Abortion

Among the first abortion regulations to be enacted after Roe v. Wade were requirements for the informed consent of the woman seeking an abortion. Although informed consent laws vary from jurisdiction to jurisdiction, it can generally be given only after a woman receives certain information from a doctor, medical professional, or counselor. This information can include the nature and risks of the abortion procedure, the risk of carrying the pregnancy to term, the alternatives to abortion, the probable age of the fetus, and specific government aid available for care of a child. Related to this issue are other types of consent—including parental and spousal consent—that states have sought to require before an abortion can be performed.

In 1976, the Court reviewed a Missouri statute requiring that the following provisions be met for an abortion to be performed: that a woman in the first twelve weeks of her pregnancy give written consent; that a wife obtain her husband's consent; and that a minor obtain her parents' consent, unless a medical necessity exists (Mo. Ann. Stat. § 188.010 et seq.). The statute also required that physicians and clinics performing abortions keep careful records of their procedures and that criminal and civil liability be imposed upon a physician who failed to observe standards of professional care in performing abortions. Planned Parenthood, a family planning organization, initiated a lawsuit to declare the law unconstitutional. The Supreme Court, in Planned Parenthood v. Danforth, 428 U.S. 52, 96 S. Ct. 2831, 49 L. Ed. 2d 788 (1976), upheld the requirement that the woman give written consent in the first trimester, as well as the requirement that records of abortion procedures be kept. However, the Court ruled that a woman need not inform her husband of an abortion performed in the first trimester, because the state may not interfere in the woman's private decision concerning her pregnancy during that period. For the same reason, the Court struck down the law requiring a minor to obtain parental consent in the first trimester.

The Court clarified its position on parental consent in later rulings. In Bellotti v. Baird, 443 U.S. 622, 99 S. Ct. 3035, 61 L. Ed. 2d 797 (1979), it struck down a state law that required the consent of both parents or judicial approval—commonly called judicial bypass—before an unmarried minor could obtain an abortion. The Court found the law unconstitutional because it gave third parties—the child's parents or the court—absolute VETO power over the minor's ability to choose abortion, regardless of her best interests, maturity, or ability to make informed decisions. In H.L. v. Matheson, 450 U.S. 398, 101S. Ct. 1164, 67 L. Ed. 2d 388 (1981), the Court upheld a Utah statute requiring that a physician notify the parents of a minor before performing an abortion on her (Utah Code Ann. § 76-7-304). Since the law required only notification rather than consent, the Court reasoned that it did not give any party veto power over the minor's decision. In Hodgson v. Minnesota, 497 U.S. 417, 110 S. Ct. 2926, 11 L. Ed. 2d 344 (1990), the Court upheld a parental notification statute because the statute's provision for judicial bypass took into account the best interests of the minor, her maturity, and her ability to make an informed decision.

In 1982, Pennsylvania passed the Abortion Control Act, which required that the woman give "voluntary and informed" consent after hearing a number of statements, including declarations of the following: the "fact that there may be detrimental physical and psychological effects" to the abortion; the particular medical risks associated with the abortion method to be employed; the probable gestational age of the fetus; the "fact that medical assistance benefits may be available" for prenatal care and childbirth; and the "fact that the father is liable to assist" in CHILD SUPPORT. The law also required a physician to report the woman's age, race, marital status, and number of previous pregnancies; the probable gestational age of the fetus; the method of payment for the abortion; and the basis of determination that "a child is not viable."

When the Pennsylvania law came before the Court in the 1986 case Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 106 S. Ct. 2169, 90 L. Ed. 2d 779, the Reagan administration's Justice Department specifically asked the Court to overturn Roe. In its brief, the department argued that the Court should "abandon" Roe because its textual and historical basis was "so far flawed" as to be a source of instability in the law. Instead, the brief urged, the Court should leave the state legislatures free to permit or prohibit abortion as they wish. However, by a narrow (5–4) vote the Court found all the provisions of Pennsylvania's Abortion Control Act to be unconstitutional, thereby reaffirming its previous decisions upholding a woman's constitutional right to abortion. "The states," wrote Justice Blackmun in the Court's opinion, "are not free, under the guise of protecting maternal health or potential life, to intimidate women into continuing pregnancies." Pennsylvania defended itself by claiming that its procedures gave the pregnant woman information that would better inform her decision regarding abortion. Blackmun, although he agreed in principle with the idea of informed consent, found that the Pennsylvania procedures were designed not so much to inform as to encourage a woman to withhold her consent to an abortion.

The narrow margin of the Court's decision encouraged the anti-abortion movement. By the time the Court reached its next major abortion decision, in 1992—Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674—many expected it to finally reverse Roe. Again, it did not. Casey, the most important abortion decision since Roe, concerned amendments to the same Pennsylvania Abortion Control Act of 1982. The amendments prohibited abortions after twenty-four weeks except to save the woman's life or to prevent substantial and irreversible impairment of her bodily functions; required a woman to wait twenty-four hours after giving her informed consent before receiving an abortion; allowed only a physician to give informed-consent information; required a woman to notify her spouse; and mandated that minors obtain informed consent from at least one parent or a court before receiving an abortion. The plaintiffs in the case, five family planning clinics and a physician provider of abortion services, asked the Court to declare the statutes invalid.

In a close (5–4) decision, the Court again supported the basic provisions of Roe and upheld a woman's right to decide to obtain an abortion. The Court did, however, uphold all the Pennsylvania statutes except for the spousal notification provision, arguing that they did not present an "undue burden" to the woman's reproductive rights. Justices O'Connor, Kennedy, and DAVID H. SOUTER wrote the majority opinion, and Justices JOHN PAUL STEVENS and Blackmun wrote concurring opinions. Chief Justice Rehnquist and Justices Scalia, BYRON R. WHITE, and CLARENCE THOMAS all dissented.

Noting that the case marked the fifth time the Justice Department under the Ronald Reagan and GEORGE H. W. BUSH administrations had filed a report with the Court making known its desire to overturn Roe, the Court's opinion defended the reasoning of the Roe decision. The Court characterized the Roe ruling as having three major provisions:

First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the state. … Second is aconfirmation of the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger a woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.

In Casey, as in Roe, the Court found the constitutional basis of a woman's right to terminate her pregnancy in the Due Process Clause of the Fourteenth Amendment. As the Court stated, "It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter." The Court also invoked the legal doctrine of STARE DECISIS, the policy of a court to follow previously decided cases rather than overrule them.

However, the Court emphasized, more than it had in Roe, "the State's important and legitimate interest in potential life," which is a quote taken directly from Roe. The justices also sought to better define the "undue burden" standard, originally developed by Justice O'Connor, that the Court had used to assess the validity of any possible regulations of a woman's reproductive rights. The Court more precisely defined an undue burden as one whose "purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability."

The dissenting justices in the case restated their opinion that Roe was decided wrongly because no fundamental right for a woman to choose to terminate her pregnancy was written into the U.S. Constitution and because U.S. society, in the past, permitted laws that prohibited abortion. They also gave different arguments for upholding the Pennsylvania statute's restrictions. Such provisions had only to show a "rational basis," and using that test, they would have upheld all the challenged portions of the Pennsylvania law. Chief Justice Rehnquist and Justice Scalia both argued that the Court had misused the notion of stare decisis in the case, because the Court did not uphold all aspects of Roe. Scalia also maintained that although the liberty to terminate a pregnancy may be of great importance to many women, it is not "a liberty protected by the Constitution."

The Court's decision in Casey was used to strike down other state laws that sharply restricted women's access to abortion. In September 1992, citing the Casey decision in Sojourner v. Edwards, 974 F. 2d 27, the U.S. Court of Appeals for the Fifth Circuit struck down a Louisiana law that would have imposed stiff sentences on doctors performing abortions for reasons other than saving the life of the mother or in cases of rape or incest if the victim reported the crime (La. Rev. Stat. Ann. 14:87). The appeals court found the statute unconstitutional because it imposed an undue burden on women seeking an abortion before fetal viability. The Supreme Court later upheld this ruling without comment (Sojourner, 507 U.S. 972, 113 S. Ct. 1414, 122 L. Ed. 2d 785 [1993]).