The Future Of Abortion Laws: Will They Stand?

The future of abortion laws in the United States is uncertain. In June 2022, the Supreme Court overturned Roe v. Wade, a 1973 ruling that had established abortion as a fundamental right. This decision has left the issue of abortion rights in the hands of individual states, and the laws vary widely across the country.

Currently, abortion is illegal in 13 states, while 21 states and the District of Columbia have laws or constitutional protections in place to safeguard abortion rights. However, the situation is fluid, with states passing new laws and courts issuing rulings that can change the legal status of abortion.

Some states have passed laws that will ban abortion entirely, while others have introduced restrictions, such as gestational bans or limits on the methods that can be used. At the same time, other states have moved to protect abortion rights, with some enshrining these rights in their state constitutions.

The impact of these changing laws is significant. People seeking abortions may now have to travel long distances to access care, and there are concerns that abortion bans will disproportionately affect marginalized communities. The situation is likely to remain in flux, with legal challenges ongoing and the potential for further changes at the state and federal level.

The Dobbs Decision

The Dobbs case involved Mississippi's Gestational Age Act, passed in 2018, which prohibited abortions after 15 weeks except in medical emergencies or cases of severe fetal abnormalities. The Jackson Women's Health Organization challenged the constitutionality of the Act in a federal district court, arguing that abortion is grounded in the Fourteenth Amendment, which asserts physical autonomy and body integrity as "essential elements of liberty".

The Supreme Court, in a divided opinion, upheld Mississippi's law and concluded that the Constitution does not protect the right to an abortion. The Court's majority opinion, written by Justice Alito, stated that the Constitution makes no express references to abortion and that abortion is not deeply rooted in the nation's history and traditions. The Court's decision returned the authority to regulate abortion to the states.

The Partial-Birth Abortion Ban Act

> An abortion in which the person performing the abortion, deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and performs the overt act, other than completion of delivery, that kills the partially delivered living fetus.

The Act prohibits any physician or other individual from knowingly performing a partial-birth abortion, except when necessary to save the life of a mother whose life is endangered by a physical disorder, illness, or injury. A physician who performs a partial-birth abortion and thereby kills a human fetus may be fined, imprisoned for not more than 2 years, or both.

The legislative history of the Act dates back to 1995, when the National Right to Life Committee obtained a paper on a late-term abortion method known as dilation and extraction (D&X) and began a campaign to outlaw the procedure. The Partial-Birth Abortion Ban Act was first passed by Congress in 1995 and 1997 but was vetoed by President Bill Clinton. The Act was passed again in 2003 and signed into law by President George W. Bush.

The constitutionality of the Act was challenged in court, with several U.S. district courts and courts of appeals declaring the law unconstitutional due to its omission of an exception for the health of the woman. However, the Supreme Court upheld the Act in 2007, finding that the statute does not violate the Constitution. The majority opinion argued that the Act defined the banned procedure more clearly than previous laws, while the dissent argued that the lack of a health exception "jeopardizes women's health and places doctors in an untenable position".

The Comstock Law

The law also contributed to the most notorious court case about reproductive rights, Roe v. Wade (1973). The controversy surrounding the Comstock Law brought issues of women's reproductive rights and privacy rights into the courts and the media, inspiring a growing opposition movement that eventually led to its overturn.

The law does not directly criminalize obscenity, criminal incitement, or abortion. Instead, it criminalizes the use of the mail, a common carrier, or an interactive computer service to convey these materials. Since abortion pills are used in over 50% of American abortions, the Comstock Act has been the focus of legal, political, and media attention following litigation and legislative activity by various actors in the U.S. anti-abortion movement.

The Hyde Amendment

The Affordable Care Act (ACA) includes a provision that applies the Hyde restrictions to Marketplace plans, ensuring that federal funds are only used to subsidize coverage for pregnancy terminations that endanger the life of the woman or that are a result of rape or incest. While marketplace insurers can offer a plan that covers abortions beyond the federal limitations, federal funds cannot be used towards this coverage.

The amendment has been both supported and opposed by different groups. Those who oppose abortion and object to the use of taxpayer money for abortion services have sponsored and supported the Hyde Amendment. On the other hand, advocates who support abortion rights are working to counteract these efforts through federal legislation such as the Abortion Justice Act and the EACH Woman Act, which aim to prohibit the federal and state governments from restricting insurance coverage for abortion in public and private health insurance programs.

The Born-Alive Infants Protection Act

The BAIPA affirms that infants born alive after an attempted abortion are legal persons and are entitled to the same protection under the law as any other newborn. It requires health care practitioners present at the time a child is born alive after an abortion to exercise the same degree of professional skill and care to preserve the life and health of the child as they would for any other child, and to ensure the child is immediately transported and admitted to a hospital.

The Act mandates that any health care practitioner or employee of a hospital, physician's office, or abortion clinic who has knowledge of a failure to comply with these requirements must immediately report the violation to state or federal law enforcement agencies. Penalties for violations include fines, imprisonment of up to 5 years, or both. Additionally, the intentional killing of a child born alive after an abortion is punishable as intentionally killing a human being.

The BAIPA also includes a provision barring the prosecution of the mother of a child born alive after an abortion attempt. Furthermore, it provides civil remedies for women upon whom an abortion is performed or attempted if the child is born alive, including monetary damages, statutory damages, and punitive damages. It also allows for reasonable attorney's fees to be awarded to both prevailing plaintiffs and defendants in civil actions under this Act.

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