Abortion procedures have been performed in the United States since the before the 1800s. During the 18th century, abortions were legally allowed and widely practiced. However, as time passed, abortion became more taboo and less accepted by society. Today, abortion is legal in all 50 states, but many states have passed laws regarding the circumstances of abortions. Women are not only faced with laws restricting abortion, but also have to face criticism and harassment from pro-life groups. The Supreme Court has played a major role throughout history in deciding the legality of abortion.
The United States has a long history of laws pertaining to abortion procedures. Until 1880, abortions were legal under common law and widely accepted and practiced (Ravitz, 2016). Many people, including the Catholic Church, felt that abortion before fetal movement was acceptable (Ravitz, 2016). However, in the late 1800s, the Catholic Church condemned all forms of abortion, and abortions were criminalized by 1880 (Ravitz, 2016). The only legal form of abortion was to save the mother’s life (Ravitz, 2016). However, abortions weren’t banned due to conservative religious views. The American Medical Association was the major pushing factor behind the ban of abortions in the late 1800s (Ravitz, 2016).
After abortions became illegal, women continued to receive abortions secretly in private homes. During the Depression, abortion rates rapidly increased (Ravitz, 2016). It is estimated that between 200,000 and 1.2 million women received abortions in the 1950s and 1960s (Ravitz, 2016). Some women could leave the country or pay physicians obscene amounts of money to perform abortions, but not all were that fortunate. Women were forced to receive back-alley procedures or had to perform their own at-home abortions. Many groups focused on helping women find safe abortions. However, in 1973, the Supreme Court legalized abortion with the passage of Roe v. Wade, the first landmark case regarding abortion.
Norma McCorvey, a Texas resident, wanted to terminate her pregnancy by abortion. At the time, Texas law banned abortions, except to save the woman’s life (Epstein & Walker, 2018). Under the fictional name “Jane Roe,” McCorvey filed a lawsuit on behalf of herself and other women against Henry Wade, the district attorney of Dallas County (Epstein & Walker, 2018). Roe v. Wade dealt exclusively with the 14th Amendment of the Constitution, which addresses the right to life, liberty, and property.
In June 1970, a Texas district court ruled that the state’s abortion ban was illegal because it violated a constitutional right to privacy (Epstein & Walkler, 2018). The case was eventually appealed to the Supreme Court. The question the Court faced was whether the right to abortion was protected under the 14th Amendment, which grants the right to privacy. In a 7-2 decision, the Supreme court struck down the Texas law banning abortion, legalizing the procedure nationwide (“Roe v. Wade,” 1973). The court’s method of constitutional interpretation was stare decisis, building the decision of Roe v. Wade on the previous decision of Griswold v. Connecticut (1965).
In a majority opinion written by Justice Harry Blackmun, the court declared that a woman’s right to an abortion was implicit in the right to privacy protected by the 14th Amendment (“Roe v. Wade,” 1973). The decision gave a woman total autonomy over the pregnancy during the first trimester, and defined different levels of state interest for the second and third trimesters (“Roe v. Wade,” 1973). Justices White and Rehnquist filed dissenting opinions, stating that there is no language or history in the Constitution that supports the court’s judgment on the legality of abortion (“Roe v. Wade,” 1973).
Another major landmark case that came after Roe v. Wade was Planned Parenthood of Southeastern Pennsylvania v. Casey in 1992. In 1988 and 1989, Pennsylvania legislature amended its abortion control law (Epstein & Walker, 2018). The changes created three requirements: informed consent and a 24-hour waiting period prior to the abortion, a minor seeking an abortion required the consent of one parent, and a married woman seeking an abortion had to indicate that she notified her husband of her intention to abort the fetus (Epstein & Walker, 2018).
These provisions were challenged by several abortion clinics and physicians. A federal appeals court upheld all the provisions, except for the husband notification requirement (Epstein & Walker, 2018). The Supreme Court had to determine whether a state can require women who want an abortion to obtain informed consent, wait 24 hours, if married, notify their husbands, and, if minors, obtain parental consent, without violating their right to abortion as guaranteed by Roe v. Wade.
In a 5-4 decision, the court reaffirmed Roe, while upholding most of Pennsylvania’s provisions (“Planned Parenthood of S.E. PA v. Casey,” 1992). The court’s method of constitutional interpretation was stare decisis, referencing the court’s decision in Roe v. Wade. For the first time, the justices imposed a new standard to determine the validity of laws restricting abortions. In the court’s opinion, the new standard asks whether a state abortion regulation has the purpose or effect of imposing an "undue burden," which is defined as a "substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability” (“Planned Parenthood of S.E. PA v. Casey,” 1992). Under this standard, the only provision to fail the undue-burden test was the husband notification requirement (“Planned Parenthood of S.E. PA v. Casey,” 1992).
Justices Rehnquist, White, Scalia, and Thomas concurred, but also partially dissented. Justices Rehnquist and Scalia, joined by White and Thomas, dissented from the plurality decision to uphold Roe v. Wade and strike down the spousal notification law, arguing that Roe was incorrectly decided (“Planned Parenthood of S.E. PA v. Casey,” 1992). In his opinion, Justice Rehnquist questioned the fundamental right to an abortion, the right to privacy, and the strict scrutiny application in Roe (“Planned Parenthood of S.E. PA v. Casey,” 1992). Justice Scalia felt that abortion is not a protected liberty mentioned in the Constitution; therefore, states could intrude on the liberty (“Planned Parenthood of S.E. PA v. Casey,” 1992).
More recently, in 2016, the landmark case of Whole Woman’s Health v. Hellerstedt made its way to the Supreme Court. In 2013, the Texas Legislature passed House Bill 2, which contained several provisions related to abortions (Epstein & Walker, 2018). One provision required that any physician performing an abortion have admitting privileges at a hospital within 30 miles of where the abortion was performed (Epstein & Walker, 2018). Another provision required that all abortion clinics comply with standards for ambulatory surgical centers (Epstein & Walker, 2018). The petitioners in this case were a group of abortion providers. They argued that, “H.B. 2 denied equal protection, unlawfully delegated lawmaking authority, and constituted arbitrary and unreasonable state action” (“Whole Woman's Health et al. v. Hellerstedt,” 2016).
The district court dismissed the equal protection, unlawful delegation, and arbitrary and unreasonable state action claims and granted declaratory and injunctive relief against the enforcement of the two contested provisions (“Whole Woman's Health et al. v. Hellerstedt,” 2016). The U.S. Court of Appeals for the Fifth Circuit affirmed the district court’s dismissal of the equal protection, unlawful delegation, and arbitrary and unreasonable state action claims and partially reversed the injunctions because the plaintiffs failed to show that they placed a substantial burden in the path of a woman seeking an abortion (“Whole Woman's Health et al. v. Hellerstedt,” 2016).
The Supreme Court had to determine if a court's "substantial burden" analysis should take into account the extent to which laws that restrict access to abortion services actually serve the government's stated interest in promoting health. The court ruled a 5-3 decision for Whole Woman’s Health. The method of constitutional interpretation was stare decisis, as the court adopted the undue burden test in Planned Parenthood of Southeastern Pennsylvania v. Casey in 1992. The court held that Texas cannot place restrictions on the delivery of abortion services that create an undue burden for women seeking an abortion; therefore, the sections of Texas law H.B. 2 challenged were invalid (“Whole Woman's Health et al. v. Hellerstedt,” 2016). It was concluded that the bill’s provisions did not provide medical benefits sufficient to justify the burdens placed on women trying to receive abortions; thus, the bill was deemed unconstitutional (“Whole Woman's Health et al. v. Hellerstedt,” 2016).
Justice Thomas filed a dissenting opinion, stating that the majority "reimagines the undue-burden standard" for abortion access, creating a "benefits-and-burdens balancing test" that courts should have instead deferred to the legislatures to resolve (“Whole Woman's Health et al. v. Hellerstedt,” 2016). Justice Alito, joined by Chief Justice Roberts and Justice Thomas, filed a second dissenting opinion, arguing that there is no direct causal link between the Texas law and the closings of abortion clinics (“Whole Woman's Health et al. v. Hellerstedt,” 2016).
In my opinion, the Supreme Court has made appropriate judgments on cases related to the right to privacy and abortion. Every woman should have control over what happens to her body. It is not up to state legislatures to decide whether a woman births a child. The decision to have an abortion should be up to a woman and her physician, as abortion is of the most personal nature. However, I do believe that there should be trimester restrictions on when an abortion can be performed, and who can perform abortions. Restrictions are appropriate because the safety of women is important. In conclusion, I hope in the future the Supreme Court continues to secure and support women’s right to privacy and abortion.