Reproductive Rights

In Bigelow v. Virginia (1975) the Court invalidated a Virginia statute that prohibited the use of abortion service advertisements. A year later the landmark case, Planned Parenthood of Central Missouri v. Danforth (1976), invalidated a statutory provision requiring unmarried minors to obtain the written consent of one parent before obtaining an abortion. The statute was invalidated because it did not allow for alternatives to parental consent such as a judicial waiver. Similarly, the Court invalidated provisions of a Missouri statute that required a married woman to obtain consent from her husband to obtain an abortion, a physician to preserve the life and health of a fetus at every stage of pregnancy, and prohibited the use of saline amniocentesis as a method of abortion.

Although, opponents to abortion lost the battle over the legality of the procedure they held out hope that access to the procedure could be curtailed by limiting public funds for abortions. In 1976 Congress passed the Hyde Amendment which banned the use of Medicaid and other federal funds for nearly all abortions. Shortly thereafter a series of Supreme Court decisions upheld the principle behind the Hyde Amendment. Maher v. Roe (1977), Beal v. Doe (1977) and Poelker v. Doe (1977), upheld the prohibition of public funds to provide abortions not deemed "medically necessary."

In 1979 the Court reaffirmed its ruling in Planned Parenthood of Central Missouri v. Danforth which held that unmarried minors cannot be required to obtain parental consent to have an abortion. In 8-1 vote, the Court invalidated a Massachusetts law requiring parental consent to an abortion for a minor in Bellotti v. Baird II. The Bellotti ruling was important for several reasons. Initially, the Court objected to states requiring parental consent for abortions because the Missouri statute did not allow for a judicial waiver to stand in lieu of written parental consent. In Bellotti the Court decided that states could not require parental consent for minors even if a statute allowed room for a judicial waiver to override the absence of consent. The judicial waiver in question would have allowed a minor to have an abortion in the absence of parental consent if she adequately demonstrated maturity in court. Four justices ruled the judicial waiver process unconstitutional because it would have required prior parental consultation. Four other justices ruled the statute unconstitutional on the grounds that the principle of allowing a third party, a parent or a judge, to determine whether a minor was mature enough to seek an abortion was flawed. However, in their decision, the Court left the door open for states to enforce parental consent for minors without violating the Constitution. In his opinion Justice Blackmun confessed that the Court was not persuaded that forcing parental consent "unconstitutionally burdened a minor's right to seek an abortion."

In H. L. v. Matheson (1981) the Court upheld a state statute that required a doctor to "notify, if possible" the parents of a minor before an abortion is performed. However, in 1983, the Court invalidated provisions of an Ohio statute which would have required parental notification and consent, doctors to make sure that minors seeking an abortion were "truly informed," and a 24 hour waiting period for minors in Akron v. Akron Center for Reproductive Health. Then, in 1990, the Court resolved the issue of parental consent by offering two opinions consistent with Blackmun's ruling in Bellotti. In Hodgson v. Minnesota the Court upheld a statute that prohibited minors from seeking an abortion unless both parents have been notified 48 hours prior to the procedure. Similarly, in Ohio v. Akron Center for Reproductive Health the Court upheld an Ohio statute that required one parent to be notified prior to administering an abortion to a minor. As a result of these rulings, over 30 states now require either parental notice or consent for a minor seeking an abortion.

In the 25 years since Roe v. Wade, abortion opponents have managed to impose legal restrictions designed to limit the frequency of the procedure. Opposition to abortion seems to be gathering momentum. In 1983, the U.S. solicitor general began urging the Supreme Court to overturn Roe v. Wade. In addition, the persuasion of the Supreme Court has been slowly drifting toward conservatism. During the Reagan and Bush administrations, both of whom opposed abortion, five Supreme Court justices were appointed (Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy, David H. Souter and Clarence Thomas).

The Court showed its conservative leaning in Webster v. Reproductive Health Services (1989). Here, the Court expanded the opportunity for states to regulate abortions and fell one vote short of overturning Roe. The Webster ruling upheld provisions of a Missouri statute that prohibited the use of public facilities or personnel to perform abortions, and required a physician to perform tests to determine the viability of a fetus beyond the 20 week mark. After this ruling, Utah, Louisiana, and the territory of Guam enacted statutes that prohibit virtually all forms of abortions.

When the Supreme Court agreed to review Planned Parenthood of Southeastern Pennsylvania v. Casey in 1992, it was essentially faced with the proposition of affirming or overturning its decision in Roe. Although the Court did not overturn Roe, it granted the states considerable latitude to regulate abortions. Most importantly, the Court's ruling in Casey permitted states to regulate abortions prior to "viability," provided that such regulations did not impose an "undue burden" on a mother seeking an abortion. Under the "undue burden test," stringent state regulations can exist within the framework of the Constitution as long as they do not place a "substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." Although the Court expanded the states regulatory capacity in Casey, it did not prohibit abortions. Since 1992, the Court has been less willing to grant full briefings and oral argument in abortion cases. Prior to the Casey ruling only three states enforced three or more restrictions on abortions. In 1998, the number of states enforcing three or more restrictions had risen to 17. Moreover, since Casey, the number of states enforcing mandatory waiting periods before obtaining an abortion rose from zero to 12 and the enactment of consent or mandatory parental notice laws for minors has increased from 17 to 30. The Court was initially liberal in its application of the right to privacy to abortion practices. However, since Roe Supreme Court decisions have generally restricted reproductive rights in the area of abortion.