| 2.27.20

What are Abortion Rights?

Do you support abortion rights?

BACKGROUND

The debate over abortion rights is one of the most contentious in American politics. Unsurprisingly, it has spurred a number of controversial Supreme Court decisions and legislative proposals in recent decades.

OVERVIEW

Prior the Supreme Court’s landmark decisions on the issue of abortion rights in 1973, abortion was illegal in 30 states and legal in 20 states only under certain circumstances (such as in cases of rape or when the woman’s health was jeopardized).

The most well-known of these decisions, Roe v. Wade, held that the Constitution protects a woman’s right to terminate her pregnancy. The Court held that the 14th Amendment protected personal privacy rights, including a woman’s decision about whether to carry the pregnancy to term, and that only compelling state interests can justify limitations on that decision. It held that the state’s interest in protecting the mother’s health begins at the end of the first trimester, and its interest in protecting the fetus begins at the point of viability.

The Court didn’t address the point at which life begins in Roe, but defined viability as the point at which the fetus is potentially able to survive outside the womb (the timeframe of viability advanced earlier in the pregnancy due to medical advances and is currently as early as 21 weeks), and held that the unborn aren’t afforded the 14th Amendment’s protections that extend to a “person”.

The Supreme Court’s other landmark 1973 decision came in Doe v. Bolton. The Doe decision broadened the protections of Roe by putting states on notice that, similar to how states couldn’t make providing abortions illegal, states couldn’t use procedural barriers to make abortion access unreasonably difficult. It also noted that those requirements wouldn’t apply to law protecting the religious & moral beliefs of religious or denominational hospitals & their employees.

The aftermath of Roe & Doe didn’t see the legal controversy over abortion subside, as abortion-related laws were adopted at the federal & state levels. The Hyde Amendment, which prohibited federal funding for abortion through Medicaid, was first enacted in 1977 and survived legal challenges that reached the Supreme Court, as did state-level bills that similarly prohibited taxpayer funded abortions. These decisions held that there is no statutory or constitutional requirement that the federal government or states fund either elective or medically-necessary abortions.

Subsequent Supreme Court decisions further addressed constitutional questions related to abortion:

Planned Parenthood v. Casey (1992) overturned the trimester standard in Roe in favor of a viability standard, allowing states to adopt restrictions on first trimester abortions so long as they don’t unduly burden a woman’s efforts to obtain an abortion before the fetus reaches viability. It reaffirmed Roe in three ways: a woman has a right to an abortion prior to viability; the state can restrict post-viability abortions as long as there are exceptions for the woman’s health; and that the state has legitimate interests in protecting the woman’s health and the life of the fetus. These findings resulted in Pennsylvania’s 24-hour waiting period, informed consent, parental notification, and record-keeping requirements being upheld; and the state’s spousal notification requirement being struck down.
Stenberg v. Carhart (2000) concerned a Nebraska law that prohibited partial-birth abortions (technical term: dilation & extraction) but didn’t include an exception for abortions to save the mother’s life and could be interpreted broadly to include the more standard dilation & evacuation abortions, thus creating an unconstitutional undue burden.

The Stenberg decision prompted the enactment of the federal Partial-Birth Abortion Ban Act, which was signed into law by President George W. Bush in 2003 and prohibited partial birth abortions except when necessary to save the mother’s life. It faced immediate legal challenges, and the Supreme Court eventually upheld its constitutionality in Gonzales v. Carhart (2007).

The most recent significant Supreme Court decision related to abortion came in Whole Women’s Health v. Hellerstedt (2016), which invalidated Texas laws that required abortion providing physicians to have admitting privileges at nearby hospitals, and that their abortion facility meet the same standards as an ambulatory surgical center. The Court found that those requirements created an undue burden for abortion access, in violation of the standards it outlined in Casey.

WHAT ARE SOME LEGISLATIVE PROPOSALS RELATED TO ABORTION POLICY?

There have been several proposals introduced recently at the federal level related to abortion policy:

Protecting Infants Who Survive Abortions: The Born Alive Abortion Survivors Protection Act would require abortionists to provide diligent, conscientious, and age appropriate care to an infant born alive following an attempted abortion, including transportation to a hospital. If an abortion provider fails to do so, they would face criminal penalties and could face prosecution for murder ― the woman who delivered the infant wouldn’t face prosecution and could sue the provider for compensation and other damages. It received consideration in the Senate in 2019 and was blocked on a 53-44 procedural vote that required 60 votes to succeed, when just three Democrats joined Republicans to vote in favor.
Ending the Hyde Amendment: The EACH Woman Act would repeal the Hyde Amendment and allow federal tax dollars to fund abortions through Medicare, Medicaid, and other government-sponsored healthcare plans. It would also prohibit states and the federal government from interfering with abortion coverage in health insurance exchanges. This bill hasn’t received a vote in Congress.
Codifying the Hyde Amendment: The No Taxpayer Funding for Abortion & Abortion Insurance Full Disclosure Act would make the Hyde Amendment, which is currently made policy through its attachment to must-pass bills as an amendment, a permanent standalone law. It’d also require health insurers to prominently disclose which plans provide abortion coverage in all marketing materials. The GOP-controlled House passed it on a mostly party-line vote in 2017. In 2019, the bill failed on a procedural vote in the Senate.
Banning Abortions After 20 Weeks: The Pain-Capable Unborn Child Protection Act would ban abortion weeks after 20 weeks of pregnancy, except in cases of rape, incest, or to save the life of the mother. The GOP-controlled Senate voted on this bill in 2018, which failed to reach a 60-vote procedural threshold on a 51-46 margin, with several senators breaking ranks: three Democrats voted in favor and two Republicans in opposition.
Requiring Dignified Disposal of Fetal Remains: The Dignity for Aborted Children Act would require that the remains of aborted fetuses be respectfully disposed through interment or cremation carried out by the provider or the patient (at the patient’s discretion). It was introduced after the remains of 2,411 aborted fetuses were found in the home and vehicle of a deceased Indiana abortion doctor. It hasn’t received consideration in Congress.

There have also have been several abortion-related proposals at the state-level in addition to the types of state laws addressed in the aforementioned Supreme Court cases:

Heartbeat Laws: Seven states recently enacted “heartbeat bills” that would ban abortions after fetal cardiac activity is detected (usually after 6-8 weeks) but contain exceptions for cases when the woman’s health is jeopardized. All of those laws have been blocked by court rulings from taking effect, similar to those in three states which were enacted several years ago before being struck down.
Trigger Laws: Several states have enacted “trigger laws” that would take effect if Roe v. Wade is overturned and prohibit abortion.
Easing Restrictions on Late-Term Abortions: Three states have recently considered, and two enacted, bills easing restrictions on abortions occurring in the second or third trimester of pregnancy. Illinois’s law repealed its state-level ban on partial birth abortions, which are performed late in pregnancies, while New York’s expanded access to abortions after 24 weeks of pregnancy. Virginia’s bill to broaden access to second & third trimester abortions stalled after controversy involving comments by Gov. Ralph North (D) seemed to suggest it supported post-birth infanticide.
States Without Time-Based Limits on Abortion: There are seven states which don’t have time-based restrictions on abortion access according to the Kaiser Family Foundation, including: Alaska, Colorado, New Hampshire, New Jersey, New Mexico, Oregon, and Vermont, plus the District of Columbia.

WHAT DO SUPPORTERS OF ABORTION RIGHTS SAY?

Politicians shouldn’t use the law to control a woman’s decision to carry a pregnancy to term. That decision, which is arguably the most personal & significant of the woman’s life, should be between them & their doctor.

WHAT DO SUPPORTERS OF ABORTION RESTRICTIONS SAY?

The unborn are among the most vulnerable in society and they should have the right-to-life in all but the most extreme circumstances, such as cases of rape or incest, or if the mother’s life is in jeopardy.