Abortion is a very controversial topic in our nation, and it has been a hot-button political issue for my entire lifetime. For most of the history of our nation abortion was illegal. Prior to 1973, the legality of abortion was controlled by state law, and most of the states banned or severely restricted abortion. State abortion laws generally targeted those who performed abortions rather than the pregnant women who sought to have the procedure performed, but some states made the women who sought abortions criminals.
In the 1960s women’s movements pushed for greater political and sexual freedom for women, and many states began to relax abortion law. By 1970, 12 states had greatly broadened the circumstances under which a woman could legally receive an abortion, and four others — New York, Washington, Hawaii and Alaska, had completely decriminalized abortion during the early stages of pregnancy.
Then in 1973, the Supreme Court decided the seminal case of Roe v. Wade which concluded that women have a constitutional right to privacy concerning their pregnancies and a liberty interest in deciding whether or not to carry a pregnancy to term. In Roe v. Wade, the court found that a Texas law which totally banned all abortions was unconstitutional and a violation of women’s privacy and liberty interests protected by the Constitution. The Roe case set up a complicated legal framework to review state statutes regulating abortion based on the maturity of the fetus and the length of the pregnancy.
In Roe, the Supreme Court decided that state regulation of abortion during the first trimester was difficult or impossible and should generally not be allowed. Regulation of abortion during the second trimester was possible when related to the health of the mother, and regulation of abortion during the third trimester was generally allowed because the state had an interest in protecting the life of a viable fetus at that time.
Beginning in 1989 and continuing throughout the decades since, many legal challenges have been brought up through the Supreme Court seeking to weaken the findings of Roe v. Wade and restore individual states’ ability to regulate and outlaw abortion. During this time many exceptions have been carved out of Roe v. Wade, and the various states have had growing authority to regulate and ban abortions outright.
Despite this renewed authority for states to regulate and criminalize abortion, the United States remains one of the least restrictive nations concerning abortion worldwide. In addition to the United States, only six other countries in the world allow abortion after a fetus is 20 weeks old — China, North Korea, Singapore, Vietnam, The Netherlands and Canada. Most countries worldwide do not allow for “at-will” or “on-demand” abortions at the request of the mother at any time. Of those that allow for these types of abortions, nearly all prohibit the practice after the fetus is 12-14 weeks old.
On Dec. 1, 2021, the Supreme Court will hear oral arguments in the most recent case which seeks to expand the states’ authority to regulate and ban abortions when they hear the case of Dobbs v. Jackson Women’s Health Organization. Dobbs is a challenge to a Mississippi law that functionally bans almost all abortions after the 15th week of pregnancy. This case has garnered a lot of attention because Mississippi has asked the court to completely overturn Roe v. Wade and allow states to once again completely ban abortion without restriction by liberty interests protected by the Constitution. Further, there is a perceived political shift on the Supreme Court which some believe will lead the court to overturn the precedent established in Roe.
The fervor over this case grew even louder a few weeks ago when the Supreme Court denied an emergency stay which asked the court to immediately block a new Texas statute that banned abortions after only six weeks. The court found no emergency existed, and it allowed the Texas law to go into effect while the constitutional appeals went through the lower court system. This law may still be overturned and declared unconstitutional, but it will remain in effect in the interim while judges and lawyers continue to argue over the next months or years.
A large and loud segment of our population finds the concept of abortion to be abhorrent. Another portion of the population believes the practice to be an ordinary and personal health decision on par with any other medical decisions which we are free to make. Many more find themselves somewhere in between.
Wherever you find yourself on this issue, the Supreme Court is set to weigh in once again on whether or how much the practice of abortion can be regulated by state law. It may be that we will soon find ourselves once again living in a patchwork quilt of laws where the legality of abortion depends more on which state you’re in than what country you’re in. I’ll end this article with two quotes representative of two distinct viewpoints on this issue:
“It is unthinkable to allow complete strangers, whether individually or collectively as state legislators or others in government, to make such personal decisions for someone else.” — Sarah Weddington, assistant to President Jimmy Carter and attorney for “Jane Roe”
“I’ve noticed that everyone who is for abortion has already been born.” ― Ronald Reagan
John Judkins is a Greenfield attorney.