LifeNotes

Courting Disaster

The following fact sheet will discuss and briefly summarize how the Supreme Court of the United States has ruled on cases involving abortion.

Roe vs. Wade

On January 22, 1973, the U.S. Supreme Court in two separate decisions (Roe vs. Wade and Doe vs. Bolton), ruled that any state abortion law in the future would have to meet the following guidelines.

First Trimester: During the first three months of pregnancy, the state must leave the abortion decision entirely to a woman and her physician.

Second Trimester: During the second three months, the state may only enact laws which regulate abortions in ways “reasonably related to maternal health.” This simply means that a state may determine who is qualified to perform the abortion and where such an operation may take place. The state may not, however, enact laws which safeguard the lives of the unborn.

Third Trimester: After the woman’s sixth or seventh month of pregnancy, the law may forbid her to have an abortion that is not determined to be necessary to preserve her “life or health.” The court went on to define the word “health” in such broad terms — i.e., social well-being — as to make it virtually impossible for a state to protect the unborn child even after the sixth or seventh month of pregnancy. (Doe vs. Bolton, 410 U.S. 179 stated . . . the medical judgment may be exercised in the light of all factors — physical, emotional, psychological, familial, and the woman’s age — relevant to the well-being of the patient. All these factors may relate to health. This allows the attending physician the room he needs . . . 410 U.S. at 192.)

Thus, the justices of the Supreme Court, disregarding prior legal tradition, overwhelming biological evidence and the ethical traditions of a majority of American people, struck down the abortion laws of all 50 states (even the most permissive at the time) and made abortion on demand, at virtually every stage of pregnancy, the law of the land. On January 22, 1973, the court gave the United States the dubious distinction of having the most permissive abortion law of any nation in the western world. Roe vs. Wade, Doe vs. Bolton were decided by a 7-2 vote. Justice Blackmun wrote the majority opinion with Justices White and Rehnquist dissenting.

“As a result of the Roe decision, a right to abortion was effectively established for the entire term of pregnancy for virtually any reason, whether for the sake of personal finances, social convenience, or individual lifestyle...Thus, the Committee observes that no significant legal barriers of any kind whatsoever exist today in the United States for a woman to obtain an abortion for any reason during any stage of her pregnancy.” (Report of the Committee of the Judiciary, United States Senate, on S.J. Res. 110, June 8, 1982, pp 3 -4.)

Other Supreme Court Decisions Dealing with Abortion

Planned Parenthood Association of Central Missouri vs. Danforth, July 1976. As a result of the Danforth ruling, a wife may obtain an abortion without her husband’s consent and, in most instances, even without his knowledge. Another result of the Court’s ruling in the Danforth case is that all state laws requiring the parents’ consent before an abortion is performed on their minor daughter are now invalid.

In addition, states may not prohibit the use of a particular type of abortion method nor require doctors to take as much care to save the life of an aborted baby as if the baby were born prematurely. This decision was decided by votes of 6-3 and 5-4 with Blackmun writing the opinion and dissention by Chief Justice Burger, Justices White and Rehnquist and Justice Stevens in part.

Maher vs. Doe, Beal vs. Doe, June 1977. It is constitutional for a state not to fund non-therapeutic abortions under the Medicaid program; decided by a 6-3 vote with Powell writing the opinion and Brennan, Marshall and Blackmun dissenting.

Poelker vs. Doe, 1977. A city may choose to provide publicly financed hospital services for childbirth, but may choose to bar abortions in its public hospitals. Decided by a 6-3 vote with Brennan, Marshall and Blackmun dissenting.

Colautti vs. Franklin, 1979. A state may not require doctors doing abortions to protect the life of the fetus whenever they have reason to believe it might survive the abortion. Decided by 6-3 vote with Blackmun writing the opinion and Burger, White and Rehnquist dissenting.

Bellotti vs. Baird, Hunerwald vs. Baird, 1979. A state may not require parental consent or judicial approval for an abortion for an unmarried minor. However, five justices stated they would accept some form of parental notification. Decided by 8-1 vote with White dissenting.

McRae vs. Secretary of HEW, Zbaraz vs. Quern (Williams), 1980. There is nothing unconstitutional about the Hyde Amendment; the federal government may refuse to pay for most abortions for welfare women. In addition, states are under no obligation to pay for such abortions if federal funds for reimbursements are withdrawn. Decided by a 5-4 vote with Stewart writing the decision and Brennan, Blackmun, Marshall and Stevens dissenting.

H.L. vs. Matheson, 1981. The court upheld a Utah statute requiring that the parents of a minor be informed by a physician, “if possible,” before he performs an abortion upon her. Decided by a 6-3 vote with Chief Justice Burger writing the decision and Marshall, Brennan and Blackmun dissenting.

Planned Parenthood Association of Kansas City, Missouri vs. Ashcroft and City of Akron vs. Akron Center for Reproductive Health, June 15, 1983. The Supreme Court ruled as unconstitutional the requirement that abortions after 12 weeks (or the first trimester) of pregnancy be performed in a hospital. Majority opinion written by Powell with dissent by O’Connor, White and Rehnquist.

Planned Parenthood Association of Kansas City, Missouri vs. Ashcroft, June 15, 1983. The Supreme Court upheld the requirements of: a pathology report for each abortion, the presence of a second physician when abortions are performed after viability, and parental or juvenile court consent for minors securing abortion.

City of Akron vs. Akron Center for Reproductive Health, June 15, 1983. The Supreme Court ruled unconstitutional the informed consent provisions that a doctor inform a woman of the development of her baby, the complications that may result from an abortion, and the availability of alternatives. Also ruled unconstitutional a 24-hour waiting period and that the remains of the aborted baby be disposed of in a humane and sanitary manner. Majority opinion delivered by Powell with dissent by O’Connor, White and Rehnquist.

Bowen vs. American Association Thornburgh vs. ACOG Bowen v. American Association of Hospitals et al., June 9, 1986. In a 5-3 decision, the U.S. Supreme Court struck down Reagan Administration regulations (based upon the 1973 Rehabilitation Act and known as the Baby Doe Regulations) which were intended to prevent discriminatory non-treatment of handicapped newborn infants. The Court relied heavily upon the right of parents to refuse treatment for their children. (Stevens, Powell, Marshall, Blackmun, Burger for plurality with White, O’Connor, Brennan dissenting.)

Thornburgh vs. ACOG (American College of Obstetricians and Gynecologists), June 11, 1986. In a 5-4 decision written by Justice Blackmun with Powell, Stevens, Brennan and Marshall concurring (White, Rehnquist, O’Connor, Burger dissenting), the Supreme Court struck down a Pennsylvania statute that provided informed consent prior to an abortion, reporting requirements on the performance of abortion and protection of viable unborn children.

Hartigan vs. Zbaraz, 1987. The court upheld, by a 4-4 vote, an appellate court ruling striking down a state law requiring some minor women to wait 24 hours after telling their parents or a judge of the decision to have an abortion. Since this ruling established no precedent, the case may be reheard later.

Bowen vs. Kendrick, June 29, 1988. In a 5-4 decision, the court upheld the constitutionality of the Adolescent Family Life Act (AFLA). The court recognized that AFLA prohibits funding to programs that perform, counsel (with narrow exceptions), refer for abortion and require promotion of adoption as an alternative to abortion. But, the court ruled, [That] approach is not inherently religious, although it may coincide with the approach taken by certain religions.

Webster vs. Reproductive Health Services, July 3, 1989. In a 5-4 decision, the court upheld a Missouri statute regulating abortion. In a series of votes, the court provided the state with new authority to limit abortions in the areas of public funding and post-viability abortions.

Ohio vs. Akron Center for Reproductive Health, June 25, 1990. By a 6-3 vote, the Ohio parental notification law was upheld with Kennedy writing the majority opinion.

Hodgson vs. Minnesota, June 25, 1990. In separate concurring decisions, the Minnesota parental notification law was upheld, including a 48-hour waiting period and two-parent notification with a judicial bypass.

Rust vs. Sullivan, May 23, 1991. In a 5-4 decision written by Justice Rehnquist, the court upheld the Reagan regulations regarding Title 10. The court stated that federal guidelines prohibiting the use of federal monies for counseling and referring for abortions were constitutional.

Planned Parenthood vs. Casey, June 29, 1992. The court in split decisions upheld Pennsylvania statute abortion regulations on parental consent, informed consent, 24-hour waiting period and abortion reporting. In a 5-4 split, the court struck the spousal notification and reaffirmed Roe v. Wade. The court adopted an “undue burden test.”

Bray vs. Alexander, January 13, 1993. The court in a 6-3 vote authored by Justice Antonia Scalia, ruled that the 1871 civil rights law (Ku Klux Klan Act) does not apply to efforts by groups such as Operation Rescue to blockade abortion facilities into closing with mass protests.

Schenk v. Pro-Choice Network, February 1997. The Supreme Court ruled that “floating buffer zones” around abortion clinics limit free speech and are therefore unconstitutional. However, the Court did rule that a “fixed” buffer zone is constitutional, meaning that an area of 15 feet from the clinic entrance is to remain “off grounds” to demonstrators.

Mazurek v. Armstrong, June 16, 1997. The Supreme Court upheld a Montana statute that specifically disqualified physician assistants from performing abortions.

Hill vs. Colorado, June 28, 2000. In a 6-3 decision, the Court upheld a Colorado law that places restrictions on abortion clinic demonstrations. The “bubble” law creates an 8 foot buffer around persons entering abortion facilities. It is a restriction upon the free speech rights of abortion protestors.

Stenberg vs. Carhart, June 28, 2000. In a 5-4 ruling the Court overturned the Nebraska law which banned partial birth abortions. The decision altered the Casey decision and expanded the health exception. Those dissenting included Rehnquist, Scalia, Kennedy and Thomas.

Greenville Women’s Clinic, February 26, 2001. In refusing to hear a challenge to South Carolina’s abortion clinic regulations, the U.S. Supreme Court let stand a lower court ruling that the regulations are constitutional.

Scheidler v. Now, February 26, 2003. The Supreme Court ruled that RICO (Racketeer Influenced and Corrupt Organizations) law does not apply to prolife protesters in the case of Scheidler v. NOW (National Organization for Women). The 8-to-1 ruling prohibits federal anti-racketeering law from being used in the prosecution of prolife or any protesters. The high court ruled that prolifers’ political activity could not be considered the type of extortion that RICO prohibits.