History of Abortion in the U.S. Supreme Court

History of Abortion in the U.S. Supreme Court

By Diane Robertson

In the last week, a federal judge completely struck down an Indiana state law outlawing abortions based on the baby’s race, gender, or disability. How, or why, was this conclusion reached, and what led to this action? Understanding the history of abortion laws in the United States lends understanding to what is happening with state abortion laws in the courts today.

History of Abortion in the Supreme Court

The federal courts have been the biggest champions for abortion, particularly the Supreme Court. In January 1973, the Supreme Court handed down a land-mark 7-2 ruling of Roe v. Wade striking down approximately 33 state laws that severely limited or prohibited abortion. In the ruling, the Supreme Court set up what would be known as a three-tiered framework allowing abortion in all three trimesters of pregnancy.

The three tiers set up by Roe v. Wade consisted of absolutely no regulations in the first trimester of pregnancy through the point of viability between 24 to 28 weeks in the second trimester. The court allowed for the states to have an interest in potential life, while permitting abortions in some cases after the 28th week. In the years following Roe v. Wade the court grappled with several cases that created addenda to the ruling . These clarifying cases often consisted of laws concerning parental consent, spousal consent, and waiting periods.

Before 1989 the Supreme Court typically struck down any case regulating abortion. In 1989, in the case of Webster v. Reproductive Health Services, the Supreme Court ruled in favor of a Missouri law. The statute barred the use of state government facilities for abortions and prohibited state funded public health workers from performing abortions unless the life of the mother was at risk. In the 5-4 decision the court upheld the constitutionality of the Missouri statute stating that the law did not prohibit abortions, it only kept the state out of the business of abortion. The ruling declared that the government cannot make abortions illegal, but it does not have to provide them.

This paved the way for the 1992 case, Planned Parenthood v. Casey, in which the justices argued that Roe v. Wade created public expectations that should not easily be discarded by the court. Abortion was upheld, but it opened the way for state regulations. The 1992 court significantly modified the three-tiered framework created by Roe v. Wade: States could now create regulations for abortions beginning at conception.

June 2000 brought “partial-birth” abortion cases before the Supreme Court in Stenberg v. Carhart. This case challenged the constitutionality of a Nebraska law prohibiting partial-birth abortion. The law referred to a specific procedure known in the medical community as “dilation and extraction” (D&X). D&X abortions terminate a pregnancy by partially extracting a fetus from a uterus, collapsing the baby’s skull and removing his or her brain. This procedure is usually performed late in the second trimester.The Nebraska law made it a felony with automatic revocation of a convicted doctor’s state license to practice medicine.

Referring to the original intent of Roe v. Wade, the majority of the court ruled that the law was ambiguous concerning which procedures were illegal and therefore put an undue burden on a woman’s ability to obtain an abortion—a foundation right, according to Roe v. Wade. The Stenberg v. Carhart decision voided partial birth abortion laws in about 30 other states.

In 2003 President George W. Bush signed a law banning certain partial birth abortion procedures. In 2007 the Supreme Court somewhat reversed the 2000 decision in Gonzales v. Carhart in a 5-4 decision upholding the federal law.

While President Bush’s federal law still exists which limits how partial birth abortions can be performed, the Supreme Court and lower federal courts are still striking down state laws that regulate and restrict abortion.

In early 2016, the Court refused to review lower court rulings which overturned North Dakota’s ban on abortion at six weeks of pregnancy, as well as North Dakota’s ban on abortions for baby’s diagnosed with Downs Syndrome, and the state’s appeal on their 2013 fetal heartbeat law. That same month the Supreme Court rejected Arkansas’ bid to enforce a fetal heartbeat law, banning some abortions as early as 12 weeks. Later in the year, in Whole Woman’s Health v. Hellerstedt, the Supreme Court reviewed and then completely struck down a Texas abortion law, a law which included a common sense clause that required abortion facilities to have the same sanitary standards as other out-patient surgical clinics in the state.

Indiana Law Struck Down

The decision to halt the Indiana law concerning the race, gender, or disability of a pre-born baby was based on Planned Parenthood v. Casey from 1992. U.S. District Court Judge Tanya Walton Pratt wrote that according to Planned Parenthood v. Casey, the Supreme Court “leaves no room for the State to examine, let alone prohibit, the basis or bases upon which a woman makes her choice” to abort.

Whether or not this case reaches the Supreme Court is yet to be determined. But if history tells us anything it is that: the Supreme Court of the United States upholds abortion and discourages any limitation to be placed thereon, especially before the 24th week. If the Indiana law reaches the Supreme Court it is very likely they will uphold the decision to strike down the Indiana law.

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