Before the 1820’s abortion was legal across the United States until the mother experienced the “quickening,” a subjective stage in pregnancy when the baby’s movements are felt. After the quickening abortion was illegal in any circumstances.
In 1821 Connecticut passed the first state statute to criminalize abortion, and every state had abortion laws by 1990.
This drive to make abortion illegal came from two directions. The first was the American Medical Association who, in 1857, began to lobby for anti-abortion laws partly to restrict their competitors, i.e., midwives, and partly to prevent women limiting their childbearing and being able to enter the workforce, especially the field of medicine.
The second driving force was AMA anti-abortion campaign, Dr. Horatio Storer. Dr. Storer believed that “whites should be populating the country, rather than blacks, Catholics, Mexicans, Chinese or Indians.” He asked “Shall these regions be filled by our own children or by those of aliens? This is a question our women must answer; upon their loins depends the future destiny of the nation,”
So, abortion was made illegal to keep women out of the workplace and to encourage the growth of the white Protestant population.
16 The Comstock Law, 1873
In 1873 the United States Congress, under the Grant administration passed the Comstock Law which suppressed “trade in and circulation of, obscene literature and articles of immoral use.”
This law made it illegal to use the US Postal Service, which was basically the only mail and parcel service available at the time, to send:
- Sex Toys
- Personal letters that alluded to any sexual content
- Any information about the above items.
An abortifacient is a substance that induces an abortion, and they have been commonly used throughout history. So common was their use and so easy was their availability, that women would take abortifacients before the “quickening” and would describe their actions as ‘restoring the menses’ or ‘bringing on a period.’ This phrase let everyone know exactly what had occurred and held no stigma.
15 Griswold v. Connecticut, 1965
The first major court challenge to the legislation that had grown up around women’s reproductive health and therefore had an impact on abortion was Griswold v Connecticut.
The case centered around the Connecticut Comstock Law that prohibited any person from using “any drug, medicinal article or instrument for the purpose of preventing conception.” At this point in time conception was regarded as the moment an egg was fertilized, and therefore contraceptives that prevented the implantation of a fertilized egg were abortifacients and illegal.
The Supreme Court voted 7-2 to invalidate the law because it violated the “right to marital privacy.” This established the legal basis for the right to privacy with respect to intimate practices.
Following the case, the American College of Obstetrician and Gynecologist clarified that conception is implantation and as a consequence birth control methods that prevented implantation were classified as contraceptives instead of abortifacients.
14 US v. Vuitch, 1971
Milan Vuitch was an abortion provider in DC where abortions were allowed when “necessary for the life or health of the woman.” After he had been arrested for providing abortion services outside of the law’s restrictions, Vuitch challenged the term “health” in the law as being unconstitutionally vague.
Judge Gerhard A Gesell agreed and dismissed the case against Vuitch saying the law failed to give “sufficient certainty” about what was meant by “health.” This finding was the first Federal Court decision to declare an abortion law unconstitutional.
The decision also treated abortion as a medical procedure no different from any other and agreed that a doctor’s professional judgment should be considered in the decision over whether or not an abortion was legal.
13 Roe v. Wade, 1973
Roe V. Wade challenged to the law in Texas that only allowed abortion in order to save a woman’s life.
The argument was:
Does the 14th Amendment to the Constitution embrace the right of a woman to obtain an abortion and in doing so nullify the Texas law?
The Court ruled 7 – 2 that the right to privacy under the Due Process Clause of the 14th Amendment extended to a woman’s right to have an abortion. However, they also ruled that the state had an interest in regulating abortions to ensure women’s health and to protect the potential life she was carrying, an interest that became stronger as the pregnancy progressed.
The trimester framework said:
- 1st Trimester – The decision was exclusively that of the mother and state law by regulating first-trimester abortion was unconstitutional.
- 2nd Trimester – The state could only legislate only to protect the woman’s health.
- 3rd Trimester – States able to restrict abortion except to where necessary to save a woman’s life.
12 Doe v. Bolton, 1973
Doe v. Bolton was decided the same day as Roe v. Wade. It challenged Georgia’s State that only residents of Georgia were allowed an abortion and then only after rape or incest, due to severe fetal deformity and severe or fatal injury to the mother.
The law also required a woman wanting an abortion to obtain approval, in writing, from three separate doctors and also be approved by a special three-member committee.
The judges agreed unanimously that the conditional restrictions of the law were unconstitutional and put an undue burden on a woman seeking an abortion. It did, however, uphold the residency requirement and the obligation to obtain professional medical approval.
The judgment also explicitly stated, for the first time, that a physician was qualified to make the medical judgment as to whether an abortion was medically necessary with consideration to all areas of health including physical, emotional, psychological, familial and the woman’s age.
11 Hyde Amendment, 1976
The Hyde Amendment was passed in September 1976 by a 207 – 167 vote in the House of Representatives and was the first major legislative gain by the Pro-Life movement.
The provision bars the use of federal funds to pay for abortion except in cases where the pregnancy arises from incest or rape or if it is needed to save the life of the mother. To qualify under the incest or rape provision, the crime must have been reported to the appropriate authorities, a law enforcement agency or public health service, in a timely manner.
The amendment is significant because it affects mostly Medicaid recipients who currently number almost 40 million women in the United States. That meant that 20% of all American women who were of reproductive age were unable to access abortion services through Medicaid unless they meet one of the three exceptions.
10 Bellotti v. Baird, 1976
This case upheld the Massachusetts Unborn Children Act that required teenage minors (women under 18) to secure parental consent in order to obtain an abortion. Baird argued that this violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
The Massachusetts law said that the minor parent of an unborn child must obtain parental consent for an abortion and that if one or both of the minor’s parents refused to consent then consent might be obtained by appearing in front of a judge and asking them to rule in favor of the abortion.
Even if the minor in question was able to demonstrate a level a maturity to make the decision the court was also empowered to refuse to grant an abortion if the judge saw fit. Consequently the minor had no opportunity to obtain an abortion without informing her parents.
9 Bellotti v. Baird, 1979
In an 8-1 decision, the court found that the Massachusetts Unborn Children Act infringed on the constitutional right of a woman to choose to terminate her pregnancy. The judges stated:
“neither the Fourteenth Amendment nor the Bill of Rights is for adults alone,” and that minors were entitled to constitutional protection.
However, the decision declined to give children the same rights to abortion that Roe V. Wade gave to adult women. The judge’s opinion highlighted the vulnerable nature of children, their potential lack of ability to make critical decisions, and the importance of a parent’s role in a child’s life.
They ruled a law could require parental consent if it provided a way for the minor to obtain judicial permission for the abortion without parental notification. Any such law must have four elements:
- The minor must be able to demonstrate her maturity
- If she cannot, she has the opportunity to convince it is in her best interest
- The procedure must keep her anonymous
- Must be fast enough to allow her to have the abortion
8 Harris v. McRae, 1980
The Harris v. McRae case challenged the Hyde Amendment barring the use of federal funds being used for abortion.
In a 6-5 result, the Supreme Court of the United States agreed that States who participated in Medicaid were not required to fund abortions. The judges ruled that the funding restrictions of the Hyde Amendment did not violate the Fifth Amendment because poverty was not a “suspect classification.” Neither did it violate the Establishment Clause of the First Amendment.
The court stated that a woman’s freedom of choice did not carry with it a “constitutional entitlement to the financial resources to avail herself of the full range of protected choices.”
7 Webster v. Reproductive Health Services, 1989
This decision upheld a Missouri law that placed some restrictions on not only the use of state funds but on the use of state facilities and employees for performing or counseling on abortions.
The preamble of the Missouri law said “the life of each human being begins at conception,” and that “unborn children have protectable interests in life, health, and well-being.” It was decided that because this was in the preamble of the law, it did not contradict Roe v Wade and should have no real impact on access to abortion.
In addition, the majority decided that the right to an abortion from Roe v Wade did not include the right to have the government help you have one.
6 Planned Parenthood v. Casey, 1992
When this case was brought before the Supreme Court, the political affiliations of the bench had changed, making it the first time that Roe v Wade had a genuine chance of being overturned. Planned Parenthood challenged the constitutionality of several of Pennsylvania’s law provisions governing abortion including the provision that a married woman must obtain spousal consent, a definition of medical emergency and a requirement for a woman to be given certain information and wait 24 hours before getting the abortion.
The court upheld the right under Roe v Wade to have an abortion and changed the standards for “undue burden.” It also struck down the three-trimester framework of Roe v Wade and allowed the state to regulate abortion at any stage of pregnancy and to do so for reasons other than to protect the health of the mother. This meant that a state’s interest in and regulation of potential life could now arguably extend throughout pregnancy and that the state had an interest in preserving fetal life.
5 Stenberg v. Carhart, 2000
By this stage, the major questions of the right to an abortion, reporting and consent provisions and the state’s authority to control these rules had been settled by the Supreme Court, and there was little likelihood that any substantive changes might be made.
This case was bought by Leroy Carhart, a Nebraska abortion provider who argued that the Partial Birth Abortion law was unconstitutional because it would prohibit other abortion methods and because it did not provide an exception for non-life-threatening circumstances.
Partial Birth Abortion is not a medical term but a phrase created and used by the lawmakers. It describes a procedure as “any abortion in which the life of the fetus is terminated after having been extracted from the mother’s body at the time the life is ended.”
4 Gonzales v. Carhart, 2007
After Carhart’s win in 2000, the US Attorney General appealed the Supreme Courts ruling on Partial Birth Abortion. The court held that this case was different from Stenberg v Carhart because the Nebraska law had been too vague and that the federal Partial Birth Abortion Act laid out appropriate details.
It was decided that the Partial Birth Abortion Act did not place an undue burden on women wanting to have an abortion. The court found that there is “uncertainty [in the medical community] over whether the barred procedure is ever necessary to preserve a woman’s health”; and in the past the court “has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty.”
3 Gonzales v. Carhart And Gonzales v. Planned Parenthood, 2007
After the Partial-Birth Abortion Ban Act was upheld it was further challenged due to the fact it did not have an exception to allow the procedure to go forward if it was to protect the woman’s health.
Congress had argued that “there exists substantial record evidence upon that a ban on partial-birth abortion is not required to contain a ‘health’ exception because the facts indicate that a partial-birth abortion is never necessary to preserve the health of a woman.” The court agreed and upheld the Partial-Birth Abortion Ban Act.
Justice Kennedy, speaking for the majority spoke about a woman’s place in society and called into question their decision-making ability. He also said that in the face of “medical uncertainty” lawmakers could overrule a doctor’s medical judgment and that the “State’s interest in promoting respect for human life at all stages in the pregnancy” could outweigh a woman’s interest in protecting her health.
2 Burwell v. Hobby Lobby, 2014
Hobby Lobby is a family owned and run company who claimed that having to pay for insurance coverage for contraception violated their right to religious freedom under the Religious Freedom Restoration Act of 1993.
The health care law and related regulations require many employers to provide female workers with comprehensive insurance coverage for a variety of methods of contraception. Hobby Lobby and a second company Conestoga Wood objected to being forced to cover intrauterine devices and morning-after pills, saying they were akin to abortion.
The Supreme Court agreed and ruled that federal religious-freedom laws applied to “closely held” for-profit corporations run on religious principles and that such corporations could uphold their religious beliefs.
1 Whole Woman’s Health v. Hellerstedt, 2016
Considered the most significant abortion rights case to come before the Supreme Court since Planned Parenthood v Casey, Whole Women’s Health v Hellerstedt argued that a Texas law created an undue burden for women trying to obtain an abortion.
The Texas law required abortion providers to have:
- Admitting privileges at a hospital within 30 miles
- The same standards as ambulatory surgical centers
- Upgrade their building, safety provisions, staff and carparks to hospital standards
Whole Woman’s Health argued that this was expensive and unneeded and was an attempt to restrict the availability of abortions. They pointed out the state had waived the requirements for 78% of the ambulatory surgical centers but for none of the abortion clinics.
The court decided that these regulations did not provide any health benefits to the women seeking abortions and so placed an undue burden on access to abortions and violated the federal constitution.
Sources: CNN, The Supreme Court
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