The Last Abortion Clinic
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roe v. wade and beyond
A closer look at the issues behind and implications of six major Supreme Court decisions on abortion, plus a preview of the blockbuster abortion case before the Court this fall.

Roe v. Wade (1973)

The issue before the Court:
Roe v. Wade was filed on behalf of a pregnant single woman, who challenged a Texas law that permitted abortion only to save the life of the mother. At the time of the court's decision, 30 states had laws similar to the Texas law.

The Court's ruling:
In a 7-2 vote, the Court said that the Texas law violated the due process clause of the 14th Amendment. Justice Harry Blackmun, writing for the majority, argued that a woman's decision to end her pregnancy is protected by a broad right of privacy, which though not explicitly laid out in the Constitution, previously had been found by the court to exist within the First, Fourth, Fifth, Ninth and 14th Amendments, as well as the penumbras, or shadows, of the Bill of Rights.

However, the Court recognized that the state had a legitimate interest in protecting the health of the pregnant woman, and Justice Blackmun's decision laid out a framework in which varying degrees of state regulation was allowed based on the stage of the pregnancy. The decision held that the state could not prohibit abortion in the first trimester of pregnancy; in the second trimester, states could issue regulations "that are reasonably related to maternal health"; and in the final trimester, once the fetus is viable beyond the womb, the state could regulate or even prohibit abortion except in cases "where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother."

Analysis:
"When Roe was decided, the Supreme Court was a little bit ahead of where state legislatures were. [Many state legislatures] were considering abortion reform, but a majority of states hadn't yet passed abortion reform statutes. The popular opinion, of course, was pushing hard for abortion reform and abortion repeal."
-- Jack Balkin, editor What Roe v. Wade Should Have Said (Read more…)

"I think what happened in 1973 with Roe v. Wade is the Supreme Court just stopped a public discussion consensus on what America wants for abortion. I think over the last 34 years, 33 years that has continued to happen and that discussion is going on but it's going on much slower."
-- Peter Samuelson, president, Americans United for Life (Read more…)

"I think from almost day one after Roe was decided by the Supreme Court, legislators who opposed abortion came in and tried to pass restrictions."
-- Kathryn Kolbert, reproductive rights attorney (Read more…)


Doe v. Bolton (1973)

The issue before the Court:
Doe v. Bolton was filed on behalf of an indigent married woman from Georgia, who challenged that state's law prohibiting abortion except in cases when the pregnancy would endanger the woman's life or health; when the fetus would likely be born with a birth defect; or when the pregnancy resulted from rape.

The woman, who had three previous children, two of whom were in foster care and one who had been placed for adoption, had been a mental patient at the state hospital. She had been abandoned by her husband and forced to live with her indigent parents, but she and her husband had reconciled. She was denied an abortion because she did not fit any of the Georgia law's categories.

The Court's ruling:
The Court ruled on Doe on the same day as Roe v. Wade. By a vote of 7-2 it held that several restrictions within the Georgia law -- that the abortion be performed only in accredited hospitals; that the procedure be approved by a hospital abortion committee; that two doctors concur with the patient's physician that the abortion is necessary; and that the patient hold Georgia residency -- were unconstitutional because they were unduly restrictive of the patient's rights.

Doe is important because of its expansive definition of the pregnant woman's health as including "… all factors -- physical, emotional, psychological, familial, and the woman's age -- relevant to the wellbeing of the patient." The ruling is meant to be read in tandem with Roe, which says that state restrictions of abortion in the second and third trimesters must provide an exception "for the preservation of the life or health of the mother."

Analysis:
"The claim from right-to-life groups all along has been that every health exception beginning with Doe v. Bolton … has been just an enormous loophole where health was used as a loophole for anything.
-- William Saletan, author Bearing Right: How Conservatives Won the Abortion War (Read more…)

"What the Supreme Court did in Doe v. Bolton was to say that where the state piles on procedures whose basic job is to slow down the process of getting an abortion or make it more difficult for women to get an abortion, those things are unconstitutional unless they have some clear relationship to preserving the woman's health or good medical practice."
-- Jack Balkin, editor What Roe v. Wade Should Have Said (Read more…)


Harris v. McRae (1980)

The issue before the Court:
In 1976, Congress passed an amendment, known as the Hyde Amendment, which prohibited using federal Medicaid funds for abortion except to save the woman's life. A lawsuit argued that the Hyde Amendment, by denying public funding for medically necessary abortions, violated the Fifth Amendment's due process clause and the First Amendment's religion clauses (the argument was that the Hyde Amendment incorporated Catholic doctrine about when life begins).

The Court's ruling:
In a 5-4 vote, the Court ruled that the Hyde Amendment was constitutional. "… [R]egardless of whether the freedom of a woman to choose to terminate her pregnancy for health reasons lies at the core or the periphery of the due process liberty recognized in Wade, it simply does not follow that a woman's freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices," wrote Justice Potter Stewart in the majority opinion. He continued, "Nor is it irrational that Congress has authorized federal reimbursement for medically necessary services generally, but not for certain medically necessary abortions. Abortion is inherently different from other medical procedures, because no other procedure involves the purposeful termination of a potential life."

Analysis:
"That to me was the biggest loss our movement suffered, because it gave license for the government to treat women differently when they're spending their own monies."
-- Kathryn Kolbert, reproductive rights attorney (Read more…)

"We did a study published in Family Planning Perspectives. And the title of the study was, "Is Medicaid Pronatalist?" In other words, does Medicaid actually provide an incentive to have a birth as opposed to not to?"
-- Ted Joyce, economist (Read more…)


Webster v. Reproductive Health Services (1989)

The issue before the Court:
The Court was asked to rule on a 1986 Missouri law that stated in its preamble that life begins at conception and that a fetus should enjoy the same rights as other persons. The law had provisions requiring a physician to, prior to performing an abortion on pregnancies 20 weeks or more, perform "such medical examinations and tests as are necessary to make a finding of [the fetus'] gestational age, weight and lung maturity" to assess viability; prohibiting the use of state employees and facilities to perform abortions except to save the mother's life; and prohibiting public funds, employees or facilities from "encouraging or counseling" abortions not necessary to safe the mother's life.

The Court's ruling:
In a 5-4 decision, the Court upheld the Missouri law's provisions. Chief Justice William Rehnquist wrote the majority opinion. In a concurring opinion, Justice Sandra Day O'Connor suggested the use of an "undue burden" standard. She wrote, "It is clear to me that requiring the performance of examinations and tests useful to determining whether a fetus is viable, when viability is possible, and when it would not be medically imprudent to do so, does not impose an undue burden on a woman's abortion decision."

Analysis:
"What Webster did is it emboldened those who wanted to push the question. And it said to them, 'Okay, it's alright. There's four votes here on this court to overrule Roe. We can pass bans on abortion. Let's do that and get the question directly before the court.' And right after Webster, you saw 800 laws being introduced in state legislatures all across the country."
-- Kathryn Kolbert, reproductive rights attorney (Read more…)

"In 1989, in Webster v. Reproductive Health Services, the Supreme Court basically said, 'Open season.' It said, you know, 'Come on governors, legislators. Pass whatever abortion laws you want and we'll look at them each and decide whether we want to uphold them.'"
-- William Saletan, author Bearing Right: How Conservatives Won the Abortion War (Read more…)

"After Webster, it was unclear whether there was anything left to the Roe decision. And so pro-life forces in Pennsylvania thought, 'Why don't we test and see? Maybe Justice O'Connor would finally decide to overturn Roe.'"
-- Jack Balkin, editor What Roe v. Wade Should Have Said (Read more…)


Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)

Supreme Court nominee Samuel A. Alito Jr. served on the three-person Third Circuit Court of Appeals panel that heard the Casey case before it went to the Supreme Court. While agreeing with his colleagues that the other aspects of the Pennsylvania law were constitutional, he dissented from their conclusion, which was ultimately upheld by the Supreme Court, that the spousal notification provision was unconstitutional. Alito argued that the provision did not constitute an undue burden because it "does not create an 'absolute obstacle' or give a husband 'veto power,'" and that the Pennsylvania legislature had provided exceptions for women who would be adversely affected by the requirement.

Read more about how the Roberts court, including Judge Alito if he is confirmed, might rule on abortion cases.

The issue before the Court:
The Court was asked to review provisions of a Pennsylvania abortion law which included the following restrictions on first trimester abortion: 1) informed consent, including giving the woman information on fetal development and the medical risks of abortion and childbirth; 2) a 24-hour waiting period; 3) for a minor, consent of at least one parent, with a judicial bypass option; and 4) for a married woman to sign a statement that she had notified her husband of the procedure.

The Court's ruling:
By a 5-4 vote, the Court upheld all the provisions of the Pennsylvania law except spousal notification.

More significantly, while reaffirming the central holding of Roe v. Wade, the court rejected "Roe's rigid trimester framework" and changed the standard of review for laws regulating abortion to the "undue burden" standard proposed by Justice O'Connor in Webster. The majority opinion, written jointly by Justice O'Connor, Justice David Souter, and Justice Anthony Kennedy, explained, "An undue burden exists, and therefore a law is invalid, if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability."

Analysis:
"What Casey did was not just simply retain Roe or what it called 'the central holding' of Roe, it also signaled to state legislatures around the country that they could impose greater restrictions on abortion than the Supreme Court had been willing to uphold before. And states responded."
-- Jack Balkin, editor What Roe v. Wade Should Have Said (Read more…)

"After Casey it became very clear the Supreme Court is just not going to reverse Roe. But with Casey they said, 'We'll open it up for state regulation. We understand there are other interests at stake, that the state has an interest in protecting the women and in the life of the unborn child.' And so since then Americans United for Life and other groups have been working very incrementally trying to identify opportunities where we can protect the woman within what are the constitutional bounds today of her right to an abortion."
-- Peter Samuelson, president, Americans United for Life (Read more…)

"The Court is no longer striking down laws just because they're sort of discriminating against abortion as a medical procedure. You have to show that these laws impose an undue burden on women. And that is an extremely hard standard to meet."
-- Bonnie Scott-Jones, lawyer, Center for Reproductive Rights (Read more…)


Stenberg v. Carhart (2000)

The issue before the Court:
The law at issue in this case was a Nebraska statute banning partial-birth abortions in all cases except where the mother's life was at stake. Dr. Leroy Carhart, a Nebraska doctor who performed abortions, brought the suit, arguing the law was vague and placed an undue burden on himself and his female patients.

The Court's ruling:
The Court ruled 5-4 that the Nebraska law was unconstitutional for two reasons: because it did not have an exception for the health of the mother and because it placed an undue burden on a woman's ability to obtain an abortion. "In sum, using this law some present prosecutors and future Attorneys General may choose to pursue physicians who use D&E procedures, the most commonly used method for performing previability second trimester abortions," wrote Justice Stephen Breyer in the majority opinion. "All those who perform abortion procedures using that method must fear prosecution, conviction, and imprisonment. The result is an undue burden upon a woman's right to make an abortion decision. We must consequently find the statute unconstitutional."

Analysis:
"Congress passed bans on partial-birth abortion during the Clinton years, and Bill Clinton vetoed them. Then Congress passed such a ban again, during George [W.] Bush's administration, and he signed it. That case is [now] going in front of the Supreme Court."
-- Jack Balkin, editor What Roe v. Wade Should Have Said (Read more…)

"Just this summer, a federal appeals court struck down the federal partial-birth abortion ban, and in so doing, it said explicitly in its ruling, "Because the act does not contain a health exception, it is unconstitutional." Period. OK. So pro-lifers could go back and put in a health exception, or they could do what they've tried to do, which is to gamble that there will be a change on the Supreme Court and that the new justice won't care about the health exception."
-- William Saletan, author Bearing Right: How Conservatives Won the Abortion War (Read more…)


Ayotte v. New Hampshire (2005)

Read the petitioner's brief and the respondents' brief.

The issue before the Court:
On Nov. 30, 2005, the Court is expected to hear arguments on this case, challenging a New Hampshire law requiring abortion providers to notify a minor's parents at least 48 hours before performing the procedure.

There are two questions before the Court in the Ayotte case. The first is whether the law is unconstitutional because the parental notification statue does not provide a health exemption; under the law, the only way a doctor can avoid the 48-hour waiting period after notifying the parents is if the girl's death is imminent.

Ayotte's second question involves changing the standard of review for abortion cases. Planned Parenthood v. Casey set the "undue burden" standard of review; a law is unconstitutional if it places an undue burden on a woman seeking an abortion. In the Ayotte case, the pro-life side is arguing that even if the law is unconstitutional for some minors, the law should stay on the books and exceptions should be made on a case-by-case basis -- meaning that women would have to individually appear before the court and explain why the law is unconstitutional for them.

Analysis:
"I think the fact that this parental involvement law comes out of New Hampshire just shows how broadly received, how many different states that you might not expect have looked at this and said, 'These are the types of things we want to do because our parents want our girls protected.'"
-- Peter Samuelson, president, Americans United for Life (Read more…)

"My guess is that if the pro-choicers lose the health exception in the context of parental notification you can pretty much look forward to the federal partial birth abortion ban being upheld as constitutional by the future Supreme Court."
-- William Saletan, author Bearing Right: How Conservatives Won the Abortion War (Read more…)

"In this case, the Supreme Court is going to consider a different rule. And here's how this rule would work: You go to court, and you say, 'This law causes an undue burden on a significant number of women.' The court says instead, 'Well, as long as there's some women for whom it's constitutional, as long as there are some women for whom the law doesn't violate their rights, the law stays in place.'"
-- Jack Balkin, editor What Roe v. Wade Should Have Said (Read more…)

Editor's Note: On Jan. 18, 2006, the Supreme Court issued its ruling in the case of Ayotte v. Planned Parenthood of Northern New England and found unanimously that a lower court was wrong to strike down a New Hampshire abortion law requiring parental notice and a 48-hour waiting period before a minor could obtain an abortion because did not provide an exception if the girl's health was in danger. In its ruling, the Supreme Court agreed with the lower court that the law needed such a health exception, but it disagreed that nullifying the entire law was the best solution.

In her published opinion, Justice Sandra Day O'Connor wrote that to do away with the law because it lacked the exception was "the most blunt remedy" to the problem, and she asked the lower court to consider adding an emergency health exception to the statute or to render the law unenforceable in emergency situations. The case has now been remitted to the Federal District Court of Appeals for the First Circuit, which must reconsider the case.

Also under consideration in this case was the Court's standard of review regarding abortion laws, crafted by O'Connor in the 2000 case Stenberg v. Carhart
and used to determine if a law places an "undue burden" on a woman seeking an abortion. However, the Court chose to sidestep the issue of the "undue burden" standard and instead issued a narrow ruling affecting only the lack of a health exception in the specific case at hand.

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posted jan. 19, 2006

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