Right to an Abortion?

The Issue:  Does the Constitution guarantee women the right to choose to terminate a pregnancy by having an abortion?
Introduction
No decision of the Supreme Court in the twentieth century has been as controversial as the 1973 Roe v. Wade decision holding that women have a right to choose to have an abortion during the first two trimesters of a pregnancy.  Attorneys for Roe had suggested several constitutional provisions might be violated by the Texas law prohibiting abortions except when necessary to save the life of the mother.  The law was said to have been an establishment of religion in violation of the First Amendment, unconstitionally vague (the ground used in Blackmun's first draft of his opinion), a denial of equal protection of the laws, and a violation of the Ninth Amendment (which states that certain rights not specified in the first eight amendments are reserved to the people).  The Court in Roe chose, however, to base its decision on the Due Process Clause of the Fourteenth Amendment and the so-called "right of privacy" protected in earlier decisions such as Griswold v Connecticut (striking down a ban on the use, sale, and distribution of contraceptives).  Deciding HOW to protect the right to an abortion proved as difficult.  Justice Blackmun's approach, one clerk at the time said, "As a practical matter, was not a bad decision--but as a constitutional matter it was absurd."  Roe's trimester-based analysis generally prohibits regulation of abortions in the first trimester, allows regulation for protecting the health of the mother in the second trimester, and allows complete abortion bans after six months, the approximate time a fetus becomes viable.


Norma McCorvey, the woman who as "Jane Roe" challenged the abortion law of Texas in Roe v. Wade.

THE STORY BEHIND ROE v WADE

It was assumed by most observers of the Court in 1992 that Planned Parenthood v Casey would be the vehicle for for overturning Roe.  Instead, three swing members of the Court (Souter, O'Connor, Kennedy) joined in an opinion retaining the core right recognized in Roe while rejecting the trimester-based framework.  The three justices used stare decisis to justify their decision. Casey leaves courts to grapple with abortion regulations through application of a new test: Does the regulation in question place an undue burden on a woman's right to choose an abortion?  Using this new test, courts have upheld some abortion regulations (such as 24-hour waiting periods) while striking down others.

The Court Upholds a Federal Ban on "Partial Birth" Abortions

In 2007, in the case of Gonzales v Carhart,  the Supreme Court upheld a federal law banning so-called "partial birth abortions."  Congress, in its findings, had declared the late-term abortion procedure to be "never medically indicated."  Certain medical associations disagreed with this finding, and the Court did not rule out as applied challenges to the law in which individual women might argue that the procedure is the best available to preserve their health--although, given the time and expense involved in bringing such a challenge, this option might not be very viable.  (Will a doctor, in the middle of an abortion in which he decides  the "partial birth" procedure would be less dangerous, really run off to a court to get permission?) Justice Kennedy provided the key fifth vote in the case.  The case did not purport to overrule a decision seven years earlier in which the Court (with Justice O'Connor providing the key vote) had struck down a Nebraska law banning the same procedure as "an undue burden" on the women's right to an abortion, but instead relied on the special deference that it said should be given to congressional findings.

Roe v Wade is Overruled by Dobbs
Fifty years of constitutional protection for the right to choose an abortion came to end in 2022, when the Court, by a 5 to 4 vote, decides overrule Roe v Wade in the case of Dobbs v Jackson Women's Heath Center.  In an opinion written by Justice Alito the Court said that the right of abortion lacked any textual grounding in the Constitution and was grossly wrong the day it was decided.  Moreover, Alito wrote, none of the reasons for behind the policy of stare decisis were applicable in the case of a right to an abortion, dismissing (for example) that there is any serious reliance issue at stake and suggesting that the "undue burden" test of Casey has proved unworkable.  While Alito's opinion stated that the decision need not case doubt on other decisions resting on the constitutional right to privacy (e.g., the right to contraceptives or privacy protection for consensual sexual activities between adults), the logic of the opinion suggests otherwise and Justice Thomas, in a concurring opinion, made clear his desire to revisit those cases.  The decision sends the question of abortion rights back to the 50 states, or to the federal government, which are now free to protect or restrict abortion rights as they choose.  Chief Justice Roberts, in a concurring opinion, would have upheld the Mississippi ban on abortions after 15 weeks, but did not join in the decision to overrule Roe, noting that it was not necessary to deciding the case befiore the Court.   Writing for the three dissenters, Justice Kagan expressed sorrow for "the many millions of women who have today lost a fundamental constitutional protection." 

Links
National Abortion Rights League
NOW's Abortion Rights Page
National Right to Life Committee
Summary of Roe v Wade Arguments

Cases
Roe v. Wade (1973)
Planned Parenthood v. Casey (1992)
Dobbs v Jackson Women's Heath Center (2022)

The Due Process Clause:

No State shall...deprive any person of life, liberty,
 or property, without due process of law.
 


Planned Parenthood Billboard 

Questions

1. Is there a more solid basis for finding a right to an abortion in the Constitution than there is for finding a right to contract, the right recognized in Lochner v. New York? 
2.  Is the right of privacy implicated when a woman has an operation performed on her in a public place (hospital or clinic) by a person she probably barely knows?
3.  Which seem closer to the core of an intelligible privacy doctrine--an abortion or consensual sex between adults?
4.  If you believe that the Constitution doesn't protect the right to choose an abortion, does it prevent a state from requiring that all couples be sterilized after the birth of their second child?  If the Constitution does prevent the latter, where is the prohibition found?
5. Might there be a constitutional right that protects the liberty of doctors to give the medical care that they see fit?
6.  Why isn't the state interest in protecting life compelling until viability?
7. Is there a state interest in preserving respect for life that is weakened by allowing abortions?  If abortions are not immoral, would you call them morally dubious?  Why is infanticide morally wrong (if you believe that to be the case) and abortion not immoral?
8.  On the other hand, why is aborting a first-trimester fetus (before the fetus has significant neurological development, emotions, or any other critical attributes of humanness) any more more immoral than killing, for example, pigs that do have thoughts and emotional lives?  Could you argue, in fact, that killing a pig is the more immoral act?
9.  Is the argument for extending full protection to a one-month -old embryo really a religious argument?
10.  Who has the better of the argument on the issue of stare decisis and the Roe--Justice Scalia or the three swing justices?
11.  When is a regulation an "undue burden"?  Where does this test come from?  If the right to choose is really a constitutional right, why go on to ask whether the regulation unduly burdens that right?  Do we ask whether a modest tax on public speaking would unduly burdens speech?
12.  After Dobbs, many states quickly imposed near total bans on abortion and threatened legal action against state residents who traveled out of state, or assisted a woman in traveling out of state, to get an abortion.  Do such laws violate the constitutional right to travel?  How will this all play out/



Comparison of the Roe and Casey Regulatory Frameworks
Roe Framework
No regulation permitted
 Can regulate abortions to protect the health of the mother
 States free to ban abortions to protect fetal life
1
 2
 3
 4
 5
 6
 7
 8
 9
MONTH OF PREGNANCY

Casey Framework
Can regulate abortions if not undue burden on right
 Viabi-
lity?
 States free to ban abortions to protect fetal life
1
 2
 3
 4
 5
 6
 7
 8
 9
MONTH OF PREGNANCY
Right to Abortion: Casey v Planned Parenthood of Pennsylvania (1992)

BLACKMUN
STEVENS
O'CONNOR
SOUTER
KENNEDY
 5
TO
4
REHNQUIST
SCALIA
WHITE
THOMAS
The Court ruled 5 to 4 to affirm the central holding of Roe v Wade, that women have a right to have an abortion.  In so doing, three justices (Kennedy, O'Connor, and Souter) abandoned the rigid trimester framework of Roe and announced that states had a right to regulate in the field so long as the regulations placed no "undue burden" on the right of women to have an abortion.  Blackmun and Stevens would have affirmed Roe in its entirety.  The four dissenting justices would have overruled Roe.

"Partial-Birth" Abortion: Gonzales v Carhart (2007)

KENNEDY
ALITO
SCALIA
THOMAS
ROBERTS

5
TO
4
STEVENS
BREYER
GINSBURG
SOUTER
The Court, voting 5 to 4, upheld a federal law banning so-called "partial birth abortions" (which Congress declared were "never medically indicated") .    The Court, in an opinion by Justice Kennedy, did not rule out "as applied" challenges to the law.
  Exploring Constitutional Conflicts Homepage