Abortion Law: Who Decides And Approves?

Abortion law is a highly divisive issue in the United States, with laws varying significantly from state to state. The Supreme Court's 1973 Roe v. Wade decision decriminalised abortion nationwide, but this was overturned in 2022 by Dobbs v. Jackson Women's Health Organization, allowing individual states to regulate any aspect of abortion not preempted by federal law.

Prior to Roe v. Wade, abortion was not a significant issue of controversy, with most people holding to the traditional Protestant Christian belief that personhood began at quickening, between 18 and 21 weeks. However, in the 19th century, several states passed laws restricting abortion, and in 2022, 13 states had laws criminalising abortion, with several others having trigger laws in place to ban abortion should Roe v. Wade be overturned.

Abortion law in the US continues to be a contentious issue, with abortion-rights movements advocating for patient choice and bodily autonomy, and anti-abortion movements maintaining that the foetus has a right to live.

The legality of abortion varies by state

The legality of abortion varies significantly from state to state in the United States. In June 2022, the Supreme Court overturned Roe v. Wade, a 1973 ruling that had protected abortion rights at a federal level. This decision has allowed individual states to implement their own abortion laws, resulting in a complex and varied legal landscape.

Some states, such as Alabama, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, North Carolina, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, and West Virginia, prohibit abortion at all stages of pregnancy, with very few exceptions. In these states, abortion is only permitted to save the life of the pregnant individual, and in some cases, to preserve their physical health. Notably, there are no exceptions for rape, incest, or fatal fetal abnormalities in most of these states.

On the other hand, some states, including Alaska, Arizona, California, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Kansas, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and Wyoming, allow abortion up to a certain point in a woman's pregnancy, typically until the fetus is viable outside the womb. In some states, like California, Illinois, and New York, abortion is permitted after fetal viability if necessary to protect the life or health of the pregnant individual.

Additionally, a few states, such as Montana, North Dakota, and Ohio, fall into a grey area, with abortion laws that are currently being challenged in court. For example, in Montana, abortion is legal up to the point of fetal viability, pending the outcome of litigation over more restrictive laws passed by the state legislature.

The legality of abortion in the remaining states, including American Samoa, Guam, Northern Mariana Islands, and Puerto Rico, is less clear or subject to ongoing legal challenges. For instance, abortion services are currently unavailable in Guam due to a lack of local clinicians who provide them, and abortion is technically illegal in American Samoa and the Northern Mariana Islands.

The variation in abortion laws across the United States has resulted in a patchwork of access, with some states severely restricting or banning abortion, while others are actively protecting and expanding abortion rights. This disparity has significant implications for individuals seeking abortion care, as they may need to travel across state lines to access legal abortion services.

The Supreme Court's Roe v. Wade decision

The Court's decision was based on the interpretation that the Due Process Clause of the Fourteenth Amendment provides a fundamental "right to privacy", which protects a woman's liberty to choose to have an abortion. This right was deemed to be broad enough to encompass a woman's decision to terminate her pregnancy.

The Court, however, recognised that this right to privacy was not absolute and must be balanced against the government's interests in protecting women's health and prenatal life. It held that these interests became compelling at the point of fetal viability, after which states could prohibit abortion except when necessary to protect the life or health of the mother.

The Roe v. Wade decision was among the most controversial in US history, sparking ongoing debates about the legality and extent of abortion, the role of moral and religious views, and the methods employed by the Supreme Court in constitutional adjudication. The decision also reshaped the political landscape, radically reconfiguring the voting coalitions of the Republican and Democratic parties in subsequent decades.

The ruling was overturned by the Supreme Court in 2022, ending the constitutional right to abortion and allowing states to impose their own regulations on abortion.

The Supreme Court's Planned Parenthood v. Casey decision

In 1992, the Supreme Court's Planned Parenthood v. Casey decision reaffirmed the 1973 Roe v. Wade ruling, which prohibited states from disallowing abortion before foetal viability. However, the Court overruled two aspects of the Roe decision: the trimester distinction and the use of strict scrutiny for judicial review of government regulation of abortions.

The Pennsylvania Abortion Control Act of 1982 required:

• Women seeking abortions to be given certain information at least 24 hours before the procedure (the "24-hour waiting period")
• Informed consent of parents for minors, with a judicial bypass option when permission could not be obtained
• Married women seeking an abortion to notify their husband of their intent

The Supreme Court, in a decision written jointly by Justices O'Connor, Kennedy, and Souter, upheld the 24-hour waiting period provision and the informed consent provision for minors but struck down the spousal consent provision. The Court characterised the issue as one of "liberty" rather than "privacy", allowing for substantive due process analysis. Referring to past Supreme Court cases such as Griswold v. Connecticut (1965), Eisenstadt v. Baird (1972), and Carey v. Population Services International (1977), the Court emphasised the liberty interests and decisional autonomy of those seeking an abortion.

The Court applied stare decisis (the doctrine of looking at precedent) to re-evaluate Roe v. Wade. They analysed:

• The workability of Roe
• The extent to which people had reasonably relied on Roe's continued application and how their decisional freedom would be affected
• The relevance of Griswold's and Roe's ideas of personal autonomy and bodily integrity
• Whether advances in maternal health care and time had altered the factual assumptions underlying Roe

The Court acknowledged the highly controversial nature of abortion in society but maintained that this was a reason to uphold precedent and avoid politicisation.

Thus, the Court decided to uphold the core holdings of Roe regarding restrictions on pre-viability abortions. While the idea of "viability" remained, the Court noted that the point of viability had shifted to earlier in pregnancies. The Court allowed for state interest in both the potential life of the foetus and the woman's health. Post-viability, the state's interest in potential life could override the right to abortion, except where necessary to protect the life or health of the mother. Pre-viability, the Court upheld the protection of a woman's right to abortion but rejected Roe's "rigid trimester framework."

Instead, the Court ruled that states could not impose an "undue burden" on individuals seeking to abort non-viable foetuses. An "undue burden" was considered to arise if the purpose or effect of the state restriction substantially impeded individuals' ability to seek abortions.

Applying the undue burden test to the facts, the Court found the spousal notification requirement to be an undue burden that impeded pregnant individuals' decisional freedom. Thus, the Court struck down this portion of the Pennsylvania law as unconstitutional. However, the Court upheld the 24-hour waiting period provision and the parental consent requirement, as the state was acting in the interest of informed consent.

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

The case concerned the constitutionality of a 2018 Mississippi state law, the Gestational Age Act, which banned most abortion operations after the first 15 weeks of pregnancy, except in cases of medical emergencies or severe fetal abnormalities. Jackson Women's Health Organization, Mississippi's only abortion clinic at the time, sued Thomas E. Dobbs, a state health officer, arguing that the law violated the constitutional right to abortion established in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992).

The Supreme Court's decision in Dobbs v. Jackson Women's Health Organization had far-reaching implications. It overturned nearly five decades of precedent and profoundly changed American society surrounding abortion. The decision sparked protests and counter-protests across the country and led to a wave of new abortion restrictions at the state level. It also raised concerns about the stability of other rights that are not explicitly enumerated in the Constitution, such as same-sex marriage and contraception.

The Court's ruling in Dobbs v. Jackson Women's Health Organization was highly divisive, with strong reactions from both supporters and opponents of abortion rights. The decision was praised by anti-abortion activists and politicians, who celebrated the return of abortion regulation to the states. On the other hand, abortion-rights advocates criticized the decision as a threat to women's rights and freedom. The ruling also sparked debates about the legitimacy of the Supreme Court and the role of judicial precedent in shaping constitutional law.

The Born-Alive Infants Protection Act

The BAIPA was based on H.R. 2175, which was introduced on June 14, 2001, and passed on March 12, 2002. It was reported by the Committee on August 2, 2001, and passed the House on March 12, 2002, and the Senate by unanimous consent on July 18, 2002. The original author of the bill was Congressman Charles T. Canady of Florida, who had retired from Congress by the time the bill was passed. The bill was approved by the committee on July 12, 2001, with 25 of the 32 representatives voting for it, 2 against, and 10 not present during the vote.

The BAIPA is an important piece of legislation that affirms legal protection for infants born alive after a failed attempt at induced abortion. It ensures that these infants are recognized as legal persons and are entitled to the same protections as any other newborn or person seeking medical care. The Act amends Chapter 74 of Title 18 of the United States Code by inserting a new section, "§ 1532. Requirements pertaining to born-alive abortion survivors." This section outlines the responsibilities of health care practitioners in the event of a child born alive after an abortion or attempted abortion, including providing the same degree of care as they would to any other child and ensuring immediate transportation and admission to a hospital. It also mandates the reporting of any violations to appropriate law enforcement agencies.

The BAIPA is a significant step in recognizing the rights and dignity of infants born alive after an attempted abortion. It ensures that these infants receive the necessary medical care and attention they deserve and establishes penalties for failing to comply with the requirements outlined in the Act.

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