Overturning Roe

What would happen if Roe v. Wade and Doe v. Bolton, the cases that legalized abortion throughout the country in 1973, were to be overturned?

Only seven states (Arkansas, Louisiana, Michigan, Oklahoma, Rhode Island, South Dakota, and Wisconsin) would have enforceable laws on the books that would ban abortion. These states represent less than 10 percent of the U.S. population. For more information, click here.

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Supreme Court Decisions on Abortion Since 1973

Following is a brief summary of United States Supreme Court abortion decisions commencing with Roe v. Wade, giving the citations, date, holding, and author of the majority opinion.

Roe v. Wade, 410 U.S. 113 (January 22, 1973). Roe invalidated a 19th century Texas statute prohibiting abortion except in cases where necessary to preserve maternal life, on the basis that the right of privacy secured by the Due Process clause of the Fourteenth Amendment includes a fundamental right to decide whether or not to bring a pregnancy to term. (Blackmun) Contrary to popular misconception, the 1973 Supreme Court decision did not legalize abortion only in the early months of pregnancy or under restricted circumstances. After extensive public hearings in 1982, the U.S. Senate Judiciary Committee issued an official report which concluded, "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 sake of personal finances, social convenience, or individual lifestyle...Thus, the Committee observes that no significant legal barriers of any kind whatsoever exist in the United States for a woman to obtain an abortion for any reason during any stage of her pregnancy." (Report of the Committee on the Judiciary, United States Senate, on S.J. Res. 110, June 8, 1982, pages 3 and 4).

Doe v. Bolton, 410 U.S. 179 (January 22, 1973). Doe invalidated a Georgia "reform" abortion statute that permitted abortion where continued pregnancy would endanger the woman's life or health, where the fetus would likely be born with a serious defect, or where pregnancy resulted from rape. The statute also required that abortion be performed in an accredited hospital, and that two physicians confirm the performing physician's judgment of necessity for the abortion. Doe is frequently cited for its definition of maternal "health" to include a broad range of factors, including general maternal "well-being," as a justification for legalized abortion during the last trimester of pregnancy. (Blackmun) In effect, so long as a woman can find a physician willing to perform an abortion, she has a constitutional right to obtain an abortion in the United States at any time throughout the nine months of pregnancy, right up to birth. Thus, the justices of the Supreme Court, disregarding prior legal tradition, overwhelming biological evidence and the ethical tradition of a majority of the 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 U.S. Supreme Court in two separate decisions (Roe v. Wade and Doe v. 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 v. 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.)      

Bigelow v. Virginia, 421 U.S. 809 (1975). Invalidated a state ban on advertising for abortion. (Blackmun)

Connecticut v. Menillo, 423 U.S. 9 (1975). Upheld a Connecticut anti-abortion statute as it applies to non-physicians. (Unsigned)

Singleton v. Wulff, 428 U.S. 106 (1975). This decision held that physicians may challenge abortion funding restrictions on behalf of their female patients seeking abortions. This ruling had a strong impact upon abortion litigation allowing physicians to act as plaintiffs instead of individual women, as in the case of Roe v. Wade. (Blackmun)

Planned Parenthood Association of Central Missouri v. Danforth, 428 U.S. 52 (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 were invalidated. In addition, states could not prohibit the use of a particular type of abortion method nor require physicians 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 dissension by Chief Justice Burger, Justices White, Rehnquist and Stevens in part. 

Beal v. Doe, 432 U.S. 438 (1977). First court ruling in a series of 1977 abortion funding cases was upheld by 6-3 vote, Brennan, Marshall and Blackmun dissenting. Pennsylvania restriction on the use of Medicaid funds for abortions to those that are "medically necessary" against the challenge that this policy violates Title XIX of the Social Security Act. (Powell)

Maher v. Roe, 432 U.S. 464 (1977). Second in a series of 1977 abortion funding cases was upheld by 6-3 vote with Brennan, Marshall and Blackmun dissenting. Dealt with a Connecticut regulation restricting the use of Medicaid funds to those abortions that are "medically necessary." It was challenged on constitutional grounds of due process and equal protection. It was reasoned that the state is free to use its power of funding to encourage childbirth over abortion. Also noted that, "a woman has at least an equal right to choose to carry her fetus to term as to choose to abort it." (Powell)

Poelker v. Doe, 432 U.S. 519 (1977). Third in a series of 1977 abortion funding cases decided by a 6-3 vote with Brennan, Marshall and Blackmun dissenting. Upheld a St. Louis policy against performance of abortion in public hospitals. A city may choose to provide publicly financed hospital services for childbirth, but may choose to bar abortions in its public hospitals. (Unsigned)

Colautti v. Franklin, 439 U.S. 379 (1979). This ruling invalidated a Pennsylvania statute created standard for determination of viability of the unborn child. 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 a 6-3 vote with Burger, White and Rehnquist dissenting. (Blackmun)

Bellotti v. Baird, Hunerwald v. Baird, 443 U.S. 622 (1979). Invalidated a Massachusetts statute requiring parental consent. The states requiring the consent of parents to abortions upon minors must afford minors an alternative opportunity for authorization of the abortion where the minor may demonstrate that either she is mature enough to make her own decision, or that the abortion would be in her best interests. However, five justices stated that they would accept some form of parental notification. Vote was 8-1 with White dissenting. (Powell)

McRae v. Secretary of H.E.W. (Harris), Zbaraz v. Quern (Williams), 448 U.S. 297/358 (1980). Contested the Hyde Amendment, restricting the use of federal funds for abortion to those necessary to preserve the life of the mother. The amendment was challenged as a denial of due process, equal protection, freedom of religion, and as an establishment of Roman Catholic dogma in violation of the First Amendment. It was determined that 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 reimbursement are withdrawn. Perhaps the most significant Supreme Court holding on abortion outside of Roe v. Wade. (Stewart)

H.L. v. Matheson, 450 U.S. 398 (1981). The Court upheld a Utah statute requiring that the parents of an unemancipated minor be informed by a physician, "if possible," before he performs an abortion on her. (Burger)

Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (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. The Supreme Court struck down the following:  consent of parents for all abortions performed on minors under the age of 15, requiring detailed information on medical risks of abortion, fetal development, and abortion alternatives to be given to women prior to abortions, and requiring a 24-hour waiting period between giving of the required information and performance of the abortion. Also required that the remains of the aborted baby be disposed of in a human and sanitary manner. A significant dissenting opinion was written by Justice O'Connor in her first abortion case. (Powell)

Planned Parenthood Association of Kansas City, MO v. Ashcroft, 462 U.S. 506 (1983). The Supreme Court upheld the requirements of; a pathology report for each abortion, the presence of a second physician at post-viability abortions, and parental or juvenile court consent for minors seeking an abortion. (Powell)

Bowen v. American Hospital Association, 476 U.S. 610 (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 v. American Colleges of Obstetricians and Gynecologists, 476 U.S. 747 (1986). The Supreme Court invalidated the provisions of the Pennsylvania Abortion Control Act concerning informed consent, informational reporting requirements, and protection of viable unborn children. This decision is notable for the hostility of the majority of five Justices to apparently mild forms of abortion regulation, and the strong dissents from four Justices calling for re-examination of reversal of Roe v. Wade. Concurring: Blackmun, Powell, Stevens, Brennan and Marshall, dissenting: White, Rehnquist, O'Connor and Burger. (Blackmun)

Hartigan v. Zbaraz, 484 U.S. 171 (1987). In a 4-4 vote, the Supreme Court left standing a lower court's decision which struck down parts of the 1983 Illinois parental notification of abortion law requiring either that an abortion provider inform parents 24 hours before their minor child can have an abortion or that the girl receive a judge's permission to "bypass" her parents.

Bowen v. Kendrick, 487 U.S. 589 (1988). The Supreme Court upheld the constitutionality of the Adolescent Family Life Act (AFTL). The Court recognized that AFTL prohibits funding to programs which perform, counsel, or (with narrow exceptions) refer for abortion, and requires promotion of adoption as an alternative to abortion. But, the Court said, "[That] approach is not inherently religious, although it may coincide with the approach taken by certain religions."

Webster v. Reproductive Health Services, 492 U.S. 490 (1989). The Supreme Court upheld a Missouri statute regulating abortion requirements for viability tests after twenty weeks. The Court provided the state with new authority to limit abortions in the areas of public funding and post viability abortions. (Rehnquist)

Hodgson v. Minnesota, 110 S. Ct. 2926 (1990). The 14th Amendement to the Constitution requires that a law mandating that both parents of an underage girl be notified before an abortion is performed on her is permissible only if it includes a provision that a judge may make exceptions on various grounds. The law may require a 48-hour waiting period between notification and the performance of the abortion to give the parents a realistic opportunity to talk to the daughter.

Ohio v. Akron Center for Reproductive Health, 110 S. Ct. 2972 (1990). A state may require that an abortionist notify the parents of an underage girl before performing an abortion on her, provided that the law allows a judge to make exceptions and authorize an abortion without informing the parents whenever it is believes that it would be in the girl's "best interests."

Rust v. Sullivan, 59 L.W. 4451 (1991). The Court upheld the Reagan Administration regulations regarding Title X. The Court stated that federal guidelines prohibiting the use of federal monies for counseling and referring for abortions were constitutional. (Rehnquist)

Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). The Supreme Court in a split decision upheld Pennsylvania abortion regulations on informed consent requirements, parental consent, 24-hour waiting period, and abortion reporting. In a 5-4 split, the Court struck the spousal notification law and reaffirmed Roe v. Wade. The Court adopted a new "undue burden" test. (Delivered jointly: O'Connor, Kennedy, Souter).

Bray v. Alexandria Women's Clinic, 506 U.S. 263 (1993). The Court ruled 5-4 that the anti-Ku Klux Klan Act of 1871 could not be applied to prolife protestors since opposition to abortion is not a form of discrimination against a class of persons. (Scalia)

Madsen v. Women's Health Clinic, 62 L.W. 4686 (1994). An injunction prohibiting prolifers from entering a 36 foot buffer zone around the entrance of an abortion facility was upheld by the Court. The finding was that the injunction was directed at the protestors conduct, not their speech content and did not violate the First Amendment. (Rehnquist)

Schenck v. Pro-Choice Network, 519 U.S. 357 (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, 520 U.S. 968 (1997). The Supreme Court upheld a Montana statute that specifically disqualified physician assistants from performing abortions.     

Hill v. Colorado, 530 U.S. 703 (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 v. Carhart, 530 U.S. 914 (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 v. Bryant, 222 F.3d 157 (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, 537 U.S. 393 (2003).The Supreme Court ruled that RICO (Racketeer Influenced and Corrupt Organizations) law does not apply to prolife protesters. 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.

Ayotte v. Planned Parenthood, 546 U.S. 320 (2006). The Supreme Court ruled that the lower court had erred in striking down a New Hampshire parental notification law by failing to narrow its consideration of the law. The Court said that if there are parts of the law that are constitutional, the entire law should not be struck down, and the courts are obligated to uphold as much of a law as possible. The 9-0 opinion of the court was written by Justice Sandra Day O’Connor, one her very last opinions before leaving the bench.

Schiedler v. NOW II, 547 U.S. 9 (2006). The Supreme Court ruled that the lower courts had misapplied the federal Hobbs Act dealing with extortion to prolife protestors. In an 8-0 ruling written by Justice Breyer, the court ruled that the prolife activists could not be charged under this law.

Gonzales v. Carhart, 550 U.S. ___ (2007). The Supreme Court upheld the federal Partial Birth Abortion Ban Act of 2003 signed by President Bush. The majority opinion by Justice Kennedy repudiated portions of the 2000 Stenberg ruling which had overturned a similar ban enacted in Nebraska (Kennedy had issued a scathing dissent in the Stenberg case). The opinion used very graphic language to describe the abortion procedure. It further reinforced the 2006 Ayotte ruling stating courts have a duty to uphold statutes as constitutional to the greatest extent possible, not strike them down for the smallest reason. The Gonzales decision noted that the Congress had a legitimate interest in drawing a bright line between abortion and infanticide. The ruling represents the first ban on a specific abortion procedure to be upheld by the high court.

 

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