Supreme Court's Evolving Rulings on Abortion
In more than three decades since its 1973 Roe v. Wade decision legalizing abortion, the Supreme Court has weighed in on the issue another two-dozen times.
It has repeatedly upheld Roe's central holding: that the U.S. Constitution guarantees a right of privacy that includes a woman's right to have an abortion during the first thirteen weeks of pregnancy, and later to safeguard the woman's life or health.
But along the way, the pro-life movement convinced legislators to enact a host of laws aimed at reducing Roe's effects. States passed a variety of laws restricting abortion, such as those requiring parental notification, spousal consent and a waiting period before the procedure is allowed. Others required that women having second-trimester abortions do so in a hospital – rather than a free-standing clinic -- and they mandated that physicians use abortion methods most likely to result in the survival of the fetus. New laws and regulations also prevented public funds from being spent on abortion procedures.
The legislative deluge led to a string of Supreme Court rulings that have served to limit its scope, but also to establish it as a legal precedent. The following timeline details some of the key decisions that have shaped the Court's still-evolving thinking on abortion:
1965: 'Griswold v. Connecticut'
Although it didn't address abortion, this precedent-setting case established a constitutional right of privacy for married couples seeking birth control and served as an essential precursor to the Roe v. Wade decision. In Griswold, the Supreme Court invalidated a Connecticut law that discouraged marital sex for reasons other than procreation by criminalizing birth control counseling or the provision of contraceptives. The court ruled that Estelle Griswold, who was convicted after opening a New Haven Planned Parenthood clinic, could reopen her clinic based on privacy rights guaranteed in the amendments to the Bill of Rights. Dissenting opinions by two justices pointed out that nowhere does the Constitution explicitly state a "right to privacy." But the Griswold decision is nonetheless considered a lasting precedent, most recently affirmed by both Chief Justice John Roberts during his recent confirmation hearings, as well as by nominee Samuel Alito, who has described it as a "good law."
1972: 'Eisenstadt v. Baird'
Brought by a Boston University lecturer who was arrested for distributing contraceptive foam to students, this case expanded the privacy right established in Griswold to unmarried couples seeking contraceptives. Wrote Justice William Brennen in his 6-to-1 majority decision, "if the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."
1973: 'Roe v. Wade'
Filed on behalf of an unmarried pregnant woman from Texas, the landmark 7-to-2 decision drew on the privacy right affirmed in Griswold to invalidate anti-abortion laws then on the books in most states. Specifically, the ruling struck down a Texas state law that banned abortion, except "for the purpose of saving the life of the mother." (A lesser-known companion case, Doe v. Bolton, struck down a similar law in Georgia.) In his majority opinion, Justice Harry Blackmun wrote that the privacy right affirmed in Griswold "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." Moreover, the opinion stated that the word "person," as described in the 14th Amendment's due process clause guaranteeing life and liberty, "does not include the unborn."
The Roe decision divided a woman's pregnancy into three thirteen-week periods, or trimesters. In the first trimester, the court ruled that women need only consult with their physician before undergoing an abortion. In the second, states were given the right to regulate abortions only to ensure the woman's health, such as requiring that the procedure be performed in a hospital rather than a clinic. After that period, the court noted that the fetus is considered medically "viable" -- able to live outside the woman's womb, with or without life support. For pregnancies in final trimester, the court gave each state the right to limit abortions "in promoting its interest in the potentiality of human life," except in cases where the woman's health was in danger.
The Roe decision immediately sparked a firestorm of criticism that attacked it on both moral and constitutional grounds. Conservative legislators around the country soon responded by pushing through a wave of laws and regulations that attempted to chip away Roe.
1976: 'Planned Parenthood of Central Missouri v. Danforth'
Filed on behalf of two physicians who oversaw abortions in Missouri, this case struck down state laws requiring the consent of spouses and parents (of patients under the age of 18) before an abortion procedure. The court ruled the Missouri laws unconstitutional because they "delegated to third parties an absolute veto power which the state does not itself possess."
1976 and 1979: 'Bellotti v. Baird'
Argued twice and ruled on after its 1979 hearing, this case involved a Massachusetts law that required minor girls seeking an abortion to first obtain the consent of their parents, or a court order waiving that consent. The court's 8-to-1 decision in 1979 affirmed its previous ruling in Danforth, invalidating all state laws that require all minor girls get obtain their parents' consent before getting an abortion. It gave states latitude to establish procedures to determine whether a girl is mature enough to make the decision. But it held that a pregnant minor is "entitled in such a proceeding to show either that she is mature enough and well enough informed to make her abortion decision, in consultation with her physician, independently of her parents' wishes," or that the abortion would be in her "best interest."
1977 – 1980: 'Maher v. Roe,' 'Beal v. Doe,' 'Poelker v. Doe' and 'Harris v. McRae'
These cases (the first three decided on the same day) all addressed the issue of public funding for abortion. After the Roe decision, the issue became increasingly heated amid Republican Congressional efforts to pass a federal law prohibiting the use of Medicaid funds for abortions. Similar efforts were also made in state legislatures, which passed abortion funding limits first. Those were the first to be challenged. Among them was Maher, in which a group of indigent women claimed their due process rights were violated by a Connecticut law that limited Medicaid funding for abortions only to those deemed "medically necessary." The court said its decision marked "no retreat" from Roe. But it nonetheless backed the state restrictions on the grounds that they simply encourage -- rather than force -- childbirth over abortion, and therefore didn't undermine the women's constitutional rights.
Three years later, the court affirmed federalrestrictions on funding, which were created by the "Hyde Amendment" (named for its leading proponent, Illinois Rep. Henry Hyde). The court concluded that the federal government had no obligation to pay for abortions for indigent women.
1983: 'City of Akron v. Akron Center for Reproductive Health' and 'Planned Parenthood v. Ashcroft'
Among a variety of abortion issues addressed in these two rulings, the court weighed in on the question of whether minors must receive the consent of their parents before an abortion can take place.
In Akron, the court struck down a City of Akron, Ohio, ordinance that included a requirement that girls under the age of 15 obtain their parents' written consent at least 24 hours before the procedure. In its 6-to-3 decision, the court reaffirmed lower court rulings that allowed girls whose parents vetoed their abortion requests to demonstrate that they are sufficiently "mature" to make the decision themselves. Because the Akron ordinance didn't include such provisions, the court ruled that it unjustifiably "placed a significant obstacle in the path of a woman seeking an abortion." The court's decision also invalidated restrictions that abortions after the first trimester be performed in a hospital, that doctors first deliver a state-sanctioned speech and that fetal remains be disposed of in a "humane" way.
Decided on the same day, the court's ruling in Planned Parenthood v. Ashcroft struck down a Missouri state law requiring that abortions performed during the second trimester be performed in a hospital. But it upheld the law's provisions that minor girls obtain permission from either their parents or a judge, based on the fact that it included provisions that allowed the girl to "demonstrate that she is sufficiently mature to make the abortion decision herself or that, despite her immaturity, an abortion would be in her best interests."
1986: 'Thornburgh v. American College of Obstetricians & Gynecologists'
In this 5-to-4 decision, the court struck down a Pennsylvania law that, among other things, required women to hear a state-scripted speech designed to deter them from having an abortion. Such speeches, along with literature warning of the risks of abortion, were popular among many state legislators looking for ways to limit abortions. But in his majority opinion, Justice Harry Blackmun wrote that "the States are not free, under the guise of protecting maternal health or potential life, to intimidate women into continuing pregnancies." He further noted that the Pennsylvania speech was "nothing less than an attempt to wedge the State's message discouraging abortion into the privacy of the informed-consent dialogue between the woman and her physician."
1989: 'Webster v. Reproductive Health Services'
In Webster, the court upheld a Missouri state ban on the use of public employees and facilities for performing abortions -- effectively reversing course and demonstrating that Roe wasn't necessarily "settled law" that confined future revisions. The 5-to-4 vote found that Missouri law was in keeping with past rulings, such as McRae, which held that the "state need not commit any resources to facilitating abortions." Three of those in the court's majority -- Rehnquist, White and Kennedy -- recommended revisiting the Roe decision, while Justice Antonin Scalia even suggested that the court overturn Roe. Speaking for the minority, Justice Blackmun wrote that the ruling made clear that "a chill wind blows" for those who support Roe.
1991: 'Rust v. Sullivan'
In another blow to abortion-rights advocates, the court upheld a federal regulation barring abortion counseling and referrals in family planning clinics that receive federal funding. Known as the "gag rule," the rule was created by the Reagan administration and opposed by many in Congress, though critics were never able to muster the votes to overturn the regulations. In its 5-to-4 decision, the court ruled that the federal government was within its right to ban those who receive federal funds under the Title X of the Public Health Service Act from doing anything to "encourage, promote or advocate abortion as a method of family planning."
1992: 'Planned Parenthood v. Casey'
In another 5-to-4 vote, the court upheld all but one provision of Pennsylvania's Abortion Control Act, which among other things required: abortion patients in their first trimester of pregnancy to receive an "informed consent" booklet and wait 24 hours before receiving an abortion; and for minor girls to receive written consent from at least one parent. Although the court had struck down similar provisions in recent rulings, specifically Thornburgh and Akron, it now reasoned that only restrictions that imposed an "undue burden" on the pregnant woman would be invalidated. Using the new criteria, the court decided the threshold was breached only a by a provision that required a married woman to notify her husband before undergoing an abortion.
On that account, the court's ruling conflicted with that of an appellate court judge who had previously ruled on the case. Then a judge on the Third District Court of Appeals, Supreme Court nominee Samuel Alito wrote that because the Pensylvania law included a provision allowing a woman to forgoe notifying her husband if she believed she might suffer his abuse, it did not present an "undue burden."
By establishing what was effectively a lower standard for state involvement in abortion decisions, Casey significantly weakened Roe. That said, it also reaffirmed its basic tenet -- that abortion in some form is protected by the Constitution as a fundamental right of privacy.
2000: 'Stenberg v. Carhart'
In this 5-to-4 decision, the court struck down a Nebraska law banning so-called partial-birth abortions. Writing for the majority, Justice Stephen Breyer found that the sweeping ban failed to include an exception for cases in which the woman's health was at risk and amounted to an "undue burden" for the pregnant woman.
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