Wednesday, November 20, 2019

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Legal Framework of the Abortion Debate

In the nineteen sixties, Texas law criminalized all abortions except those undertaken on medical advice for the purpose of saving the mother's life. In the early part of 1970 a single pregnant woman, who at the time wished to remain anonymous, challenged the constitutionality of the Texas criminal laws. A three judge District Court panel declared the Texas laws violated the woman's Ninth and Fourteenth Amendment rights. The Supreme Court, in 1973, affirmed, in relevant part, the District Court's ruling. The Supreme Court's decision in Roe v. Wade had three central parts. The Court affirmed: (1) a woman's right to choose an abortion without undue influence from the state in the first two trimesters; (2) the state's power to restrict abortions in the third trimester; and, (3) the state's interest in the woman's health and the potential life of the fetus. The Court's decision was grounded in a right to privacy implicit in the Constitution. Roe was not the final word on abortion, and since that decision the Court has been asked to address the issue on several occasions. Shortly after Roe, the Court reaffirmed and refined its decision.

In Planned Parenthood of Central Missouri v. Danforth, the Supreme Court struck down a spousal notification provision that required a woman seeking an abortion to notify her spouse before an abortion could be performed in the first twelve weeks of a pregnancy. In its holding, the Court reasoned that a state could not delegate to a spouse a veto power which the state itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy. Since the state could not regulate or proscribe abortion during the first stage, it could not delegate authority to any particular person to prevent abortion during that same period. Danforth is as informative for what it does not say, as for what it does. The Court's analysis in Danforth focused on a question of timing as much as anything else. The Danforth decision struck down a state law that regulated abortion pre-viability, and did so because the state had no authority to regulate abortion during that period. Implicit in Danforth is the understanding that the state may delegate its authority post-viability and may consider the father's reproductive interests.

In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court again reaffirmed its decisions in Roe and Danforth. The Court additionally refined its jurisprudence regarding abortion. In Roe and Danforth, the Court discussed fetal viability without clearly defining it, instead discussing a trimester framework that relied on what was the then state of medicine which acknowledged that a fetus was viable after two trimesters of gestation. The Court departed from that definition, defining viability generally as, that time when the fetus was potentially able to live outside the womb, albeit with artificial aid. By defining viability in this way, Casey allows for the use of technology in radically shrinking pre-viability.

The Court's jurisprudence on abortion makes at least one concept clear, that while a woman's interest in terminating an unwanted pregnancy is given primacy pre-viability, the state's interest is paramount post-viability. This concept was never clearer than in the Court's 2007 ruling in Gonzales v. Carhart. In Carhart, the Court upheld a state's ban on a late-term abortion procedure, reiterating the pre- and post-viability distinction. This distinction raises serious concerns regarding the future of reproductive rights.

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

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