Abortion: II. Contemporary Ethical and Legal Aspects: B. Legal and Regulatory Issues
II. CONTEMPORARY ETHICAL AND LEGAL ASPECTS: B. LEGAL AND REGULATORY ISSUES
Most contemporary legal systems regulate the practice of induced abortion. Governments around the world regulate whether, when, why, and how the estimated 46 million annual abortions occur. In some countries, abortion is governed primarily by national laws; in others, abortion is governed mainly by state or regional laws. Belief that abortion is unsafe, irreligious, immoral, unjust, or genocidal has tended to push regulation in the direction of laws that expressly prohibit some or all abortions. Convictions that abortion can alleviate overpopulation, avert economic hardship, protect women's health, promote sex equality, or eliminate undesirable progeny have tended to produce laws that permit, guarantee, or even compel abortion. More than 75 percent of the world's population live in countries in which abortion is legal, even when the life of pregnant woman is not at stake (Center for Reproductive Law and Policy).
An international survey of existing law reveals four basic patterns or models of express abortion regulation:
- a model of prohibition;
- a model of permission;
- a model of prescription; and
- a model of privacy.
Under the model of prohibition, the laws of a jurisdiction punish most or all abortions as criminal offenses, as in Ireland, Nigeria, Brazil, and Indonesia. In these countries, abortions are banned other than to save the life of the mother. Under the model of permission, laws permit abortions that meet criteria and conditions established by government, as in Sweden, Germany, England, India, and Zambia. For example, in Sweden abortions are readily available, subject to the approval of a National Health Board. In Germany, women face counseling and waiting period requirements for otherwise permitted early abortions. In the United Kingdom excluding Ireland, abortion for health and disability reasons is lawful up to 24 weeks, but a woman must obtain the approval of two physicians. Under the model of prescription, laws specifically require or encourage the termination of pregnancies falling into certain specific categories, as in The People's Republic of China. Finally, under the model of privacy, laws restrain government from enactments that criminalize or severely restrict access to medically safe abortions, as in the United States and Canada. The model of privacy treats abortion decisions as substantially a matter of private choice rather than public law. In some countries using models of permission, prescription, and privacy, including the United States, China, France, the Russian Federation, and South Africa, women are not required by law to provide officials or physicians with a state-approved reason for routine legal abortions (Center for Reproductive Law and Policy). In Russia, whose per capita abortion rate was second in the world after Romania's in 2002, 60 percent of all pregnancies end in abortion.
Abortion law is subject to change from one era to the next. Countries under the sway of the model of prohibition in one generation have moved toward the models of permission or privacy in subsequent generations. For example, when the Supreme Court of the United States declared in Roe v. Wade (1973) that the nation's constitution bars statutes categorically criminalizing all abortions, it announced a national standard for state and federal law that ushered out the model of prohibition and ushered in the model of privacy. Abortion law can also change from liberal to restrictive and back again, in response to political developments and judicial interpretations of constitutional principle. Thus, Poland adopted more restrictive abortion laws after democratic elections in 1989; greatly liberalized its law in 1996; and then, in response to an adverse constitutional court ruling overturning the permissive 1996 law, quickly revised its law in 1997. Under a 1997 act of Parliament, Poland permits abortion to protect the pregnant woman's life or health, or to terminate pregnancies resulting from criminal acts or in cases of fetal abnormality.
The Model of Prohibition
The model of prohibition governs official abortion policy in many African, Latin American, South Asian, and Middle Eastern countries. For example, Brazil and Sri Lanka permit abortion only to save the life of the woman. Most jurisdictions in Europe and North America reject the model of prohibition, permitting abortion on request, where pregnancy results from rape or incest, or where the continuation of pregnancy threatens the physical, mental or social wellbeing of the woman or her fetus. Ireland, a largely Roman Catholic nation, is one of the few European countries whose laws continued to criminalize abortions either absolutely or subject to a strictly limited number of exceptions beyond the 1970s. Under a 1983 amendment to the Irish constitution, Irish law permits abortion only to save the life of the woman. Overturning a ruling that a teenage rape victim who credibly threatened suicide could not travel to England for an abortion, the Irish Supreme Court found in 1992 that abortion would be permissible "if it is established as a matter of probability that there is a real and substantial risk to the life as distinct from the health of the mother, which can only be avoided by the termination of her pregnancy."
Jurisdictions whose laws reflect the model of prohibition often assert a strong religious or humanitarian policy interest in protecting what are thought to be the rights and interests of unborn children. However, other objectives have also prompted strict abortion prohibition. For example, during the nineteenth and twentieth centuries, abortion opponents in the United States cited the need to protect pregnant women from the medical and psychological risks of abortion. There can be no doubt that unskilled, unsanitary abortion procedures are a health risk, and that some women who obtain abortion services experience medical complications and emotional anguish. However, some lawyers and judges doubt that medical abortion performed during the first three months of pregnancy is less safe than pregnancy and childbirth (Tribe; Rhode). They similarly doubt that elective medical abortion poses a serious risk of psychological harm. Although one writer has concluded that "every woman pays a psychological price for abortion" (Reardon, p.141), the American Psychological Association has concluded that serious emotional problems rarely result from abortion.
Countries whose populations have been ravaged by war and genocide have sometimes proscribed abortion in an effort to increase the birth rate. Strict abortion prohibition has had the additional, if only implicit, goal of reinforcing social roles. The cultural assumption that motherhood is the appropriate social role for women buttressed Joseph Stalin's 1936 abortion prohibitions, enacted to furnish the former Soviet Union with "a new group of heroes" (Sachdev). The belief that bearing children is women's natural destiny may lead some to assume that birth control and abortion are both immoral and unhealthful. After 1933, Adolf Hitler prohibited contraception and declared abortion a capital offense on the belief that birth control was unhealthful. On the other hand, abortion prohibitions adopted in Germany in 1943 aimed at the "vitality of the German people" and excluded from criminality abortions performed on "racially" undesirable women (Sachdev).
The reach of laws prohibiting abortion can be broad. Obtaining an abortion has been subject to criminal penalty in some instances, and so too has distributing abortion information. Provisions of the famous Comstock Law enacted by the Congress of the United States in 1873—later rescinded—outlawed abortion-related implements and information as "obscene" and "immoral" (Garrow; Rhode). Offenders of the Comstock Law faced imprisonment with hard labor and monetary fines. Jurisdictions prohibiting abortion generally aim at the conduct of third-party abortion providers. However, some abortion statutes also criminalize pregnant women's own conduct, making it a punishable offense to obtain or seek abortions from third parties. Legal systems rarely punish medical abortion as the full equivalent of felonious unjustified murder.
Criminalizing non-surgical and self-induced abortion poses special problems of detection and law enforcement. Pharmaceuticals approved for other purposes, like the cancer drug methotrexate, can be used to induce abortion. Self-induced abortion has often involved risky procedures, such as inserting knitting needles, wire coat hangers, or other foreign objects through the cervix. Many self-induced abortions are detected because they end tragically in medical and police emergencies. In 1989, a healthcare group in California promulgated a videotape demonstrating "menstrual extraction," a nonmedical abortion technique trainers say women can learn to perform safely at home with the help of a friend. To the extent that they are workable, abortion procedures that can be performed without professional assistance fall beyond the practical reach of law.
Prohibitive abortion law requires lawmakers to define what counts as abortion, and therefore what is subject to criminal penalties. The surgical and medical procedures generally in use by physicians in licensed hospitals and clinics in Europe and the United States plainly qualify as abortion. However, certain forms of birth control not viewed as abortion could conceivably fall under the scope of strict abortion prohibitions. Popularly viewed as a form of contraception, the intrauterine device (IUD) may function as a kind of abortifacient, blocking implantation of a fertilized egg, rather than preventing ovulation or fertilization. Étienne-Émile Baulieu's drug, RU-486, named for its French manufacturer, Roussel Uclaf, poses a related difficulty of definition. Described by French Minister of Health Claude Levin as "the moral property of women, not just the property of the drug company," RU-486 (mifepristone) arrived on the European scene in the 1980s and in the United States in 2000. Unlike pharmaceutical contraceptives that prevent fertilization or ovulation, RU-486 acts to block the successful implantation of a fertilized egg. Rejecting the popular "abortion pill" label, Baulieu has suggested that RU-486 is neither contraception nor abortion but something new—"contragestation." Still, it seems unlikely that a jurisdiction that strictly prohibits abortion would view "contragestation" as anything other than early abortion.
Abortion flourishes under regimes of prohibitive abortion law (Sachdev). In fact, about half of the estimated 46 million abortions that take place each year are illegal in the jurisdictions in which they occur. The criminal code of Bangladesh strictly prohibits most abortions, but physicians commonly induce abortion by performing a uterine evacuation procedure known as "menstrual regulation" on women who are many weeks pregnant. Prohibitive abortion laws commonly fall short of their stated goals and public expectations because governments are unwilling or unable to enforce the letter of the law. The prohibitive laws that governed abortion in the United States prior to Roe v. Wade were enacted to preserve unborn life and women's physical and mental health (Garrow). It has been argued that the aim of fetal preservation was at least partly undermined by the large number of clandestine abortions performed, notwithstanding prohibitive laws (Tribe). Although most abortions were illegal in much of the United States prior to 1973, American women obtained an estimated 200,000 to 1.2 million abortions each year in the 1960s and early 1970s (Tietze, Forrest, and Henshaw), compared to about 1.5 million each year throughout the 1980s and early 1990s, and 1.3 million in 1997. David Reardon puts the number of abortions pre-Roe at merely 100,000 to 200,000 per year. The aim of preserving women's health may have been frustrated under the regime of prohibition because clandestine abortions were commonplace but were not always performed by skilled practitioners in hygienic settings. This was especially true of the illegal abortions obtained by African-American women, who accounted for a disproportionate number of the victims of illegal procedures. (Twenty percent of the deaths related to pregnancy and childbirth in the United States in 1965 were attributed to illegal abortions.) Legalization of abortion probably resulted in a small-to-moderate increase in the number of abortions, but it appears to have greatly decreased the incidence of abortionrelated infertility and death.
Model of Permission
The model of permission became the pervasive one around the world in the final quarter of the twentieth century. Under the model of permission, abortion is legally available, but only with the approval of government officials or officially-designated decision makers, such as administrative boards, committees, physicians, or judges. In some permission-model jurisdictions, officials grant permission pro forma in nearly every case. In Norway, prior to 1975 reforms that liberalized abortion, as many as 94 percent of the requests for abortions made to Abortion Boards were routinely granted (Olsnes). Official decision makers in permissive jurisdictions rely upon a handful of factors to determine which abortions to permit and which abortions to prohibit (Petersen; Glendon).
The stage of pregnancy is very frequently a factor. Officials called upon to implement legal norms or exercise discretion often permit "early" abortions and prohibit "late" ones. This no doubt helps to explain the statistic that 90 percent of reported abortions take place within the first three months of pregnancy. Another factor decision makers commonly consider is the woman's medical or social status. Restrictive laws require that officials deny permission to abort for reasons other than medical hardship. Liberal laws often require that officials allow abortions because pregnancy or childbirth would involve social or economic hardship for the woman. In many jurisdictions, grounds for social hardship include rape, incest, or the age and marital status of the woman. The health or condition of the fetus can be a third factor in permitting or prohibiting abortion. The law may premise access to abortion on evidence that a child would be born with serious physical or mental abnormalities.
Genetic testing for the purpose of enabling parents to abort fetuses born with undesirable traits is already practiced in the United States. Healthcare providers in some states even face "wrongful life" and "wrongful birth" lawsuits for negligent failure to offer women information needed to prevent or abort an unwanted pregnancy. With advances in prenatal testing that enable detection of the sex of a fetus, it is possible for a pregnant woman to abort selectively unwanted male or female offspring. In some instances, abortion for sex selection may be tied to a desire to avoid giving birth to a child with a gender-related genetic disease. Jurisdictions that permit abortion without regard to reason presumably permit abortion for sex selection.
For most of the twentieth century, a number of countries governed abortion under highly bureaucratic versions of the model of permission (Sachdev). For a time in the eastern European countries of Hungary, Romania, Poland, and Bulgaria, abortion was lawful only if approved by a state board or committee. These countries reportedly permitted abortion in almost every case through the fourth month of pregnancy. Romania reverted to a prohibitive policy in 1966 in response to concerns about underpopulation and the health effects of multiple abortions. It prohibited most contraception and abortion for women who did not have at least four, and eventually five, children. Abortion prohibition was accompanied by a significant incidence of mortality related to illegal abortion. In the mid-1980s, 86 percent of the women in Romania who died as a consequence of pregnancy or childbirth died as a result of illegal abortions, compared with, for example, 29 percent in the former Soviet Union and 13 percent in Sri Lanka.
Other historical instances of the bureaucratic model of permission are the laws and administrative regulations in force in Denmark from 1939 to 1973, and in Sweden from 1939 to 1974. In Denmark, local and national committees consisting of teams of social workers, physicians, and psychiatrists evaluated the applications of women seeking legal abortions. Scandinavian officials on boards or committees charged with decision making typically assessed the impact of childbirth and child care on the mental or physical health of the woman, and the woman's living conditions. Israeli Ministry of Health regulations enacted in 1978 permitted hospitals and clinics to form committees consisting of two physicians and a social worker to decide whether to grant women's abortion requests. Although living conditions, such as other children and economic hardship, were initially an authorized basis for granting abortion requests, Israel amended the law in 1980 under pressure from religious groups and in response to concerns about a declining population rate.
At the beginning of the twenty-first century, a number of countries in Asia, South America, Europe, and North America make a woman's obtaining an abortion dependent upon the approval of one or more physicians, a judge, or one or both parents. Great Britain and countries whose abortion law was modeled on Great Britain's—Hong Kong, Zambia, and Australia—are examples of countries whose laws place decision making in the hands of physicians. The law of Great Britain was transformed over a great many centuries from a model of prohibition, to a model of permission, and even a model of privacy. Early English common law embodied the model of prohibition, at least for abortions taking place after the first few months of pregnancy. The common law proscribed abortion after quickening, about the fourth month of pregnancy, when fetal animation or ensoulment was deemed to have taken place. In 1861 the statutory abortion law of Great Britain defined as a felony any act intended to cause abortion, whether induced by the woman herself, if she were pregnant, or by others, whether or not she was in fact pregnant. The Abortion Act of 1967 abolished the nineteenth-century felony. The act's liberal provisions permit an abortion where any two medical practitioners certify in good faith that pregnancy "would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of the pregnant woman or any existing children of her family, greater than if the pregnancy were terminated." Under this rule, qualifying for abortion poses no practical difficulty for women with the money to pay private physicians. As English law illustrates, the model of permission can have the distinct effect of empowering the medical and psychiatric professions to govern reproduction in accordance with their profession's internal standards of judgment.
Abortion is common in Australia, where abortion rights vary significantly from state to state and are governed both by common law and criminal statute. A liberalizing trend has been observed since the mid-1990s, when only South Australia and the Northern Territory had statutes specifically permitting some abortions. In 1998 controversy erupted over Australian abortion law, when two physicians were arrested in Western Australia for violating a moribund nineteenth-century criminal statute. The doctors had performed a consensual abortion in 1996 on a Maori woman who stored the aborted fetus in her refrigerator, planning to take it to New Zealand for burial in accordance with Maori traditions. Following reforms, early abortion is available virtually on demand in some Australian states, and is subject to enforced restrictions in others.
In India, the Medical Termination Pregnancy law enacted in 1971 permitted abortions that one or, if the woman is more than twelve weeks pregnant, two physicians certify. Grounds for certification are liberal. Abortion may be obtained to preclude a risk to the pregnant woman's mental or physical health, or a risk of the birth of a child with serious mental or physical abnormalities. No abortions after twenty weeks are legal under the law. A woman's mental health is considered at risk in cases of economic hardship and where pregnancy resulted from failed contraception. The 1975 Abortion and Sterilization Act made many abortions lawful in the Republic of South Africa, on the certification of two physicians that statutory requirements are met. The law required that where abortion was sought on grounds of risk to mental health, one of two certifying physicians be a psychiatrist willing to attest to danger of permanent mental harm. South Africa has subsequently liberalized its abortion law, making early abortion available on demand.
French law permits women to make their own judgments (early in pregnancy) about whether they are entitled to abortion on grounds of hardship. In this respect, French law resembles the federal law of the United States under Roev. Wade. French regulations enacted in 1975 are representative of international responses to the judicial transformation of United States law with Roe v. Wade in 1973. Reflecting the aspirations of both the model of permission and the model of privacy, the French enactment begins with a declaration that the law guarantees respect for every human being from the beginning of life, and that this principle is to be sacrificed only in case of necessity and according to specific conditions. But the law authorizes any woman who is ten weeks pregnant or less to request a physician for an abortion if she believes pregnancy or childbirth will create hardship. Moreover, at any stage of pregnancy, right up to the moment of birth, abortion is lawful if two physicians, one of them from an official list, certify that continuation of pregnancy would put the woman's health gravely in peril, or that there is a strong possibility that the child would suffer from an incurable condition.
The French abortion law imposes numerous conditions on all abortions. Attending physicians must inform women of the medical risks of abortion and give them an official guide to the forms of assistance available to families, mothers, and children, and to relevant social service organizations. Women then must consult one of the listed social services. Women wishing to proceed with abortion must confirm their request in writing, after a one-week waiting period. Abortions must be performed by physicians in a public or recognized private hospital and must be reported to the regional health authorities. Hospitals must provide women who have obtained abortions with birth control information.
The model of privacy may best describe the overall aspiration of Roe v. Wade. However, the model of permission is arguably more descriptive of United States abortion law pertaining to unemancipated minors. The Supreme Court has taken the position that minors have a constitutional right to privacy and may terminate their pregnancies without parental consent, but that minors may not object on constitutional grounds to parental notification requirements and waiting periods. Individual justices on the Court have argued that requiring pregnant minors to notify family members of pregnancy and abortion, in effect, gives veto powers to third parties in a way that is inconsistent with the spirit of Roe v. Wade. Yet, a majority held in Hodgson v. Minnesota (1990) that states providing a "judicial by-pass procedure" may attempt to involve one or both parents in minors' abortion decision making by requiring minors or their physicians to contact parents in advance of abortion. In judicial bypass procedures, minors must be permitted to ask a judge to waive parental notification requirements. The judge is expected to waive the requirement if he or she determines that the minor is mature or that notification is not in the minor's best interests. Justices in the minority have objected that bypass procedures are unwarranted, since most minors notify parents or other responsible adults of pregnancy and abortion, and most minors seeking judicial waiver obtain it. In addition, the practical effect of mandatory notification is that some teens will delay abortion, increasing costs and medical risks. Some justices have argued that laws requiring parental involvement place minors with abusive parents or broken homes at a disadvantage and even at mortal risk.
Model of Prescription
Under the models of permission and privacy, a government permits some or all of the abortions women want. Under the model of prescription, a government compels or virtually compels women to obtain abortions the government wants. Far-reaching compulsory abortion laws have been rare in the modern world. In the West, policymakers frown upon official and unofficial policies of mandatory abortion for poor and mentally incompetent women. Although healthcare providers reportedly recommend abortion in some instances—for example, when a pregnant woman is addicted to cocaine or infected with the AIDS virus—the United States government does not officially recommend or mandate abortion for any class of pregnancy. Under a penal code adopted in 1979, Cuban law proscribes abortion performed without the permission of the woman.
In an effort to control overpopulation and protect its economy, China began adopting "planned birth" family-planning measures in 1953. These measures aggressively encourage abortion through a system of penalties and rewards. Under the Chinese constitution, both the government and individuals are responsible for the planned-birth policy. In 1974, couples were limited to two children. Since 1979 couples wishing to bear children have been authorized to have only one child, and then only after securing a government permit. To encourage compliance, abortion is offered at no cost and may entitle the woman to a two-week paid leave of absence; women who have an IUD inserted or a tubal ligation along with abortion may receive additional paid leave. The effect of the planned-birth policy on the abortion rate in China is not known in the West. However, female infanticide and abortion for sex selection are reported. Chinese families have reportedly resorted to infanticide and selective abortion to ensure that their one-child quota is filled by a child of the culturally preferred male sex.
Model of Privacy
Under the model of privacy, the law rarely compels abortion and permits all or virtually all abortions, as long as they are performed by medically qualified persons in clinics, hospitals, or other qualified facilities. Safety is a frequent goal of legal systems characterized by the model of privacy, although safety is not necessarily suggested by "privacy" nomenclature. The former Soviet Union adopted the model of privacy on safety and privacy grounds in 1920, more than a half century before the model came to dominate under-standings of U.S. law. The goal of the Soviet decree legalizing any abortion performed by a physician in a state hospital was both to keep women safe from unskilled abortionists and to secure women's freedom and equality in work, education, and marriage. In 1936, the decree was rescinded in favor of a law prohibiting abortion other than to spare the life or health of the woman or prevent transmission of an inheritable disease. The shift back to the models of prohibition and permission seems to have been motivated by concern about declining birthrates, health effects of medical abortions, and diminished regard for marriage and childbearing. But in 1955, the Soviet law moved back toward the model of privacy, again to protect women from unskilled abortionists and to give women themselves an opportunity to decide whether to become mothers (Sachdev).
In Japan, abortion has been legal since the government passed Eugenic Protection Laws in 1948 to protect women's health and deter the birth of what were considered undesirable offspring. In practice, abortion is available to women in Japan upon request. The law does limit abortion, but the limitations are extremely liberal: Abortion is permitted when performed by designated physicians to avert mental and physical disease or abnormalities; when pregnancy results from violence; or when the woman's health would be impaired for physical or economic reasons. Functionally, one can view Japan as a model of privacy jurisdiction; yet women's autonomy and equality are not the express policy objectives of its liberal abortion law. Japan follows the model of permission insofar as laws restrict abortion and have not been designed specifically to promote autonomous, private decision making. For nearly thirty years after they had been approved for use in North America and Europe, low-dose birth control pills were banned in Japan out of concerns about safety. The end of the ban in 1999 could mean that abortion will no longer function as a major form of birth control in Japan.
In the United States, abortion policy since the early 1970s has been directed to women's rights. During the early 1970s, the United States and a number of other countries adopted laws approximating the model of privacy. The theory that during the first trimester abortion ought to be available without any restrictions gained popularity. In effect, this approach was adopted in the former East Germany in 1972, Denmark in 1973, Sweden in 1974, France in 1975, and Norway in 1978 (Sachdev; Olsnes). "Fetal viability," the point at which, in some of these countries, the interests of the woman cease to be accorded overriding weight, is variously fixed between twenty weeks and twenty-eight weeks. In Norway, under 1978 amendments to a 1975 law, a woman "shall herself make the final decision concerning termination of pregnancy provided that it is possible to perform the operation before the twelfth week of pregnancy has elapsed." After the twelfth week, abortion sought for a number of medical or social indications is available upon successful application to an "Abortion Board" (Olsnes).
In Morgentaler et al. v. The Queen (1988), the Supreme Court of Canada found by a margin of five to two that provisions of the Criminal Code infringed Section 7 of the Canadian Charter of Rights and Freedoms promising "life, liberty and security of the person." The Canadian justices argued that "personal security," and with it "bodily integrity," "human dignity," and "self-respect," were threatened by interference with reproductive choices (Morton). The Canadian legislature remains free to regulate abortion consistent with the Morgentaler decision. However, in 1990 a bill to restrict abortion access to women whose physicians certified a health-related need for the procedure failed. The government thereafter announced that it would not seek new abortion legislation.
In Canada, the United States, and other privacy-model jurisdictions, liberal abortion law permits autonomous choices about matters that profoundly affect women's bodies, lifestyles, and equality. However, it is generally recognized that laws that decriminalize and deregulate abortion do not guarantee that every woman who desires an abortion will get one. Abortion is costly, and may or may not be covered by the health insurance of women who have insurance. The U.S. Supreme Court has repeatedly held that state and federal governments may encourage childbirth over abortion by refusing to include abortion among Medicaid and other entitlements awarded the poor. As a consequence, public funding for abortion is not available as a matter of right; publicly funded civilian and military hospitals are not required to perform abortion services; and states may prohibit physicians employed by public hospitals from performing abortions.
Focus: The United States
The Constitution of the United States does not mention "abortion" by name. However, the Supreme Court has consistently held since Roe v. Wade (1973) and Doe v. Bolton (1973) that the due process clause of the Fourteenth Amendment guarantees American women a fundamental right to obtain medically safe abortions. States may not categorically ban abortion or unduly burden women's fundamental constitutional right to terminate pregnancy.
The state of Connecticut passed the first American legislation against abortion in 1821 (Garrow). At first, American law did not penalize early (pre-quickening) abortion. However, between 1827 and 1860, twenty states or territories passed statutes against abortion at all stages of pregnancy. By 1868, thirty-six states or territories had antiabortion statutes in place, enforcement of which was often lax. In 1965, all fifty states treated abortion and attempted abortion at all stages of pregnancy as felonies, subject to certain exceptions. In forty-six states and the District of Columbia, the relevant statutes explicitly permitted abortion to save the mother's life, while in two of the other four states a similar exception was recognized by the courts.
Between 1967 and early 1973, a dozen jurisdictions in the United States adopted somewhat permissive abortion laws patterned on the model legislation suggested in 1962 by the influential American Law Institute. These laws permitted abortion when performed by a licensed physician who determined that there was a substantial risk that pregnancy would seriously injure the physical or mental health of the mother; that the child would be born with grave physical or mental defect; or that the pregnancy resulted from rape or incest. Almost all of the other reforming jurisdictions nevertheless sought to strengthen the institutionalization of abortion practice by stipulating that an abortion would be lawful only if performed in an accredited hospital after approval by a committee established in the hospital for that purpose.
The decriminalization of abortion on the national level lagged behind the decriminalization of contraception. In 1965 the Supreme Court decided Griswold v. Connecticut, holding that states may not outlaw a married woman's use of birth control. The Court based its ruling on an unenumerated constitutional "right to privacy" implicit in the Bill of Rights and the Fourteenth Amendment. This same right to privacy was invoked in 1973 in Roe v. Wade to limit government interference with abortion. The right to privacy was, and is, controversial among lawyers and judges reluctant to recognize novel unenumerated rights. However, both the American Medical Association and the American College of Obstetricians and Gynecologists favored legalization of abortion. The immediate effect of Roe v. Wade and Doe v. Bolton, its simultaneously decided, lesser-known companion case, was to invalidate the laws regulating abortion in every state, except perhaps the already very permissive laws adopted in 1969 and 1970 in New York, Alaska, Hawaii, and Washington.
Roe and Doe established that:
- no law can restrict the right of a woman to have a physician abort her pregnancy during the first three months, or first trimester, of her pregnancy;
- during the second trimester, the abortion procedure may be regulated by law only to the extent that the regulation reasonably relates to the preservation and protection of maternal health;
- at the point at which the fetus becomes "viable," a law may prohibit abortion, but only subject to an exception permitting abortion whenever necessary to protect the woman's life or health (including any aspects of her physical or mental health); and
- no law may require that all abortions be performed in a hospital, or that abortions be approved by a hospital committee or by a second medical opinion, or that abortions be performed only on women resident in the state concerned.
The Court in Roe and Doe concluded that the Constitution does not accord legal personhood status to the fetus. Critics of this conclusion point out that the unborn are implicitly treated as legal persons in several other areas of the law. The unborn are taken into account in the allocation of property rights and the attribution of criminal and civil responsibility. For example, the unborn can inherit property. Negligently killing or injuring a fetus can give rise to civil liability for wrongful death, wrongful birth, battery, and other torts.
Roe made clear that women were not to be ascribed a right to exclusive control over their bodies during pregnancy. Yet the case signaled that the Constitution limits the role government may play in abortion decisions. In the first decade and a half after Roe, the Court struck down numerous state abortion restrictions. States unsuccessfully attempted to control abortion through advertising restrictions; zoning restrictions; record-keeping and reporting requirements; elaborate "informed consent" and physician-counseling requirements; mandatory waiting periods; bans on abortions for sex selection; the requirement of the presence of a second physician during the abortion procedure; the requirement that physicians employ methods of abortion calculated to save the lives of viable fetuses; the oversight requirement that physicians send all tissue removed during an abortion to a laboratory for analysis by a certified pathologist; the requirement that insurance companies offer at a lower cost insurance that does not cover most elective abortion; legislating a statewide information campaign to communicate an official state policy against abortion; legislating criminal sanctions for physicians who knowingly abort viable fetuses; and requirements that some or all abortions after the first trimester be performed in a hospital. However, the Supreme Court has repeatedly validated state and federal government policies that prefer childbirth to abortion by declining to pay for the abortions of poor women entitled to welfare benefits for prenatal care and childbirth (Solinger).
A major reaffirmation of Roe, Thornburgh v. American College of Obstetricians and Gynecologists (1986), held that states were not permitted to indirectly prohibit abortion by encumbering the decision to seek abortion with unnecessary regulations. A series of highly publicized Court decisions handed down since 1989 appear to permit more extensive regulation of first- and second-trimester abortions than Roe and Doe seemed to contemplate. Webster v. Reproductive Services (1989) permitted legislation requiring viability testing and limits on publicly funded physician care. The Court declined in Webster to decide the constitutionality of the declaration in the preamble of a Missouri statute that "[the] life of each human being begins at conception," and that "unborn children have protectable interests in life, health and well being" because the state had not yet sought to limit abortion by appeal to it. Encouraged by the Webster decision, several states and the territory of Guam sought between 1989 and 1992 to ban or discourage abortion through aggressive new regulation and enforcement. Anticipating that the Supreme Court would welcome an opportunity to overrule Roe in the 1990s, Guam enacted legislation prohibiting most abortion and its advocacy. A federal judge quickly declared Guam's law unenforceable under Roe.
In two 1990 cases critical of Roe, Hodgson v. Minnesota and Ohio v. Akron Center for Reproductive Health, the Court upheld parental notification requirements for minors. Rustv. Sullivan (1991) upheld a federal "gag rule" statute, subsequently eliminated by Congress, prohibiting abortion counseling by physicians in federally supported facilities. Planned Parenthood v. Casey (1992) affirmed Roe v. Wade as the law of the land and invalidated spousal notification. However, the case upheld a twenty-four-hour waiting period as part of a state's "informed consent" procedures. Casey shed the trimester framework of Roe, opening the door to regulation at any stage of pregnancy. Casey also announced a weaker standard of review in abortion cases that promised to permit more state regulation. Under Roe, abortion statutes were to be struck down if they did not further a "compelling" state interest. Under Casey, statutes "rationally related" to a "legitimate" state interest are to be upheld, assuming they do not "unduly burden" the abortion right.
Many Americans favor some restrictions on abortion, although a 2000 Gallup poll showed more than 80 percent of Americans approved some or all abortions. A national poll conducted in 1994 by Barna Research Groups showed that 78 percent of the adults surveyed approved the legalization of some (49%) or all (29%) abortions. In a 1994 survey conducted by Yankelovich Partners, Inc., 85 percent said a woman should be able to obtain an abortion no matter what the reason (46%) or in certain circumstances (39%). A CBS News/New York Times poll conducted in 1998 found that 61 percent of those surveyed favored legal abortion in the first trimester, 15 percent favored legal abortion also in the second trimester, and 7 percent favored legality in the third trimester. The same poll showed about 45 percent of those surveyed favored more restrictions on abortion, and 22 percent favored blanket prohibition.
The weakening of the standard of review in abortion cases after the Casey decision underscores that constitutional abortion law in the United States hovers uneasily between the models of permission and privacy. For this reason, it seems likely that the Supreme Court will be asked again and again to clarify the extent to which the state and federal government may restrict abortion rights. Proposed state and federal statutes such as the Partial Birth Abortion Ban Act of 2000 and the Born Alive Infant Protection Act of 2002 would extend legal protections to viable fetuses and curb certain abortion practices. Yet in Stenberg v. Carhart (2000), the Court declared unconstitutional a Nebraska statute outlawing so-called "partial birth" abortions. The Court reasoned that the broadly drafted statute lacked a constitutionally necessary exception for abortions to save the life of the mother, and could be construed to rule out dilation and evacuation as well as the more controversial dilation and extraction or partial birth procedure.
The U.S. Food and Drug Administration approved the controversial drug RU-486 (mifepristone) in 2000. The long awaited "abortion pill" has not become the elected method of abortion for a majority of American patients and providers. Notwithstanding the limited popularity of mifepristone as an abortifacient, state and federal lawmakers who oppose its use acted quickly but unsuccessfully to propose legislation outlawing the drug or limiting the types of physicians authorized to prescribe it. Because of Roe v. Wade and possible nonabortion uses of the medication, it is unlikely that blanket legislative bans on mifepristone would be found constitutional.
As long as they stand, Roe v. Wade and Casey will serve to provide a national abortion law standard for the United States. Since Roe in 1973, several attempts have been made in both houses of the U.S. Congress to undercut the judicial decision through legislation. One attempt, premised on the idea of "states' rights," involved legislation which, if adopted, would have established that no right to an abortion is secured by the Constitution and, therefore, that the fifty states are free to adopt restrictions on abortions. A second attempt, premised on "fetal personhood," would have expanded the definition of "person" under the due process and equal protection clauses of the Fifth and Fourteenth Amendments. The fetal personhood legislation would have declared that the right to personhood attaches from the moment of conception.
Supporters of Roe in Congress have attempted to legislate the holding of Roe through a federal statute. The Freedom of Choice Act was introduced into Congress several times after Webster, beginning in November 1989. Its passage by Congress would prohibit states from enacting restrictions on the right to abortion before fetal viability. A 1994 survey conducted by the Hickman-Brown Research Company found that 56 percent of those polled "strongly" or "somewhat" favored passage of a Freedom of Choice Act, while 38 percent somewhat or strongly opposed such a law. Initiatives to amend the federal constitution to include prolife or pro-choice strictures have not advanced far beyond the drafting table. State statutes and state constitutions are an increasingly significant source of protection for abortion rights.
With In re T.W. (1989), the Florida Supreme Court invalidated that state's parental consent requirement, relying upon the state constitution. As a result of this decision, Florida recognized a fundamental abortion right independent of Roe v. Wade. A Maryland referendum endorsed by voters in 1992 similarly established state abortion rights not tied to the fate of Roe v. Wade in the Supreme Court.
The Implications of Abortion Law
The liberalization of abortion law establishes rights for women who wish to terminate their pregnancies. The full implications of those rights are unclear for
- the use and disposal of fertilized eggs, embryos, and fetal remains;
- the enforceability of surrogate mother and surrogate gestator contracts granting third parties a legal interest in a woman's pregnancy;
- the criminalization of pregnant women's conduct;
- the tort liability of healthcare providers for wrongful birth and wrongful life; and
- organized protest at abortion facilities (Purdy).
One legal concern is whether women who elect to abort have a familial, proprietary, or other interest in routinely aborted embryos or fetuses. State statutes typically require that abortion providers dispose of fetal remains in the way physicians dispose of other excised tissues. Yet some effort has been made to treat abortion tissues and fetuses differently, either because of their possible commercial value for research into the treatment of diabetes, leukemia, Alzheimer's disease, and Parkinson's disease; or because of their possible value as deceased "children." In 1984 a federal judge in Louisiana held that a statute requiring abortion providers to present patients with the option of burial or cremation was an unconstitutional burden on freedom of choice. About 90 percent of all abortions performed in the United States, and in other countries, are performed during the first trimester. The court implied that women might be discouraged from first-trimester abortions on the mistaken belief that extracted tissue would resemble a baby. Another legal concern is whether aborted embryos and fetuses may be sold for research purposes. American courts and legislators are unlikely to permit outright sales of abortion tissues for research purposes. Indeed, federal agency policies adopted in the 1980s declared a moratorium on the use of abortion tissues derived from elective abortions partly out of concern that women might be encouraged to abort for gain. Signaling a change in policy, in 1993, Democratic President William Jefferson Clinton issued an executive order lifting the moratorium on fetal tissue research. President George W. Bush reversed this move, with his announcement of new federal restrictions on human embryo-derived stem cell research in 2001.
Hundreds of men and women have been parties to commercial surrogate motherhood contracts in recent decades. Commercial surrogacy agreements commonly obtain provisions in which the would-be surrogate mother or gestator undertakes that she will not obtain an abortion should she become pregnant as a result of the surrogacy transactions. In the celebrated 1988 Baby M case, MaryBeth Whitehead agreed in writing that she would "not abort the child once conceived" unless a physician determined it necessary to protect her health or "the child has been determined … to be physiologically abnormal." Although the Supreme Court of New Jersey refused to enforce the surrogacy contract in Baby M, other jurisdictions have not done so and face questions about the commercial alienability of constitutional abortion rights.
Another set of issues relates to the extent to which abortion rights may prevent government from intervening to enjoin or punish risky behavior by pregnant women who, for example, smoke cigarettes, consume alcohol, abuse drugs, and fail to heed medical advice. In a number of isolated cases in the United States, judges have jailed pregnant women they feared would abuse or neglect their fetuses. In Fergusonv. City of Charleston (2001), the United States Supreme Court struck down a program under which a hospital tested pregnant patients for illegal narcotics use without their informed consent and reported patients who refused prescribed rehabilitation to law enforcement authorities. A somewhat different concern is the legal implications of government intervention in the event that a pregnant woman refuses a blood transfusion needed to save her life, or a cesarean delivery physicians believe to be in the best medical interest of the unborn. Some view Roe v. Wade as holding by implication that women have a broad right to control—and even abuse—their own bodies without regard to fetal wellbeing. Yet a plausible counterview is that Roe does nothing more than immunize women from prosecution for early abortions, if they choose to have them.
Abortion is controversial in many countries. Violence aimed at abortion providers has occurred both in Canada and the United States. In May 1992 a bomb blast blamed on antiabortion radicals destroyed the Morgentaler abortion clinic in Toronto. Rare in Canada, dozens of abortion clinic bombings and fires have occurred in the United States. Antiabortion activists throughout the United States have demonstrated at abortion sites to focus attention on their concerns. Generally peaceful, these demonstrations have sometimes become blockades that interfere with the ability of patients and staff to utilize facilities where abortions are believed to take place. Demonstrators have sometimes resorted to harassment, noise nuisance, property damage, and murder. The shooting deaths of two Florida physicians outside abortion facilities in 1993 and 1994 dramatized the conflict between protesters and clinics. The United States Congress passed the Freedom of Access to Clinic Entrances Act of 1994 in an effort to assure freedom of access to reproduction services. The act makes acts of obstruction and interference at places providing reproductive services a federal offense punishable by fines and imprisonment.
The right to abortion has been held by some state courts to provide a rationale for permitting "wrongful birth" or "wrongful life" lawsuits. In wrongful birth actions, parents sue healthcare providers to recover from emotional distress and expenses connected with raising children with congenital abnormalities. In wrongful life actions, disabled offspring sue healthcare providers alleging that professional negligence caused their births into lives of pain, suffering, and extraordinary expenses. Citing Roe v. Wade, in Berman v. Allan, 80 N.J. 421, 404 A2D 8 (1979), the New Jersey Supreme Court allowed a wrongful life lawsuit for professional negligence to go forward against the obstetricians of a woman who alleged that she was not offered amniocentesis and, as a consequence, was denied an opportunity to exercise her legal right to abort a fetus affected by down's syndrome. Pennsylvania and several other states have refused to permit wrongful birth or wrongful life suits. Permissive jurisdictions stress the fairness of compelling negligent physicians to share the economic burdens borne by the families of the disabled. However, some policy makers believe such suits imply disrespect for the human life and for the right to life of disabled persons.
Abortion rights and free-speech rights clash in the context of conflicts over abortion clinic protests. Women have a legal right to seek abortion without highly offensive intrusion, physical assault, and violence. These rights come into play where, for example, protesters block access to clinics, or broadcast video of clinic patrons over the Internet or on public access television. But antiabortion protesters have a First Amendment right to freedom of speech, expression, and assembly. Citing the First Amendment in Schenckv. Pro-Choice Network of Western N.Y. (1997), the Supreme Court refused to uphold an injunction that created a "floating buffer zone" with a 15-foot radius around persons utilizing abortion facilities. Seeking to balance the rights of clinic users and protestors, in Hill v. Colorado (2000), the Court upheld a statute creating a narrow, 8-foot "bubble zone" around abortion clinics as a reasonable restriction of protestors' free speech. Following the murders of physicians who performed abortions, a federal appeals court in Planned Parenthood of the Colom./Willamette, Inc. v. Am. Coalition of Life Activists (2002) held that the federal Freedom of Access to Clinics Act's definition of a violent threat extended to the circulation by antiabortion activists of "guilty posters" targeting specific abortion providers. Some federal courts have been reluctant to enjoin abortion protestors accused of actual or threatened violence on the basis of state or federal statutes, such as the Ku Klux Klan Act, not clearly enacted for that purpose. In National Organization for Women v. Scheidler (1994), however, the Supreme Court determined that the federal Racketeer Influences and Corrupt Organizations (RICO) statute could apply to a coalition of antiabortion groups alleged to be members of a nationwide conspiracy to close abortion clinics. The alleged conspirators unsuccessfully argued that RICO applies only to conspiracies in which the alleged racketeers act for the sake of economic gain rather than out of religious, moral, or political conviction. The Court found that acts that did not generate income for alleged racketeers but that adversely affected businesses such as abortion clinics were potentially conspiratorial under the RICO statute. The victory for proabortion rights groups was undercut by a later Supreme Court decision, Scheidler v. National Organization of Women (2003), which held that antiabortion protesters interfering with the property right of lawful abortion did not amount to racketeering acts of extortion required by the RICO statute.
In sum, the practice of abortion raises numerous legal issues in the jurisdictions that permit it. Because so many oppose abortion on religious and moral grounds, abortionrelated questions of legal policy will remain especially complex in the United States and other pluralistic societies. In addition, should reproductive technologies for creating, preserving, and terminating gametes and fetuses continue to proliferate, the number of legal concerns about reproductive rights and responsibilities is as likely to expand as to contract.
anita l. allen (1995)
revised by author
SEE ALSO: Adoption; Autonomy; Conscience; Conscience, Rights of; Double Effect, Principle or Doctrine of; Embryo and Fetus; Genetic Testing and Screening: Reproductive Genetic Testing; Harm; Human Dignity; Infanticide; Life; Maternal-Fetal Relationship; Moral Status; Population Policies; Women, Historical and Cross-Cultural Perspectives; and other Abortion subentries
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