A Legal History of Abortion in America Current Issues - LHS.

A Legal History of Abortion in America

Current Issues - LHS

Definitions

• Abortion – induced termination of pregnancy

• Due Process – administering justice according to est. rules and principles

• Right to Privacy – non-constitutional legal right to be free of unsanctioned intrusion

• Federal Court System

• Trimester – one third of length of pregnancy (13 wks)

Pre 1973 Abortion Law

• Comstock Law (1873)• Federal law enacted

prohibiting "obscene, lewd, and/or lascivious" materials through the US mail (ex.: pornography)

• Also included materials concerning education about contraceptives or abortion

• Also made illegal sending actual contraceptives or abortion equipment through mail


• Generally, abortions themselves were a matter of state, not federal law• Each state legislature passed its

own laws regarding abortion• Issues included legality, availability,

consent required, minimum age requirements

• By 1910, all but one state had criminalized abortions except where necessary, in MD’s opinion, to save mother’s life

• Result = Illegal, or “back alley” abortions

Pre-1973 Abortion Law

Abortion laws in the United States prior to Roe v. Wade

=> Illegal

=> Legal in cases of rape.

=> Legal in cases of danger to

woman's health.

=> Legal in cases of danger to

woman's health, rape or incest, or likely

damaged fetus.

=> Legal upon request.


• Types of Illegal abortions• Self induced abortions through

“natural” methods• Abortionists who might have

had little medical training• Unsanitary conditions (home or

dirty clinic)• Thousands of women were

treated in hospitals after illegal abortion performed; many died from their injuries

• Private physicians also performed abortions

• Expensive, exclusive option


• Liberalization of abortion law• 1936: Federal appeals court

ruled that gov’t couldn’t interfere with doctor prescribed contraceptives

• Griswold v. CT (1965): USSC ruled contraceptives could be bought by married couples w/o restriction

• Eisenstadt v. Baird (1972): extended contraceptive legality to unmarried couples

Estelle Griswold

Roe v. Wade (1973)

• Case arose in Texas• TX law made abortions

illegal except in case of rape, incest

• “Jane Roe” became pregnant and sought an abortion

• District court issued an injunction (a legal order saying “STOP!”) against the TX law

• Wade, the DA, filed an appeal

Roe v. Wade (1973)

• Case filed in 1970; due to length of case, baby born and put up for adoption

• USSC heard case and issued its 7-2 decision in January 1973

Roe v. Wade decision

• Majority found women had a “fundamental right” to an abortion• Individuals have personal

liberty, based on 14th amendment EP / DP clauses

• Gov’t should not interfere with a person’s personal liberty

• “Personal liberty” included woman’s right to an abortion

Roe v. Wade

• USSC also found state had important interests in regulating abortions• Interest in reducing risky illegal

abortion procedure• Interest in protecting life of

unborn fetus

• BUT USSC ruled that privacy right of woman outweighed states’ interest in regulating abortion, requiring balancing of interests

Roe v. Wade

• Allowable regulation of abortions• 1st trimester: no

restrictions allowed on abortions

• 2nd trimester: state may only restrict abortion in ways related to health of mother

• 3rd trimester: state can choose to restrict or forbid abortion to protect life of fetus

Effect of Roe v. Wade

• Effectively created right to abortion on demand, in USA

• Reported abortions since 1973, in America, total 50,766,331, according to Planned Parenthood

Number of abortions, by year

Post Roe v. Wade

• Evolving abortion law• Women don’t need consent

of spouses or parents, if over 18 years, to have an abortion (1976)

• Minor girls don’t need parental consent to have an abortion, if they can show they are mature enough to make decision (1978)

• No obligation for public funding of abortions (1980)

Post Roe v. Wade

• Evolving abortion law• 2nd trimester abortions do

not have to be performed in a hospital (clinic ok) (1983)

• States may not verbally discourage women from having an abortion (script read at clinic) (1986)

• States may not encourage women to seek an abortion (1991)

Casey v. Planned Parenthood (1992)

• Major shift in abortion law• State law required 24

hour waiting period and pro life pamphlet for abortions in 1st trimester

• Minor girls required consent of at least one parent

• Represented a significant weakening of Roe v. Wade

A Legal History of Abortion in America Current Issues - LHS.

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