A Legal History of Abortion in America Current Issues - LHS

Definitions Abortion – induced termination of pregnancy Due Process – administering justice according to est. rules and principles Right to Privacy – non-constitutional legal right to be free of unsanctioned intrusion Federal Court System Trimester – one third of length of pregnancy (13 wks)

Pre 1973 Abortion Law Comstock Law (1873) Federal law enacted prohibiting "obscene, lewd, and/or lascivious" materials through the US mail (ex.: pornography) Also included materials concerning education about contraceptives or abortion Also made illegal sending actual contraceptives or abortion equipment through mail

Pre 1973 Abortion Law Generally, abortions themselves were a matter of state, not federal law Each state legislature passed its own laws regarding abortion Issues included legality, availability, consent required, minimum age requirements By 1910, all but one state had criminalized abortions except where necessary, in MD’s opinion, to save mother’s life Result = Illegal, or “back alley” abortions

Pre-1973 Abortion Law Abortion laws in the United States prior to Roe v. Wade    => Illegal    => Legal in cases of rape. =>   Legal in cases of danger to woman's health. => Legal in cases of danger to woman's health, rape or incest, or likely damaged fetus. => Legal upon request.

Pre 1973 Abortion Law Types of Illegal abortions Self induced abortions through “natural” methods Abortionists who might have had little medical training Unsanitary conditions (home or dirty clinic) Thousands of women were treated in hospitals after illegal abortion performed; many died from their injuries Private physicians also performed abortions Expensive, exclusive option

Pre 1973 Abortion Law Liberalization of abortion law 1936: Federal appeals court ruled that gov’t couldn’t interfere with doctor prescribed contraceptives Griswold v. CT (1965): USSC ruled contraceptives could be bought by married couples w/o restriction Eisenstadt v. Baird (1972): extended contraceptive legality to unmarried couples Estelle Griswold

Roe v. Wade (1973) Case arose in Texas TX law made abortions illegal except in case of rape, incest “Jane Roe” became pregnant and sought an abortion District court issued an injunction (a legal order saying “STOP!”) against the TX law Wade, the DA, filed an appeal

Roe v. Wade (1973) Case filed in 1970; due to length of case, baby born and put up for adoption USSC heard case and issued its 7-2 decision in January 1973

Roe v. Wade decision Majority found women had a “fundamental right” to an abortion Individuals have personal liberty, based on 14th amendment EP / DP clauses Gov’t should not interfere with a person’s personal liberty “Personal liberty” included woman’s right to an abortion

Roe v. Wade USSC also found state had important interests in regulating abortions Interest in reducing risky illegal abortion procedure Interest in protecting life of unborn fetus BUT USSC ruled that privacy right of woman outweighed states’ interest in regulating abortion, requiring balancing of interests

Roe v. Wade Allowable regulation of abortions 1st trimester: no restrictions allowed on abortions 2nd trimester: state may only restrict abortion in ways related to health of mother 3rd trimester: state can choose to restrict or forbid abortion to protect life of fetus

Effect of Roe v. Wade Effectively created right to abortion on demand, in USA Reported abortions since 1973, in America, total 50,766,331, according to Planned Parenthood Number of abortions, by year

Post Roe v. Wade Evolving abortion law Women don’t need consent of spouses or parents, if over 18 years, to have an abortion (1976) Minor girls don’t need parental consent to have an abortion, if they can show they are mature enough to make decision (1978) No obligation for public funding of abortions (1980)

Post Roe v. Wade Evolving abortion law 2nd trimester abortions do not have to be performed in a hospital (clinic ok) (1983) States may not verbally discourage women from having an abortion (script read at clinic) (1986) States may not encourage women to seek an abortion (1991)

Casey v. Planned Parenthood (1992) Major shift in abortion law State law required 24 hour waiting period and pro life pamphlet for abortions in 1st trimester Minor girls required consent of at least one parent Represented a significant weakening of Roe v. Wade