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After Roe V. Wade

After the Supreme Court decisions in Roe v. Wade and Doe v. Bolton, states began to liberalize their abortion laws. However, abortion quickly became a divisive political issue for Americans. Grassroots opposition to abortion—supported by such influential institutions as the Catholic Church—was strong from the start. By the early 1980s, the anti-abortion movement had become a powerful political force.

President RONALD REAGAN, who came to office in 1981 and served through 1989, strongly opposed abortion and used his administration to try to change abortion rulings. He appointed a SURGEON GENERAL, Dr. C. EVERETT KOOP, who opposed abortion, and Reagan made it a top priority of his JUSTICE DEPARTMENT to effect a reversal of Roe. Reagan even published a book on the subject in 1984, Abortion and the Conscience of a Nation, which contains many of the essential positions of the anti-abortion movement. Reagan argued that the fetus has rights equal to those of people who are already born. He also cited figures indicating that 15 million abortions had been performed since 1973, and he stated his belief that the fetus experienced great pain as a result of the abortion procedure. He quoted a statement by Mother

Supporters of abortion rights at a January 2003 candlelight vigil near the Supreme Court building in Washington, D.C. The Capital dome is illuminated in the background.

Teresa, the famed nun who helped the poor of Calcutta: "The greatest misery of our time is the generalized abortion of children." While abortion rights, or pro-choice, advocates argued that there were public health advantages of the new abortion laws, opponents of abortion, such as Reagan, referred to abortion as a "silent holocaust."

The anti-abortion, or pro-life, movement has challenged abortion in a number of different ways. It has sponsored constitutional amendments that would effectively reverse Roe, as well as legislation that would limit and regulate access to abortion, including government financing of abortion procedures. Some anti-abortion groups have practiced civil disobedience, attempting to disrupt and block abortion clinic activities. The most extreme opponents have resorted to violence and even murder in an attempt to eliminate abortion.

All these methods have resulted in a great deal of litigation and added to the complexity of the abortion issue. Many of the subsequent cases have come before the Supreme Court. Observers have often expected the Court to overturn its Roe decision, particularly after the Reagan administration appointed three justices to the Court. However, while the Court has allowed increasingly strict state regulation of abortion since Roe, it has stuck to the essential finding in the case that women have a limited right to terminate their pregnancies. This entitlement is incorporated in the right of privacy guaranteed by the Fourteenth Amendment.

Constitutional Amendments Although amending the Constitution is the most direct way to reverse Roe v. Wade, neither Congress nor the states have passed a constitutional amendment related to the issue of abortion. The anti-abortion forces have found it extremely difficult to achieve a public consensus on this divisive issue. However, at least 19 state legislatures have passed applications to convene a constitutional convention to propose an amendment that would outlaw abortions. Congressional representatives have also worked to bring such an amendment about. The many dozens of amendments that have been proposed can be grouped into two main categories: STATES' RIGHTS, and the right to life. The former would restore to the states the same control over abortion that they exercised prior to Roe. The latter would designate the fetus as a person, entitled to all the privileges and rights guaranteed under the Fourteenth Amendment.

One unsuccessful attempt at changing the Constitution was the Hatch amendment of 1983, sponsored by Senator Orrin G. Hatch (R-Utah), which stated, "A right to abortion is not secured by this Constitution." It did not receive the two-thirds majority necessary in Congress to be submitted to the states for ratification.

Congress has also sponsored legislation that would effectively reverse Roe. For example, the Human Life Bill (S. 158), introduced by Senator JESSE HELMS (R-N.C.) in 1981, would have established that the fetus is a person, entitled to the full rights and privileges guaranteed by the Fourteenth Amendment. The bill did not pass, and it is doubtful whether Congress has the constitutional authority to overturn a Supreme Court precedent without violating the SEPARATION OF POWERS.

Federal Financing In 1976, Representative Henry J. Hyde (R-Ill.) sponsored an amendment to the FEDERAL BUDGET appropriations bill for the DEPARTMENT OF HEALTH AND HUMAN SERVICES (HHS). His amendment denied MEDICAID funding for abortion unless the woman's life is in danger or she is pregnant as a result of rape or incest, but only if the woman reports the incident at the time of its occurrence. Despite opposition from pro-abortion groups, Hyde attached this amendment every year to the same appropriations bill. The Supreme Court has upheld the constitutionality of the Hyde amendment (Harris v. McRae, 448 U.S. 297, 100 S. Ct. 2671, 65 L. Ed. 2d 784 [1980]; McGowan v. Maryland, 366 U.S. 420, 81 S. Ct. 1101, 6 L. Ed. 2d 393[1961]). Evidence suggests that these federal actions have caused fewer women to have abortions.

In the late 1980s, with its composition having been changed by three Reagan appointees (Justices SANDRA DAY O'CONNOR, ANTONIN SCALIA, and ANTHONY M. KENNEDY), the Court issued a ruling related to federal financing of abortion that many perceived as a dramatic shift against abortion rights. In WEBSTER V. REPRODUCTIVE HEALTH SERVICES, 492 U.S. 490, 109 S. Ct. 3040, 106 L. Ed. 2d 410 (1989), the Supreme Court upheld a Missouri law prohibiting the use of public funds and buildings for abortion procedures and counseling, including a provision that required fetal testing for viability for abortions performed after the twentieth week of pregnancy (Mo. Rev. Stat. §§ 1.205.1, 1.205.2,188.205, 188.210, 188.215). Scalia, appointed in 1986, argued in his concurring opinion that Roev. Wade should be overruled and that the Court had missed an opportunity in not doing so in this case.

The Webster decision resulted in a flood of new state legislation related to abortion. Many states sought to reactivate old abortion laws that had never been taken off the books subsequent to Roe. Louisiana, for example, sought to reinstate an 1855 law making all abortions illegal and imposing a ten-year sentence on doctors and women violating it. However, in January 1990, a federal district court ruled that the 1855 law could not be reinstated and that subsequent laws allowing abortions in certain circumstances took precedence (Weeks v. Connick, 733 F. Supp. 1036 [E.D. La. 1990]). By mid-1991, Pennsylvania, Guam, Utah, and Louisiana had all enacted laws banning abortions except in limited circumstances. Pennsylvania became the first to approve new abortion restrictions when it amended its Abortion Control Act (Pa. Cons. Stat. Ann. § 3201) to create strict new regulations on abortion procedures (see the discussion of Planned Parenthood of Southeastern Pennsylvania v. Casey under "Other Major Abortion Regulations," later in this entry). In other states such as South and North Dakota, legislation that would have sharply restricted abortion was only narrowly defeated. However, some states, including Connecticut and Maryland, reacted to the Webster decision by passing legislation protecting women's rights to abortion.

Before the Court ruled on Pennsylvania's Abortion Control Act, it decided a major case relating to federal funding and regulation of family planning clinics. In Rust v. Sullivan, 500 U.S. 173, 111 S. Ct. 1759, 114 L. Ed. 2d 233 (1991), the Court upheld a series of regulations issued in 1988 by the Reagan administration's Justice Department affecting family planning clinics that receive funds through title X of the Public Health Service Act of 1970, 42 U.S.C.A. §§ 300–300a-6. The regulations prohibited clinic personnel from providing any information about abortion, including counseling or referral. The regulations also required that the only permissible response to a request for an abortion or referral was to state that the agency "does not consider abortion an appropriate method of planning and therefore does not counsel or refer for abortion." This regulation became known to its detractors as the GAG RULE.

The regulations also prohibited title X-funded family planning clinics from LOBBYING for legislation that advocated or increased access to abortion, and they required that such clinics be "physically and financially separate" from abortion activities. Although a family planning agency could still conduct abortion-related activities, it could not use federal money to fund such activities. Chief Justice WILLIAM H. REHNQUIST, who wrote the Court's opinion, disagreed with the contentions of the plaintiffs—several family planning agencies—that the federal regulations violated a woman's due process right to choose whether to terminate her pregnancy. He pointed out that the Due Process Clause generally confers no affirmative right to government aid. The government has no constitutional duty to subsidize abortion and may validly choose to fund "childbirth over abortion." Rehnquist noted that a woman's right to seek medical advice outside a title X-funded agency remained "unfettered."

Justice Blackmun, author of the Roe majority opinion, dissented, arguing that the regulations, because they restricted speech as a condition for accepting public funds, violated the First Amendment's free speech provision. The regulations, he wrote, suppressed "truthful information regarding constitutionally protected conduct of vital importance to the listener." Blackmun saw the regulations as improper government interference in a woman's decision to continue or end a pregnancy, and he claimed that they rendered the landmark Roe ruling "technically" intact but of little substance.

On January 22, 1993, shortly after taking office, President BILL CLINTON signed a memorandum that revoked the gag rule, maintaining that it "endangers women's lives by preventing them from receiving complete and accurate medical information." On February 5, 1993, the secretary of HHS complied with the president's decision and declared that the department would return to title X regulations that were in effect before February 1988. Title X-funded clinics would again be able to provide nondirective counseling on all options to a patient and to refer her for abortion services if she chose. However, such clinics would still be prohibited from engaging in pro-choice lobbying or litigation.

Additional topics

Law Library - American Law and Legal InformationFree Legal Encyclopedia: "But for" Rule to Additional InstructionsAbortion - History, Three Sides To The Abortion Debate, Roe V. Wade And Doe V. Bolton