LifeLink: Abortion Law in America

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November 2005

Abortion law in America is often misunderstood. Organizations that promote abortion often misrepresent current law by inferring that abortion is only legal in the first three months of pregnancy. However, in America, abortion is totally legal throughout the entire pregnancy for any reason as decided by Roe v. Wade and Doe v. Bolton in 1973. In 1992, Planned Parenthood v. Casey set a precedent allowing states to pursue legislation such as parental involvement, informed consent, fetal homicide, and other types of laws.

Roe v. Wade (1973)

Roe v. Wade overturned all state laws banning abortion. The Supreme Court constructed a constitutional right to abortion based on an implied right to personal privacy (although such right to privacy is never explicitly mentioned in the Constitution). Roe v. Wade also robbed the unborn baby of personhood by arbitrarily determining that a fetus is not a person but a “potential life” and does not have a constitutional right of his/her own. Roe determined a woman’s privacy is most necessary in the first trimester and that states may not regulate abortion for any reason. During the second trimester, the state may regulate abortion only to protect the health of the woman. During the third trimester, the state may regulate or prohibit abortion to prevent the death of the mother.

Doe v. Bolton (1973)

Doe v. Bolton catastrophically modified Roe v. Wade by ruling that the right to abortion could not be limited by the state if abortion was sought for maternal health reasons. The Court then defined health as “all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the well-being of the patient.” This health exception expanded the right to abortion throughout the entire pregnancy for any reason, thereby striking down the few legal protections left in place by Roe.

Planned Parenthood v. Casey (1992)

The Casey ruling restored some authority to the states by allowing them to restrictabortion according to the state’s best interest. Since then, many states now require a waiting period between seeking and obtaining an abortion, mandate that doctors offer detailed medical information before obtaining consent for the abortion, and protect women’s health by holding abortion clinics to the same standards as other medical facilities.

Stenberg v. Carhart (2000)

Stenberg declared that state bans of partial-birth abortion are unconstitutional. U.S. Congress has passed a federal ban three times, and many states had passed similar bans—all of which were rendered too broad and therefore unconstitutional under Stenberg. In 2003, Congress revised and then successfully passed the federal ban later signed by President Bush. The revised ban more clearly emphasizes that the child is indeed emerging from the birth canal while still permitting PBA to prevent the death of the mother. Due to many ongoing court challenges across the country, the federal ban remains unenforceable, but the various courts are expected to rule on these challenges within the coming year.