females

and mandatory delays before abortion and the opportunity for the state

to councel women with bias information against abortion. Currently, twenty

states have passed requirements that women receive information biased against

abortion and, in all but one state, delay a set number of hours or days

before having an abortion. Also, an overwhelming number of states have

adopted laws mandating that a young woman must obtain the consent of or

notify one or both parents prior to her abortion. Unless otherwise noted,

these measures contain a judicial or other bypass for young women who cannot

involve their parents.

Unfortunately, I believe that if Roe v.

Wade keeps getting chipped away, there won’t be much ground left to stand

on. I believe these recent Supreme Court ruling have reached a middle ground

between “pro-life” and “pro-choice”. However, I also believe that as long

as the topic creates and stirs such strong emotion in the public, politicians

will continue to use it as a platform.