Reproductive Rights in the United States

Reproductive Rights Cases

Roe v. Wade, 1973. There, the Supreme Court struck down a Texas law that made abortion a crime except when necessary to save the life of the mother. In Roe, the Court held that the 14th Amendment’s right of privacy ” encompass [es] a woman’s decision whether or not to terminate her pregnancy.”

In several later cases, the Court rejected a number of challenges to its basic holding in Roe. As the composition of the Court has changed, however, so has the Court’s position on abortion. That shift can be seen in the Court’s decisions in recent cases on the matter.

In Webster v. Reproductive Health Services, 1989, the Court upheld two key parts of a Missouri law. Those provisions prohibit abortions, except those to preserve the mother’s life or health:

in any public hospital or clinic in that State, and
when the mother is 20 or more weeks pregnant and tests show that the fetus is viable (capable of sustaining life outside the mother’s body).

Two cases in 1990 addressed the issue of minors and abortion. In those cases, the Court said that a State may require a minor:

to inform at least one parent before she can obtain an abortion, Ohio v. Akron Center for Reproductive Health, 1990, and
to tell both parents of her plans, except in cases where a judge gives permission for an abortion without parental knowledge, Hodgson v. Minnesota, 1990.

The Court’s most important decision on the issue since Roe v. Wade came in Planned Parenthood of Southeastern Pennsylvania v. Casey in 1992. There the Court announced this rule: A State may place reasonable limits on a woman’s right to have an abortion, but these restrictions cannot impose an “undue burden” on her choice of that procedure.

In Casey, the Court applied that new standard to Pennsylvania’s Abortion Control Act. It upheld sections of that law that say:

A woman who seeks an abortion must be given professional counseling intended to persuade her to change her mind.
A woman must delay an abortion for at least 24 hours after that counseling.
An unmarried female under 18 must have the consent of a parent, or the permission of a judge, before an abortion.
Doctors and clinics must keep detailed records of all abortions they perform.

Those four requirements do not, said the Court, place “a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” That is, they do not impose an “undue burden” on a woman.

The Court did strike down another key part of the Pennsylvania law, however. That provision required that a married woman tell her husband of her plan to have an abortion.

To this point, the Court has decided only one abortion law case since 1992. In Stenberg v. Carhart, 2000, it applied Casey’s “undue burden” rule to a Nebraska law and found that statute unconstitutional. The Nebraska law prohibited an operation that the opponents of abortion call “partial birth abortion.” That procedure is one that doctors use only infrequently to terminate pregnancies after about 16 weeks.

The Court’s 5-4 majority found the Nebraska law to be flawed because it:

was too loosely drawn,
banned a procedure that may in fact be the most medically appropriate way to end some pregnancies, and
allowed an exception to protect the life, but not the health, of a pregnant woman.

Thirty other States have passed similar laws in recent years, and the Court’s decision in Stenberg apparently destroyed those statutes, as well.

Reproductive Rights, Sexual Behaviour and the Law