Courting Disaster: Abortion and the Supreme Court

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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 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 month of pregnancy, the law may forbid her to have an abortion—unless the abortion is to protect her “life or health.” The court went on to define the word “health” in such broad terms—social well-being, for example—as to make it virtually impossible for a state to protect the unborn child even after the sixth 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. Decided by 6-3 and 5-4 votes with Blackmun writing the majority opinions and dissensions by Burger, White, Rehnquist, and Stevens.

Maher v. Roe, Beal v. Doe, June 20, 1977. The Court ruled a state may restrict funding of non-therapeutic abortions under the Medicaid program. Decided by 6-3 votes with Powell writing both majority opinions and Brennan, Marshall and Blackmun dissenting.

Poelker v. Doe, June 20, 1977. The Court ruled a city may choose to provide publicly financed hospital services for childbirth, but may choose to bar abortions in those hospitals. Decided by a 6-3 vote with Brennan, Marshall and Blackmun dissenting.

Colautti v. Franklin, January 9, 1979. The Court ruled a state could not require abortionists 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. The Court ruled 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. The Court ruled there is nothing unconstitutional about the Hyde Amendment; the federal government may refuse to pay tax dollars for most abortions. In addition, states are under no obligation to pay for such abortions if federal funds for abortions 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 an abortionist before he performs the abortion, “if possible.” 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 Court ruled in two cases that requiring abortions after 12 weeks (or after 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 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 require abortionists to inform women of the development of her baby, potential complications from an abortion, and the availability of alternatives. Also ruled unconstitutional: a 24-hour waiting period, requiring humane disposition of the remains of the aborted baby, and a parental consent requirement without a possible judicial bypass. The 6-3 majority opinion was written by Powell with dissent by O’Connor, White and Rehnquist.

Bowen v. American Hospital Association, June 9, 1986. In a 5-3 decision, the Court struck down Reagan Administration regulations (based upon the 1973 Rehabilitation Act, also known as the Baby Doe Regulations) to prevent discriminatory non-treatment of handicapped 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 Court struck down a Pennsylvania statute that required informed consent prior to an abortion, abortion reporting requirements and protection of viable unborn children.

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 the 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 the 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 states 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 (with a judicial bypass option) was upheld by the Court. Kennedy wrote the majority opinion. Brennan, Marshall and Blackmun dissented.

Hodgson v. Minnesota, June 25, 1990. In separate concurring decisions, the Court upheld part of Minnesota’s parental notification law, including a 48-hour waiting period. The Court overturned the part of the law requiring two-parent notification before a minor could have an abortion. Brennan, Marshall, Blackmun and Stevens dissented.

Rust v. Sullivan, May 23, 1991. In a 5-4 decision written by Justice Rehnquist, the Court upheld Reagan Administration regulations prohibiting using tax dollars through the Title X family planning program for counseling or referring for abortions . The rules were never implemented because of the Clinton Administration.

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 a spousal notification requirement and specifically reaffirmed Roe v. Wade. The Court abandoned Roe’s trimester framework and 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 decision authored by Justice Antonin Scalia, ruled that the 1871 “Ku Klux Klan Act” does not apply to prolife groups blocking abortion facilities into closing with protests.

Schenck v. Pro-Choice Network, February 19, 1997. The Court ruled that “floating buffer zones” around abortion facilities are unconstitutional limits of free speech. However, the Court did rule that a “fixed” buffer zone is constitutional, meaning that an area of 15 feet from the building entrance can remain off-limits to prolife demonstrators.

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

Hill v. Colorado, June 28, 2000. In a 6-3 decision, the Court upheld a Colorado law that restricts the free speech rights of prolife sidewalk counselors at abortion facilities. The “bubble” law creates an eight-foot buffer around persons entering abortion facilities.

Stenberg v. Carhart, June 28, 2000. In a 5-4 ruling, the Court overturned a Nebraska’s partial-birth abortion ban.Rehnquist, Scalia, Kennedy, and Thomas dissented.

Scheidler v. NOW, February 26, 2003. The 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 any protesters.

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

Gonzales v. Carhart, April 18, 2007. The Court upheld the Federal Partial-Birth Abortion Ban Act of 2003. The 5-4 decision ruled the federal ban on partial-birth abortion wasn’t vague and didn’t impose an “undue burden” on women even thought the law did not have a “health” exception. The Gonzales decision discussed but did not overturn the Stenberg v. Carhart decision against Nebraska’s differently-worded partial birth abortion ban.

McCullen v. Coakley, June 26, 2014. The Court unanimously overturned a 2007 Massachusetts law that created a 35-foot buffer zone around abortion facility entrances. Chief Justice Robert’s opinion said the law was too expansive and thus infringed on the First Amendment. The ruling did not revisit or overturn the 2000 ruling in Hill v. Colorado which upheld an 8-foot “bubble.”

Burwell v. Hobby Lobby Stores, June 30, 2014. In a narrow 5-4 decision, the Court ruled that Hobby Lobby and Conestoga Wood Specialties were closely-held corporations and could therefore not be forced under the Affordable Care Act’s HHS Mandate to provide employees with free insurance coverage of contraceptives that may act as abortifacients. The decision was based on the Religious Freedom Restoration Act (RFRA).

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

NIFLA v. Becerra, June 26, 2018. In a 5-4 decision, the Court struck down a California law that required prolife pregnancy help 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. Thomas wrote the majority opinion. Breyer, Ginsburg, Kagan, and Sotomayor dissented.

June Medical Services v. Russo, June 29, 2020. In a 5-4 decision, the Court affirmed their ruling in Hellerstedt by striking down a similar Louisiana law regulating abortion facilities as ambulatory surgical centers. Despite criticizing the Hellerstedt ruling as a wrong decision, Chief Justice John Roberts nevertheless joined Breyer, Ginsburg, Kagan, and Sotomayor to strike down Louisiana’s law, citing the importance of precedent.

Little Sisters of the Poor v. Pennsylvania, July 8, 2020. In a 7-2 decision—following 7 years of litigation and two previous trips up the Supreme Court—the Court upheld the Trump’s Administration’s exception to the HHS Mandate, allowing the Little Sisters of the Poor and others with religious or moral objections to opt out of providing their employees with contraceptive insurance coverage—including those that may act as abortifacients. Ginsburg and Sotomayor dissented.