Abortion Rights

Black's Law Dictionary defines an abortion as “the artificial or spontaneous termination of a pregnancy before the embryo or foetus can survive on its own outside a woman's uterus.” Thus it is assumed that the fetus dies as a result of an abortion. More important, when the termination of pregnancy is “artificial,” those who conduct an abortion necessarily kill a fetus. Under what circumstances, if any, is this constitutionally permissible? The United States Supreme Court first decided this question in 1973 in Roe v. Wade, 410 U.S. 113 ( 1973 ) ( first argued in 1971 ). However, the issue of abortion had a rich history in state law and policy long before Roe.

If abortions took place without attracting much political interest in the first half of the nineteenth century, by the end of the century virtually every state had barred most abortions and declared them to be criminal offenses. James C. Mohr ( 1978 ) examines this historical transformation. On the eve of the Civil War, the fledgling American Medical Association ( founded in 1847 ) became a vehicle through which physicians waged an aggressive crusade against abortion. Organized opponents pressed legislatures, sought to erode public tolerance for abortions prior to “quickening” (the stage of gestation when the pregnant woman can feel motions of the fetus), and raised concerns that white Protestant women were having abortions while other women were outbreeding native stock Americans. As they sought to professionalize the practice of medicine, physicians insisted that professional ethics were inconsistent with public tolerance of abortions. Many states revised their laws to impose restrictions during the period from 1860 to 1880, and during the final decades of the century most of the rest of the states passed unambiguous antiabortion laws. Beginning in the 1880s, state courts were more willing to convict women and abortion providers under these new statutes. A number of these antiabortion laws remained in place until the 1960s.

In Griswold v. Connecticut, 381 U.S. 479 ( 1965 ), the Supreme Court ruled that the due process clause of the Fourteenth Amendment guaranteed a fundamental right of privacy to be free from government interference when married couples choose to use contraceptives, a ruling later extended to nonmarried persons in Eisenstadt v. Baird, 405 U.S. 438 ( 1972 ), on the grounds that the law's distinction between single and married persons violates, under rational basis review, the Fourteenth Amendment equal protection clause. Roe extended Griswold's right of privacy to a woman to choose an abortion. However, the Court noted that when a woman is pregnant, her “privacy is not sole” because she carries what the Court termed “potential life.” The Court also held that the Fourteenth Amendment designated only born persons as having constitutional rights, and thus, although the state had a legitimate interest in protecting “potential life,” the fetus did not have the protection of the Constitution since it was not yet born.

ROE'S BALANCING ACT

The Court's dilemma from the very beginning in Roe was balancing the state's interest in protecting potential life with the privacy rights of a woman to choose what to do with her own body in the context of reproductive choices. In Roe the Court decided that, in the first trimester of pregnancy, the state had no compelling interest to interfere with a woman's right to choose an abortion, if her doctor assented. The danger to women's health was greater by carrying a fetus to term, and women's health was the only warrant for state interference. In the second trimester, the state had some greater interest in maternal health, though none in fetal health prior to viability. Thus, states could regulate to protect women but could not prohibit abortion. In the third trimester, however, the state not only had an interest in protecting women's health, but also the state's interest in protecting potential life was great enough that the state could regulate and even prohibit abortion—so long as abortion remained permissible to preserve the life or health of the mother. The compelling state interest standard that was clearly operative in the first trimester was strict scrutiny—usually fatal in fact to efforts at state regulation and consistent with the expectation that the right to seek an abortion is a fundamental right.

The Supreme Court struck down state attempts to curtail access to abortion, using the Roe framework through the case of Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 ( 1986 ). However, when Justice Sandra Day O'Connor, the first woman to sit on the Court, participated in her first abortion decision, Akron v. Akron Center for Reproductive Health, 462 U.S. 416 ( 1983 ), she penned a dissent from the majority's decision to strike down several restrictions, including a twenty-four-hour waiting period, arguing that the proper standard should be whether regulations are “unduly burdensome” —a standard that, she said, should be applied without regard to the stage of the pregnancy. This position was a foreshadowing of things to come.

One of the major tactics used by abortion rights opponents has been to restrict access to an abortion. This is effective because the due process clause guarantees freedom from government interference only when making choices about one's own life, including whether to use contraceptives or whether to choose an abortion. It does not require the state to fund a person's choices.

Thus when the right to abortion funding came before the Court in the late 1980s, it upheld state and federal restrictions on the use of public funds for nontherapeutic and even therapeutic abortions. The right to an abortion as the right to make a choice without state interference, the majority reasoned, remained intact, but policy makers were free to express their preference for live childbirth over abortion by refusing to fund that choice ( Maher v. Roe, 432 U.S. 464 [1977]; Harris v. McRae, 448 U.S. 297 [1980] ). In Webster v. Reproductive Health Services, 492 U.S. 490 ( 1989 ), the Court reiterated that the due process clause confers no affirmative right to government aid and, further, that a state could prohibit the performance of abortions by public employees or in public facilities unless necessary to save the life of the woman. Webster also allowed states to require testing for fetal viability at twenty weeks of pregnancy and left standing as irrelevant to the case Missouri's statutory declaration that life begins at conception.

THE NEW STANDARD SET BY CASEY

The trimester framework in Roe, however, survived in name for a few more years, until Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 ( 1992 ). In 1992 the “undue burden” ( on a woman's right to choose ) test that involved balancing women's interests and state interests throughout a pregnancy became the new standard under which abortion regulations would be judged, and all but one of Pennsylvania's restrictions on abortion were upheld under this relaxed standard of review. However, the Casey majority also generated new language that recognized women's changing roles in society and argued that decisions about whether to bear or beget a child are matters “involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, [and] are central to the liberty protected by the Fourteenth Amendment” (505 U.S. at 851).

The Roe prohibition on state interference was further eroded by later Court decisions permitting states and the federal government to bar a procedure, commonly referred to as “partial birth” abortion (properly, dilation and curettage), that doctors claimed was sometimes medically necessary but that the Court determined to be barbaric and never essential to save a mother's life ( Gonzales v. Carhart, 550 U.S. 124 [2007] ).

Since this decision, a number of states have passed laws placing additional restrictions on abortion, including bans on partial birth abortion. Following the Casey decision, however, spousal notification requirements remain presumptively invalid. Some states have amended their laws to remove exceptions to protect a woman's health, long considered essential under Roe; other states require that, prior to an abortion, a woman undergo ultrasound procedures and confront resultant fetal images and heartbeat sounds. In some states, women are required to undergo counseling that includes efforts to discourage abortion or counseling about fetal pain or negative psychological effects of abortion; some must face waiting periods that can exceed twenty-four hours. Judicial bypass options for minors seeking abortions without parental notification are no longer routinely provided. In the name of protecting maternal health, some states have passed measures requiring that clinic abortion providers have admitting privileges at local hospitals, or that facilities conform to standards imposed on hospitals or ambulatory surgical centers. States have passed laws requiring parental notification, fetal viability testing at twenty weeks, and requiring that only licensed physicians perform abortion (and sometimes that a second physician be in attendance). In some states, public facilities are barred from performing abortions, private insurers licensed by the state are barred from paying for abortions, public funds are denied for most if not all abortions, and state-run healthcare exchanges under the Affordable Care Act are forbidden from offering abortion. A number of the newer restrictions have not been considered by the nation's highest court.

MAJOR OBJECTIONS TO ABORTION RIGHTS

The major objection to abortion rights focuses on what the fetus “is,” specifically the claim that it is a human being entitled to the same rights and state protection as a born person. To some degree, this objection is substantiated in the Roe decision. As Justice Harry Blackmun emphasized in Roe, abortion rights based on the due process clause depend on what the fetus “is.” As he stated in the majority opinion, if “personhood is established, the appellant's [Roe's] case, of course collapses, for the fetus’ right to life would then be guaranteed specifically by the [Fourteenth] Amendment” ( 410 U.S. at 156–57 ). Thus, although the Constitution itself does not confer personhood status on the fetus, since 1973 abortion opponents have sought legislation at the state and national levels that recognizes the fetus—and even embryos—as deserving of all of the rights of a born person, in some instances referring to fetuses as “little citizens.”

THE SELF-DEFENSE ARGUMENT FOR ABORTION RIGHTS

In Roe the Court recognized that when a woman is pregnant, her “privacy is not sole.” What the Court has yet to recognize fully is the way the fetus radically and pervasively transforms a woman's body when rendering it “not sole.” For example, hormonal levels change dramatically, all of a woman's blood supply circulates for use by the fetus, and a new organ (the placenta) grows in a woman's uterus to support the fetus. A woman's liberty to be left alone is also negated for nine months while pregnant. Therefore, some argue, the key to abortion rights is not merely a woman's right to choose what to do with her own body, but also her right to consent to the changes in her body resulting from the fetus. According to this argument, a woman's right to selfdefense should be extended to protect herself from nonconsensual transformations of her body and liberty by the fetus.

A woman's consent to sex or even consent to give birth to a child does not include the assumption that a person has given consent to have her body changed by someone or something else. In the case of born children, the parental duty to provide care includes the responsibility for feeding, clothing, and educating a child, but does not include requirements that a parent's bodily integrity be violated to satisfy a child's wellbeing. No state in the country requires a parent to donate even a pint of blood to a child once that child is born, even if a child's life requires that donation, and every state in the country supports people's right to use deadly force in self-defense when their bodily integrity and/or liberty is not only actually compromised but merely threatened.




A pro-choice group demonstrates for abortion rights outside of a Planned Parenthood clinic in Houston, Texas, in 1992.





A pro-choice group demonstrates for abortion rights outside of a Planned Parenthood clinic in Houston, Texas, in 1992.
© GREG SMITH/HISTORICAL/CORBIS
1971 ). She argues that women are not morally required to be “good Samaritans” by giving their bodies to the fetus because the demand on women's bodies and liberty when pregnant is too great. Donald Regan ( 1979 ) maintains the constitutional right to be a “bad Samaritan,” thereby affirming women's right to choose to refuse to be pregnant by obtaining an abortion.

Eileen McDonagh ( 2007 ) extends the constitutional foundations of the self-defense justification for abortion rights to include the right to public funding by arguing that when women do not consent to pregnancy, they are “captive Samaritans.” The due process clause of the Fourteenth Amendment does not require the state to act to free a woman from this captive status by obtaining an abortion. However, the fundamental rights prong of the Fourteenth Amendment's equal protection clause does require state action because, when state policies involve a fundamental right, such as bodily integrity and liberty, the state is required to treat people who are similarly situated in a similar way. McDonagh maintains that a woman who does not consent to pregnancy is similarly situated with people who are experiencing an injury resulting from severe, nonconsensual intrusion of their bodily integrity and liberty.

In McDonagh's argument, though the fetus lacks mens rea, that is, conscious intentions, if a woman does not consent to be pregnant, its nonconsensual intrusion is an injury nonetheless. Thus, if the fetus is a person, the woman suffering from a nonconsensual pregnancy is similarly situated with a person suffering from injury caused by a mentally incompetent person; if the fetus is a state-protected nonperson, then the woman is similarly situated with a person suffering an injury from a state-protected nonperson, such as wildlife in a state park. In either case, because the government does act to protect people from such injuries, the equal protection clause requires the government to offer similar protection to women who are suffering from nonconsensual transformations of their bodies resulting from a fetus.

POLITICAL PARTIES

The two major political party platforms (available at the website of the American Presidency Project) take starkly different positions on abortion, fetal personhood, and public funding for healthcare that includes abortion. Republicans first called for a constitutional amendment to protect the unborn child's right to life in the 1980 platform, and subsequent platforms only made their opposition to abortion clearer. In 1984 the party stated its opposition to the use of public funding for abortion and its intention to strip funding from organizations advocating or supporting abortion, calling for the appointment of judges who respect the sanctity of human life. In 1988 the party stipulated that the Fourteenth Amendment extended to unborn children, and that “the unborn child has a fundamental individual right to life which cannot be infringed.” By 1996 the Republican platform also asserted a moral obligation to assist, not penalize, women challenged by unplanned pregnancies. Republicans likewise voiced opposition to federal funding of healthcare that includes abortion coverage, to funding for embryonic stem cell research, and to partial birth abortion ( 2012 ). The platforms have remained silent about exceptions to abortion bans in cases of rape, incest, or to safeguard maternal life.

The Democratic Party platforms of 1976 and 1980 stated that a constitutional amendment to overturn Roe was undesirable. In 1988 the platform added that “the fundamental right of reproductive choice should be guaranteed regardless of ability to pay,” a position reasserted in most of the platforms. From 1992 through 2004, the Democratic platform deemed abortion a fundamental liberty while advocating that abortion be safe, legal, but rare. The platform of 2008 added strong support for “access to comprehensive affordable family planning services and age-appropriate sex education which empower people to make informed choices and live healthy lives.” Democrats were well aware of the emerging gender gap that led women to vote disproportionately for Democrats, and the prochoice plank became increasingly strong and unequivocal over time.

An additional battleground separating the parties in the 2010s concerned religious objections to providing contraceptives by pharmacists, and by employers who are not tax-exempt religious organizations. ( Burwell v. Hobby Lobby Stores, 573 U.S. ___ [2014] allows some closely held, commercial, for-profit corporations to refuse to provide health insurance coverage of contraceptives to their employees on the ground that this represents a substantial burden on the owners’ free exercise of religion .)

SOCIAL MOVEMENTS

Antiabortion activists, pro-life, or right-to-life social movements also took shape in the years before Roe. These groups sought to proscribe or seriously limit the right to an abortion. The National Right to Life Committee was established in 1968, and in the aftermath of the Roe decision religious organizations, such as the Catholic Church, the Christian Right, Southern Baptists, and conservative Protestants became increasingly involved in pro-life activities ( Munson 2009 ). Thus, although the Court's decision in Roe was largely hailed as a victory for the pro-choice movement, it led to extensive mobilization by antiabortion forces who found sympathetic state legislatures to pass new restrictions that challenged Roe at its boundaries. Most of these restrictions were upheld by the Court after 1977.

CONCLUSION

The abortion issue is highly likely to remain contested and complicated morally, politically, and constitutionally. As the Supreme Court appears receptive to further state and federal restrictions on abortion, conventional pro-choice framings are under attack and access to legal abortion is shrinking. Political parties are sharply divided over abortion and disagree about whose fundamental rights and liberties are at stake. Although the Casey decision appeared to recognize that a woman's ability to choose to bear a child is an essential aspect of her liberty and her equal citizenship, the foundation for a clear right for women's consent to become or not become mothers has yet to be established in the United States.

SEE ALSO Fourteenth Amendment ; Gender Discrimination ; Social Movements ; Substantive Due Process ; Unenumerated Rights ; Women's Rights Movements .

BIBLIOGRAPHY

American Presidency Project. “Political Party Platforms of Parties Receiving Electoral Votes: 1840–2012.” http://www.presidency.ucsb.edu/platforms.php .

Ginsburg, Ruth Bader. “Some Thoughts on Autonomy and Quality in Relation to Roe v. Wade.North Carolina Law Review 63, no. 2 (1985): 375–86.

Greenhouse, Linda, and Reva B. Siegel. Before Roe v. Wade: Voices that Shaped the Abortion Debate Before the Supreme Court's Ruling. Yale Law School. http://documents.law.yale.edu/sites/default/files/BeforeRoe2ndEd_1.pdf .

Koppelman, Andrew. “Forced Labor: A Thirteenth Amendment Defense of Abortion.” Northwestern University Law Review 84, no. 2 (1990): 480–535.

MacKinnon, Catharine A. “Privacy v. Equality: Beyond Roe v. Wade.” In Feminism Unmodified: Discourses on Life and Law. Cambridge, MA: Harvard University Press, 1987.

McDonagh, Eileen. “The Next Step after Roe: Using Fundamental Rights, Equal Protection Analysis to Nullify Restrictive State-Level Abortion Legislation.” Emory Law Review 56, no. 4 (2007): 1173–214.

Mohr, James C. Abortion in America: The Origins and Evolution of National Policy, 1800–1900. Oxford, UK and New York: Oxford University Press, 1978.

Munson, Ziad W. The Making of Pro-Life Activists: How Social Movement Mobilization Works. Chicago: University of Chicago Press, 2008.

Regan, Donald H. “Rewriting Roe v. Wade.Michigan Law Review 77, no. 7 (1979): 1569–646.

Staggenborg, Suzanne. The Pro-Choice Movement: Organization and Activism in the Abortion Conflict. New York: Oxford University Press, 1991.

Thomson, Judith Jarvis. “A Defense of Abortion.” Philosophy and Public Affairs 1, no. 1 (1971): 47–66. Reprinted in Intervention and Reflection: Basic Issues in Medical Ethics, edited by Ronald Munson. 9th ed. Boston: Wadsworth, Cengage Learning, 2012.

Eileen McDonagh
Northeastern University

Carol Nackenoff
Swarthmore College