Regulation of Abortion

Abortion has been practiced around the world since ancient times as a crude method of birth control. Although many religions forbade or restricted the practice, abortion was not considered illegal in most countries until the 19th century.

There were laws prior to this time, however, that banned abortion after quickening—that is, the time that fetal movement can first be felt. In 1803 England banned all abortions, and this policy soon spread to Asia, Africa, and Latin America. Throughout the middle and late 1800s, many states in the United States enacted similar laws banning abortion. In the 20th century, however, many nations began to relax their laws against abortion. The former Union of Soviet Socialist Republics (USSR) legalized abortion in 1920, followed by Japan in 1948, and several Eastern European countries in the 1950s. In the 1960s and 1970s, much of Europe and Asia, along with the United States, legalized abortion.

 
An estimated 46 million abortions are performed worldwide each year, of which 20 million are performed in countries where abortion is restricted or prohibited by law. Illegal abortions are more likely to be performed by untrained people, in unsanitary conditions, or with unsafe surgical procedures or drugs. As a result, illegal abortion accounts for an estimated 78,000 deaths worldwide each year, or about one in seven pregnancy-related deaths. In some African countries, illegal abortion may contribute to up to 50 percent of pregnancy-related deaths. In Romania, where abortion was outlawed from 1966 to 1989, an estimated 86 percent of pregnancy-related deaths were caused by illegal abortion. In countries where abortion is legal, less than 1 percent of pregnancy-related deaths are caused by abortion.

 
A Legalization of Abortion in the United States

 
In the United States, the legalization of abortion began in 1966 when Mississippi passed a law permitting abortion in cases of rape. In the following four years, other states expanded the use of abortion to include cases in which a pregnancy threatens a woman’s health, the fetus has serious abnormalities, or the pregnancy is the result of incest (sexual intercourse between close relatives). In early 1973 the Supreme Court of the United States decided two cases, Roe v. Wade and Doe v. Bolton, that effectively legalized abortion for any reason before the 24th week of pregnancy, the point when the fetus becomes viable. The ruling allowed individual states to enact laws restricting abortion after viability, except in cases when abortion is necessary to preserve the life or health of the woman.

 
In 1976 the Supreme Court recognized the right of pregnant girls under the age of 18, known as mature minors, to have abortions. Three years later the Court ruled that states may require the consent of one parent of a minor requesting an abortion. Parental consent is not necessary if a confidential alternative form of review, such as a judicial hearing, is made available for young women who choose not to involve their parents. The Court stated that a judge in a hearing must approve a minor’s abortion, in place of her parents, if the judge finds that the minor is mature enough to make the decision on her own. If the judge finds that the minor is not capable of making this decision on her own, he or she can decide whether the abortion is in the minor’s best interest.

 
Since these decisions, about 40 states have enacted and enforced parental consent or notification laws, although some laws have been contested in courts for years. In 1990, for example, in Hodgson v. Minnesota, the Supreme Court upheld a law requiring that prior notice be provided to both parents of a minor before an abortion is performed. In a similar case arising in Ohio that same year, the court upheld a requirement for notice or consent of one parent. In 2000, however, the New Jersey Supreme Court struck down a law requiring parental notice for unmarried girls under age 18.

 
Other state-imposed restrictions regulate who pays for abortions, where abortions are performed, and what information is provided to women seeking abortions. For example, in 1977 the Supreme Court allowed states to limit the use of Medicaid funds (government assistance for health care) for payment of elective abortions—that is, those abortions not medically required. A law upheld by the Supreme Court in 1980 restricted the availability of federal Medicaid funding for abortions deemed medically necessary. After that ruling, abortion payments for poor women in many states were limited to cases in which pregnancy threatened the woman’s life. Also in 1977, the Supreme Court allowed the city of St. Louis, Missouri, to exclude elective abortions from procedures performed in a public hospital.

 
In 1983 the Court found it unconstitutional to require that a woman considering an abortion be given information developed by the state about risks or consequences and wait 24 hours after receiving information before having the abortion. Similarly, in 1986 the Court struck down a comprehensive Pennsylvania law requiring that state-developed materials about abortion be offered to women undergoing the procedure.

 
Since the 1989 Supreme Court decision in Webster v. Reproductive Health Services, the Court has permitted several state-imposed restrictions to stand. The Webster case upheld a Missouri law that prohibits the use of public facilities or public employees for abortion and requires a physician to determine the viability of a fetus older than 20 weeks before performing an abortion. In the 1991 case of Rust v. Sullivan, the Court upheld a federal policy that prevented health-care providers who received federal funding from engaging in any activities that encouraged or promoted abortion as a method of family planning. President Bill Clinton later revoked this policy in 1993. 

 
In 1992 the Supreme Court decided Planned Parenthood of Southeastern Pennsylvania v. Casey, a case in which the Court reaffirmed the central ruling of Roe v. Wade—that no undue burden on access to abortion should exist for a woman over 18 years of age prior to fetal viability. But the case also permitted states more freedom in regulating abortion. The Court overturned prior rulings, making it possible for states to again require that a woman be given state-developed information about abortion risks and consequences and wait 24 hours before undergoing the procedure.

 
In 1996 the Congress of the United States enacted a bill banning the practice of so-called partial birth abortions, also known as the intact dilation and extraction procedure. President Clinton vetoed the law because it failed to permit use of the procedure when a fetus displays severe abnormalities or when carrying a pregnancy to term presents a serious threat to a woman’s health or life. Over 30 states passed laws in the 1990s banning use of the procedure. 

 
In June 2000, in Stenberg v. Carhart, the Supreme Court struck down a Nebraska ban on partial birth abortion. The Court stated that the ban was an unconstitutional violation of both Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. But after Congress passed the Partial Birth Abortion Ban Act of 2003 and President George W. Bush signed it into law, the Court revisited the issue in a 2007 ruling in Gonzales v. Planned Parenthood and Gonzales v. Carhart. This time, with Justice Samuel A. Alito, Jr. replacing the retired Justice Sandra Day O’Connor, the Court upheld the ban on the partial birth abortion procedure in a 5 to 4 decision. Under the law, physicians who perform the banned procedure could face fines and up to two years in prison. The law allows for use of intact dilation and extraction only in cases where the mother’s life is endangered without the procedure.

 
Since the Supreme Court ruling that legalized abortion in 1973, opponents of abortion have worked continuously to reverse the decision. They have lobbied state and federal officials to place restrictions on women seeking abortions or on individuals providing abortions. They have also held protests directed at clinics that perform abortions, and, in some cases, have accosted and obstructed patients and health-care providers at such clinics. In May 1994 the Freedom of Access to Clinic Entrances Act was enacted, which made it a federal crime to use force, threat of force, or physical obstruction to injure, intimidate, or interfere with reproductive health-care providers and their patients. That same year, in a case known as Madsen v. Women’s Health Center, the Supreme Court upheld the basic right to protest in peaceful, organized demonstrations outside abortion clinics. But the case upheld a Florida law that created a 36 ft (11 m) buffer zone around a clinic to ensure that demonstrations do not prevent access to clinics or disrupt clinic operations. In February 1997 the Court upheld buffer zones around clinics but struck down certain floating, or moveable, buffer zones around individuals approaching clinics.

 
The Supreme Court’s ruling in 2007 upholding the federal Partial Birth Abortion Ban Act of 2003 was expected to spur further attempts to restrict abortion, if not overturn Roe v. Wade. Supporters of the right to abortion noted that the Court’s majority opinion in the 2007 decision represented the first time since the 1973 Roe ruling that the Court permitted a ban on an abortion procedure, effectively intruding on the privacy of a decision between a woman and her physician. Supporters of the ruling countered that the Court’s decision addressed the moral and ethical concerns put forward by opponents of abortion. They cited Justice Anthony Kennedy’s argument in the majority opinion that “the government has a legitimate and substantial interest in preserving and promoting fetal life.”