In light of the current discourse surrounding abortion rights in the USA, the following article has been prepared to provide a snapshot of the current legal position in the US.
Please note that this article may be a trigger for some people and you should exercise your own discretion before reading any further.
Video courtesy of ABC News
The Current Position
Abortion is legal throughout the United States and its territories, although restrictions and accessibility vary from state to state. Abortion is a highly controversial and divisive issue in the society, culture, and politics of the U.S., and anti-abortion laws have been in force in each state since at least 1900. Since 1976, the Republican Party has generally sought to restrict abortion access based on the stage of pregnancy or criminalize abortion, whereas the Democratic Party has generally defended access to abortion and has made contraception easier to obtain.[1]
Before the Supreme Court of the United States decisions of Roe v. Wade and Doe v. Bolton decriminalized abortion nationwide in 1973, abortion was already legal in several states, but the decision in the former case imposed a uniform framework for state legislation on the subject. It established a minimal period during which abortion is legal, with more or fewer restrictions throughout the pregnancy. That basic framework, modified in Planned Parenthood v. Casey (1992), remains nominally in place, although the effective availability of abortion varies significantly from state to state, as many counties have no abortion providers.[2] Planned Parenthood v. Casey held that a law cannot place legal restrictions imposing an undue burden for "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a non-viable fetus".[3]
The main actors in the abortion debate are often framed as "pro-choice", believing that a woman is entitled to choose whether to continue her pregnancy, versus "pro-life", believing that the fetus has a right to live, though most Americans are found to agree with some positions of each side.[4] Support for abortion gradually increased in the U.S. after the Roe v. Wade ruling, but has stabilized into the 2010s.
Roe v Wade 410 U.S. 113 (1973)
Prior to Roe v. Wade, 30 states prohibited abortion without exception, 16 states banned abortion except in certain special circumstances (e.g., rape, incest, health threat to mother), 3 states allowed residents to obtain abortions, and New York allowed abortions generally.[5] Oon January 22, 1973, the Supreme Court in Roe v. Wade invalidated all of these laws, and set guidelines for the availability of abortion. Roe established that the right of privacy of a woman to obtain an abortion was not an unqualified right and "must be considered against important state interests in regulation".[6] Roe established the end of the first trimester (i.e., 12 week) as the threshold for state interest, such that states were prohibited from banning abortion in the first trimester but allowed to impose increasing restrictions or outright bans later in pregnancy.
In deciding Roe v. Wade, the Supreme Court ruled that a Texas statute forbidding abortion except when necessary to save the life of the mother was unconstitutional. The Court arrived at its decision by concluding that the issue of abortion and abortion rights falls under the right to privacy (in the sense of the right of a person not to be encroached upon by the state). In its opinion, it listed several landmark cases where the court had previously found a right to privacy implied by the Constitution. The Court did not recognize a right to abortion in all cases:
State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.[7]
The Court held that a right to privacy existed and included the right to have an abortion. The court found that a mother had a right to abortion until viability, a point to be determined by the abortion doctor. After viability a woman can obtain an abortion for health reasons, which the Court defined broadly to include psychological well-being.
A central issue in the Roe case (and in the wider abortion debate in general) is whether human life or personhood begins at conception, birth, or at some point in between. The Court declined to make an attempt at resolving this issue, noting:
"We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer." [8]
Instead, it chose to point out that historically, under English and American common law and statutes, "the unborn have never been recognized ... as persons in the whole sense",[9] and thus, the fetuses are not legally entitled to the protection afforded by the right to life specifically enumerated in the Fourteenth Amendment. So, rather than asserting that human life begins at any specific point, the court simply declared that the State has a "compelling interest" in protecting "potential life" at the point of viability.
Doe v Bolton 410 U.S. 179 (1973)
Under Roe v. Wade, state governments may not prohibit late terminations of pregnancy when "necessary to preserve the life or health of the mother",[10] even if it would cause the demise of a viable fetus. This rule was clarified by the 1973 judicial decision Doe v. Bolton, which specifies "that 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".[11] It is by this provision for the mother's mental health that many women in the U.S. legally choose abortion after viability when screenings reveal abnormalities that do not cause a baby to die shortly after birth.
Current Discourse
As mentioned at the outset, this article is prepared in light of significant empirical discourse relating to abortion rights in the USA. It has been alleged that there may be a major change on the way from the United States Supreme Court as discussed in the following reports. PILA await the full and final judgment from the Supreme Court before forming any opinion on the matter.
Politico:
<https://www.politico.com/news/2022/05/11/alito-abortion-draft-opinion-roe-00031648>
The New York Times:
<https://www.nytimes.com/2022/05/11/us/politics/alito-opinion-roe-fact-check.html>
Sky News:
<https://news.sky.com/story/roe-v-wade-attempt-to-protect-abortion-rights-with-new-us-law-fails-12611015>
References