Courting Disaster: Abortion and the Supreme Court

View PDF

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

Roe v. Wade & Doe v. Bolton

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—e.g., 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 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.” (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 v. Wade and Doe v. Bolton were decided by a 7-2 vote. Justice Blackmun wrote the majority opinion, joined by Chief Justice Burger and Justices Brennan, Stewart, Marshall and Powell. Justices White and Rehnquist wrote dissenting opinions.

“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 v. Danforth, July 1, 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 was that all state laws requiring the parents’ consent before an abortion is performed on their minor daughter were invalid.

In addition, states could 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 dissension by Burger, White and Rehnquist and Justice Stevens in part.

Maher v. Roe, Beal v. Doe, June 20, 1977. It is constitutional for a state to restrict funding of non-therapeutic abortions under the Medicaid program. Decided by 6-3 votes with Powell writing both opinions and Brennan, Marshall and Blackmun dissenting.

Poelker v. Doe, June 20, 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 v. Franklin, January 9, 1979. A state could not require doctors doing abortions to protect the life of the unborn child 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 v. Baird, Hunerwald v. Baird, July 2, 1979. A state could 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 an 8-1 vote with White dissenting.

Harris v. McRae, June 30, 1980. There is nothing unconstitutional about the Hyde Amendment; the federal government may refuse to pay for most abortions for women on welfare. 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. v. Matheson, March 23, 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 Burger writing the decision and Marshall, Brennan and Blackmun dissenting.

Planned Parenthood Assn. v. Ashcroft, Akron v. Akron Center for Reproductive Health, June 15, 1983. The Supreme Court ruled in two cases that the requirement that abortions after 12 weeks (or the first trimester) of pregnancy be performed in a hospital was unconstitutional.

In Planned Parenthood Assn. v. Ashcroft, the 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. The opinion was written by Powell with Blackmun, Marshall, Brennan and Stevens dissenting.

In Akron v. Akron Center for Reproductive Health, the Court ruled unconstitutional the informed consent provisions that a doctor inform a woman of the development of her baby, complications that may result from an abortion and the availability of alternatives. Also ruled unconstitutional was 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 v. American Hospital Association, June 9, 1986. In a 5-3 decision, the 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 wrote for the plurality with White, O’Connor, Brennan dissenting.

Thornburgh v. ACOG, 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 v. Zbaraz, December 14, 1987. The court upheld, by a 4-4 vote, an appellate court ruling striking down a state law requiring a 24-hour waiting period for minors after telling their parents or a judge of their decision to have an abortion. The Supreme Court found that jurisdiction was lacking so no precedent was set.

Bowen v. 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 prohibited funding to programs that perform, counsel (with narrow exceptions) or refer for abortion and required promotion of adoption as an alternative to abortion. AFLA gave funding to some religious groups and the Court found that monitoring their programs offered through AFLA did not create an “excessive entanglement” between church and state.

Webster v. 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 v. Akron Center for Reproductive Health, June 25, 1990. By a 6-3 vote, the Ohio parental notification law for minors was upheld. Kennedy wrote the majority opinion. Brennan, Marshall and Blackmun dissented.

Hodgson v. 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. Brennan, Marshall, Blackmun and Stevens dissented.

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

Planned Parenthood v. Casey, June 29, 1992. The court in split decisions upheld a Pennsylvania statute with abortion regulations on parental consent, informed consent, a 24-hour waiting period and abortion reporting. In a bitter 5-4 split however, the court struck down spousal notification and specifically reaffirmed Roe v. Wade. The court adopted an “undue burden test” to see if abortion regulations place a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”

Bray v. Alexandria, January 13, 1993. The court in a 6-3 vote authored by Justice Antonin 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 19, 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 v. 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 eight-foot buffer around persons entering abortion facilities. It is a restriction upon the free speech rights of abortion protestors.

Stenberg v. Carhart, June 28, 2000. In a 5-4 ruling the Court overturned a 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, February 26, 2001. The Supreme Court refused to hear a challenge to South Carolina’s abortion clinic regulations based on the idea that they are unconstitutional because they single out abortion clinics. The Court let stand the lower court ruling upholding their constitutionality.

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

Ayotte v. Planned Parenthood of Northern New England, January 18, 2006. In a unanimous decision, the Court vacated a decision by the First Circuit Court which had ruled New Hampshire’s parental notification law was unconstitutional. The decision called on the First Circuit Court to find ways to limit certain parts of the law without invalidating the entire law.

Gonzales v. Carhart, April 18, 2007. The Supreme Court upheld the Federal Partial-Birth Abortion Ban Act of 2003. The 5-4 decision reversed decisions of two lower courts and ruled the federal ban on partial-birth abortion wasn’t vague and didn’t impose an “undue burden” on women looking to obtain abortions because it didn’t have a health exception. The Gonzales decision discussed but did not overturn the Stenberg v. Carhart decision since the language of federal ban was different than Nebraska’s ban.

McCullen v. Coakley, June 26, 2014. The Supreme Court unanimously overturned a 2007 Massachusetts law that created a 35-foot buffer zone around abortion clinic entrances, blocking protestors or prolife sidewalk counselors from public sidewalks. Chief Justice Robert’s opinion said the law was too expansive and thus infringed on the First Amendment.

Burwell v. Hobby Lobby Stores, June 30, 2014. In a narrow 5-4 decision, the Supreme Court ruled that Hobby Lobby and Conestoga Wood Specialties, as closely-held corporations, could not be required under the Affordable Care Act—against their conscience—to provide free insurance coverage to employees of contraceptives that may act as abortifacients. The decision was based on the Religious Freedom Restoration Act (RFRA), which protects religious liberty from governmental interference.

Whole Women’s Health v. Hellerstedt, June 27, 2016. In a 5-3 decision, the Supreme Court struck down a Texas law that regulated abortion clinics as ambulatory surgical centers and required abortionists to maintain hospital admitting privileges. The majority ruled the regulations didn’t have enough health benefit and too many abortions clinics closed in Texas, creating an “undue burden” on women’s access to abortion. Justices Alito, Thomas, and Roberts dissented.

NIFLA v. Becerra, June 26, 2018. In a 5-4 decision, the Supreme Court struck down a California law that required prolife crisis pregnancy centers to promote abortion services. The court found that this was a violation of the First Amendment and people can’t be forced to speak against their beliefs. Justice Thomas wrote the opinion. Justices Breyer, Ginsburg, Kagan and Sotomayor dissented.