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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.
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