Reproduction

The establishment in Eisenstadt of an individual's right to privacy soon had dramatic implications for state laws that criminalized abortions. Until the 1960s, abortion was illegal in every state, except to save the mother's life. The growth of the modern feminist movement in the 1960s led to calls for the legalization of abortion, and many state legislatures began to amend their laws to permit abortion when the pregnancy resulted from a rape or when the child was likely to suffer from a serious birth defect. However, these laws generally required that a committee of doctors approve the abortion.

State legislation was swept away with the Supreme Court's controversial decision in ROE V. WADE, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). A CLASS ACTION lawsuit challenged the state of Texas's abortion law. SARAH WEDDINGTON, the attorney for "Jane Roe," argued that the Constitution allows a woman to control her own body, including the decision to terminate an unwanted pregnancy.

The Supreme Court, on a 7–2 vote, struck down the Texas law. Justice HARRY A. BLACK-MUN, in his majority opinion, relied on the prior right to privacy decisions to justify the Court's action. Blackmun concluded that the right to privacy "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." More importantly, he stated that the right of privacy is a fundamental right. This meant that the state of Texas had to meet the STRICT SCRUTINY test of constitutional review. Texas showed a compelling state interest because it had a strong interest in protecting maternal health that justified reasonable state regulation of abortions performed after the first trimester (three months) of pregnancy. However, Texas also sought to proscribe all abortions and claimed a compelling STATE INTEREST in protecting unborn human life. Though the Court acknowledged that this was a legitimate interest, it held that it does not become compelling until that point in pregnancy when the fetus becomes "viable," capable of "meaningful life outside the mother's womb." Beyond the point of viability, the Court held that the state may prohibit abortion, except in cases in which it is necessary to preserve the life or health of the mother.

The Court rejected the argument that a fetus is a "person" as that term is used in the Constitution and thus possesses a right to life. To find a fetus to be a person would make any abortion a HOMICIDE, which would prevent a state from allowing abortions in cases of rape or in which the pregnancy endangers the life of the mother.

The Roe decision elicited a hostile reaction from opponents of abortion. The creation of a "pro-life" movement that sought to overturn Roe was immediate, becoming a new fixture in U.S. politics. Pro-life forces sought a constitutional amendment to undo the decision, but it fell one vote short in the U.S. Senate in 1983. Over time, as the composition of the Supreme Court has changed, the Court has modified its views, without overturning Roe.

In the 1970s, a majority of the Court resisted efforts by some states to put restrictions on a woman's right to have an abortion. In Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S. Ct. 2831, 49 L. Ed. 2d 788 (1976), the Court struck down a Missouri law that required minors to obtain the consent of their husbands or parents before obtaining an abortion. In 1979, in Bellotti v. Baird, 443 U.S. 622, 99 S. Ct. 3035, 61 L. Ed. 2d 797, the Court invalidated a similar Massachusetts law. Both opinions emphasized the personal nature of abortion decisions and the fact that the state cannot give someone else a VETO over the exercise of one's constitutional rights.

In Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 103 S. Ct. 2481, 76 L. Ed. 2d 687 (1983), the Court struck down a city ordinance that required that all abortions be performed in hospitals; a twenty-four-hour waiting period must pass before an abortion could be performed; certain specified statements be made by a doctor to a woman seeking an abortion to ensure that she made a truly informed decision; and all fetal remains be disposed in a humane and sanitary manner. The Court held that these requirements imposed significant burdens on a woman's exercise of her constitutional right without substantially furthering the state's legitimate interests.

Opponents of abortion were successful, however, in preventing the payment of public funds for abortions not deemed medically necessary. In Maher v. Roe, 432 U.S. 464, 97 S. Ct. 2376, 53 L. Ed. 2d 484 (1977), the Court upheld a Connecticut state regulation that denied MEDICAID benefits to indigent women seeking to have abortions, unless their physicians certified that their abortions were medically necessary. The Court found the law permissible because poor women were not a "suspect class" entitled to strict scrutiny review and because the regulation did not unduly burden the exercise of fundamental rights. In 1980, the Court upheld a provision of federal law, commonly known as the Hyde amendment, forbidding federal funds to support nontherapeutic abortions (Harris v. McRae, 448 U.S. 297, 100 S. Ct. 2671, 65 L. Ed. 2d 784).

During the 1980s and 1990s, the conservative majority on the Court showed more deference to state regulation of abortions. In WEBSTER V. REPRODUCTIVE HEALTH SERVICES, 492 U.S. 490, 109 S. Ct. 3040, 106 L. Ed. 2d 410 (1989), the Court upheld a Missouri law restricting abortions that contained the statement, "the life of each human being begins at conception." On a 5–4 vote, the Court upheld a law that forbids state employees from performing, assisting in, or counseling women to have abortions. It also prohibited the use of any state facilities for these purposes and required all doctors who would perform abortions to conduct viability tests on fetuses at or beyond 20 weeks' gestation.

In 1991, the Court upheld federal regulations imposed by the Reagan administration that barred birth control clinics that received federal funds from providing information about abortion services to their clients (Rust v. Sullivan, 500 U.S. 173, 111 S. Ct. 1759, 114 L. Ed. 2d 233). The Supreme Court found the regulation to be a legitimate condition imposed on the receipt of federal financial assistance.

The Court appeared to be ready to overturn the Roe precedent, but it surprised observers when it upheld Roe in Planned Parenthood v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992). The Pennsylvania law restricting abortions required spousal notification, parental consent in cases of minors, and a 24-hour waiting period before the abortion could be performed. Similar requirements had been struck down by the Court before.

On a 5–4 vote, the Court reaffirmed the essential holding of Roe that the constitutional right of privacy is broad enough to include a woman's decision to terminate her pregnancy. Though there was no majority opinion, the controlling opinion by Justice ANTHONY M. KENNEDY, joined by Justices SANDRA DAY O'CONNOR and DAVID H. SOUTER, defended the reasoning of Roe and the line of cases that followed it. However, the joint opinion abandoned the trimester framework and declared a new "undue burden" test for judging regulations of abortion. Using this test, the joint opinion upheld the parental consent, waiting period, and record-keeping and reporting provisions, but invalidated the spousal notification requirement.