The Law Behind Abortion Access

Abortion laws vary widely across the world, ranging from abortion being freely available on request to outright prohibition in all circumstances. In 2024, France became the first country to explicitly protect abortion rights in its constitution, while Yugoslavia implicitly inscribed abortion rights into its constitution in 1974.

In the United States, abortion was decriminalized nationwide in 1973 through Roe v. Wade, which established a minimal period during which abortion is legal, with more or fewer restrictions throughout the pregnancy. However, in 2022, Roe v. Wade was overturned in Dobbs v. Jackson Women's Health Organization, ending protection of abortion rights by the United States Constitution and allowing individual states to regulate any aspect of abortion not preempted by federal law.

The US Supreme Court's Roe v. Wade decision in 1973

The case was brought by Norma McCorvey, under the legal pseudonym "Jane Roe", who, in 1969, became pregnant with her third child. At the time, abortion was illegal in Texas, where McCorvey lived, except when necessary to save the mother's life. Her lawyers, Sarah Weddington and Linda Coffee, filed a lawsuit on her behalf in a US federal court against her local district attorney, Henry Wade, alleging that Texas's abortion laws were unconstitutional. A special three-judge court of the US District Court for the Northern District of Texas heard the case and ruled in her favour. The parties appealed this ruling to the Supreme Court, which issued a 7-2 decision in McCorvey's favour, holding that the Due Process Clause of the Fourteenth Amendment to the United States Constitution provides a fundamental "right to privacy", which protects a pregnant woman's right to an abortion.

The Court's decision in Roe was among the most controversial in US history, with some critics arguing that the ruling was a form of judicial activism. The decision also shaped the debate concerning which methods the Supreme Court should use in constitutional adjudication.

The Roe v. Wade decision recognized a constitutional "right to privacy" that protected a pregnant woman's decision to terminate her pregnancy. The Court ruled that this right to privacy was implicit in the liberty guarantee of the Due Process Clause of the Fourteenth Amendment. The Court did not, however, recognize a right to abortion in all cases, saying that state regulation protective of fetal life after viability was justified as it had "logical and biological justifications".

The Court formulated a timetable based on the notions of trimester and fetal viability, ruling that during the first trimester of pregnancy, the state could not intervene in a person's decision to have an abortion under normal circumstances. During the second trimester, the state could regulate abortion procedures to protect the health of pregnant persons, but it could not prohibit abortions altogether. From the end of the second trimester, which the Court identified as the starting point of viability, the state could regulate or prohibit abortions to protect the pregnant person's health or to preserve fetal viability.

The Roe v. Wade decision has been modified and narrowed by subsequent Supreme Court decisions but remains a pivotal ruling in the abortion debate in the United States.

The US Supreme Court's Planned Parenthood v. Casey decision in 1992

The US Supreme Court's 1992 ruling in Planned Parenthood v. Casey reaffirmed a woman's right to an abortion as granted in the 1973 Roe v. Wade case. However, the contentious 5-4 decision altered Roe and upheld a number of Pennsylvania abortion requirements cited in the case, while broadening the authority of states to regulate and restrict abortions.

The US Supreme Court's Dobbs v. Jackson Women's Health Organization decision in 2022

Dobbs v. Jackson Women's Health Organization was a landmark decision of the US Supreme Court in 2022 that reversed Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). The decision held that the US Constitution does not confer a right to abortion and that the authority to regulate abortion is returned to the people and their elected representatives.

The case concerned the constitutionality of Mississippi's Gestational Age Act, passed in 2018, which prohibited abortions after 15 weeks, except in medical emergencies or severe fetal abnormalities. Jackson Women's Health Organization, Mississippi's only abortion clinic at the time, challenged the Act's constitutionality, arguing that abortion is grounded in the Fourteenth Amendment. Mississippi, on the other hand, argued that the Constitution does not provide a right to abortion and that states can freely ban abortions if it is rationally related to legitimate government interests.

The Supreme Court, in a 6-3 decision, ruled that abortion is neither a constitutional right mentioned in the Constitution nor a fundamental right implied by the concept of ordered liberty. The Court held that abortion is not a protected right under the Constitution, overturning both Roe and Casey, and returned the decision regarding abortion regulations to the states.

The ruling in Dobbs v. Jackson Women's Health Organization had far-reaching consequences, with several states immediately introducing abortion restrictions or reviving dormant laws. The decision also sparked protests and counter-protests across the country and led to a significant increase in support for legalized abortion access.

The US Supreme Court's Gonzales v. Carhart decision in 2007

The Supreme Court's decision held that the Act did not impose an undue burden on the due process right of women to obtain an abortion, and that the Act did not conflict with previous decisions regarding abortion, such as Roe v. Wade and Planned Parenthood v. Casey. The Court's opinion, written by Justice Anthony Kennedy, was joined by Chief Justice John Roberts, Justice Samuel Alito, Justice Clarence Thomas, and Justice Antonin Scalia.

The Court found that there was there was "uncertainty over whether the barred procedure is ever necessary to preserve a woman's health", and that the Court "has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty." The Court also distinguished the case from Stenberg v. Carhart (2000), in which the Court dealt with related issues, by holding that the state statute at issue in Stenberg was more ambiguous than the federal statute at issue in Carhart.

The Court's decision also left the door open for as-applied challenges, citing its recent precedent in Ayotte v. Planned Parenthood of New England.

Justice Ruth Bader Ginsburg dissented, contending that the ruling was an "alarming" one that ignored Supreme Court abortion precedent and "refuse[d] to take Casey and Stenberg seriously." Ginsburg also took issue with the lack of a health exception, writing that "the absence of a health exception burdens all women for whom it is relevant—women who, in the judgment of their doctors, require an intact D&E because other procedures would place their health at risk."

The US Supreme Court's Whole Woman's Health v. Hellerstedt decision in 2016

In 2013, Texas passed a law, H.B. 2, placing a series of restrictions on abortion clinics within the state. The law included two provisions: one requiring abortion providers to have admitting privileges at a hospital within 30 miles, and another requiring abortion clinics to meet the same standards as ambulatory surgical centres and to upgrade their building, safety, parking, and staffing to meet the standards of a hospital room.

Whole Woman's Health, a group of plaintiffs, sued, arguing that these provisions created an undue burden for women seeking an abortion. On June 27, 2016, the US Supreme Court ruled 5-3 in favour of Whole Woman's Health, stating that the provisions do not offer medical benefits sufficient to justify the burdens upon access that each imposes. The ruling stated that:

> Each places a substantial obstacle in the path of women seeking a pre-viability abortion, each constitutes an undue burden on abortion access, and each violates the federal Constitution.

The Supreme Court's decision in Whole Woman's Health v. Hellerstedt reaffirmed the constitutional right to access legal abortion and set a precedent that was expected to strengthen constitutional protections for abortion access in the long term. However, in 2020, the Supreme Court struck down Roe v. Wade, ending the protection of abortion rights by the US Constitution.

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