The Issue of Abortion

Many of the most divisive topics tend to relate to social issues. At the top of the list is abortion. In American history, this wasn’t always the hot button issue it is today. From the colonial period to the middle of the 19th century, abortions were frequently performed without much objection. In the late 1800s, however, a cultural shift took place, and by 1910, all states but one had criminalized abortion (except in life-saving circumstances). A landmark 1973 Supreme Court decision in Roe v Wade held that these abortion-restricting laws that had become so common were unconstitutional. Although the court has revisited the issue many times since, the debate rages on. Was there really a constitutional basis for Roe? Is further judicial clarification needed? The answer to the second query is apparently “yes,” as the Supreme Court recently voted to hear another case challenging an abortion law nearly 50 years after Roe was decided. 

Roe v. Wade

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In 1854, the State of Texas enacted a criminal abortion statute, which quickly became the statute in question in Roe. The law made it illegal to “procure an abortion,” except “an abortion procured or attempted by medical advice for the purpose of saving the life of the mother.” This was nothing unique; as former Supreme Court Justice Harry Blackmun noted in the opinion of the court, “similar statutes [were] in existence in a majority of states.” 

In 1970, Norma McCorvey, a single woman from Dallas County, Texas, challenged the statute in federal court. Specifically, she sought an injunction preventing the District Attorney of Dallas County from enforcing the statute, as she wished to obtain an abortion that was not medically nessary, and couldn’t afford to travel to a jurisdiction where the procedure would be legal. The case eventually made its way to the Supreme Court. 

By a 7-2 vote, the court held that a woman possessed a qualified right to an abortion that came from her consitutional right to privacy “founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action.” Thus, state laws criminalizing abortion with the exception of saving the mother’s life were unconstitutional. The laws were held to the strict scrutiny test that the Court had previously established for rights considered “fundamental,” including abortion (stemming from the established right to privacy). Therefore, the only way that abortion could be restricted would be to advance a “compelling state interest.” In the case of abortion, there were two compelling state interests: protecting the health of the mother and preserving the potential for human life. The court offered guidance — which roughly corresponded to each pregnancy trimester — on how to balance the somewhat conflicting state interests.

1. First trimester: decision on whether and how to have an abortion left to the judgment of the physician 
2. Pre-viability: regulation of abortion allowed “in ways that are reasonably related to maternal health” 
3. Post-viability (24-28 weeks after conception): regulation or prohibition of abortion allowed in promoting the interest of the potential for human life, except when medically necessary 

Many legal scholars question the precise constitutional basis for the right to privacy, and therefore abortion. If the connection between “Fourteenth Amendment,” “personal liberty and restrictions upon state action,” and “privacy” isn’t obvious to you, you’re not alone. 

Planned Parenthood v. Casey

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Fast forward to the late 1980s, when the State of Pennsylvania amended its Abortion Control Act of 1982. The act required informed consent, wherein the patient had to be given certain specific information 24 hours before the abortion procedure. The law also made parental consent a requirement for minors. Finally, it put in place a requirement for the patient to notify her husband that she intended to abort the fetus. 

A group of clinics and a physician challenged the statute in a lawsuit, and the case eventually made its way to the Supreme Court. At Casey’s core was Roe v. Wade, and whether it should have been overruled. The United States government even got involved as an amicus curiae, asking the court to overrule Roe. 

The Court upheld Roe but took the important step of introducing and applying a new “undue burden” standard. If a pre-viability abortion regulation has the purpose or effect of putting a “substantial obstacle in the path of a woman seeking an abortion,” it fails the “undue burden” test. Applying the test, the court found that the only provision at issue in the case that failed was the husband notification requirement, and that was declared unconstitutional. However, the court was again vague when referencing the constitutional bases of the rights in question. 

Dobbs v. Jackson Women’s Health 

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In 2018, a Mississippi bill was signed into law making it illegal for a doctor to perform an abortion more than 15 weeks after conception, except in medically necessary circumstances. The law was quickly challenged in court by the Jackson Women’s Health Organization, and the case eventually made its way to the Supreme Court. In the petition for writ of certiorari, three questions were posed by the petitioner. However, the court decided to address only one of the questions, and it happens to be the broadest one: “whether all pre-viability restrictions on elective abortions are unconstitutional.” This suggests that the scope of the holding in Dobbs will be wide and, however it is decided, controversial. 

Take careful note of the language of the question to be answered by the court, specifically the word “restrictions.” The court has made clear that pre-viability regulation of abortion is constitutional in both Roe and Casey. In Roe, the holding was that in the second trimester (which includes the fifteen week mark), regulations are permissible to promote the “compelling state interest” of the health of the mother. In Casey, two of the three provisions of the act in question were upheld, and those were both pre-viability regulations. But when evaluating pre-viability restrictions, the court must consider the fact that both Roe and Casey seem to be inconsistent with these restrictions. The opinion in Roe makes a clear distinction between pre- and post-viability, holding that pre-viability regulations are only constitutional when they govern the second trimester and are reasonably related to maternal health. A complete restriction on most second trimester abortions doesn’t appear to be in the interest of maternal health. And the opinion in Casey brings up the “undue burden” test, which pre-viability restrictions undoubtedly fail. 

The court would have a hard time holding that some pre-viability restrictions on elective abortions are constitutional without overruling Roe and Casey. Among all members of the court, Justice Clarence Thomas has made the most clear that he would have no problem with this. He recently said that Roe doesn’t have a “shred” of constitutional support, and that “our abortion precedents are grievously wrong and should be overruled.” Justices Elena Kagan, Sonia Sotomayor, and Stephen Breyer are clearly committed to preserving abortion precedent. But that leaves five justices at least somewhat unaccounted for, and a lot is up in the air. All five have expressed their skepticism for the constitutional foundations of the landmark cases but have deliberately avoided extensive dialogue about the importance of their precedent or how they may rule in abortion cases in front of them. 

So expect an important decision on abortion soon, and with it, a lot of disagreement. Buckle your seatbelts.