Abortion and Reproductive Rights Under the Constitution
For generations, few topics in public discourse have been as polarizing as the status of reproductive rights under the Constitution. The landmark 1973 decision of Roe v. Wade read reproductive rights into the Ninth Amendment and the Due Process Clause of the Fourteenth Amendment as an extension of the right to privacy. The Court struck down a Texas ban on abortion outside situations in which the life of the mother was at stake. It balanced the state interest in the life of the fetus against the interest of the mother in personal autonomy and bodily integrity, finding that the state interest begins only when the fetus becomes viable, which is when it can survive independently from the mother. The Court in Roe outlawed abortion bans prior to viability and prohibited the government from subordinating the life of the mother to the life of the fetus.
Based on its definition of viability, the Court developed a trimester formula to control the right of the state to intervene in a pregnancy. During the first trimester, the state had no ability to override the discretion of the mother in deciding to end a pregnancy. During the second trimester, the state could regulate abortions to protect the health of the mother, but outright abortion bans were prohibited. During the third trimester, abortion regulations and even bans might be valid because the fetus is viable. The state thus could protect the life of the fetus in this final stage, although any regulation or ban needed to contain an exception for abortions that would be required to protect the life or health of the mother.
Doctors vs. Legislatures
In Doe v. Bolton, decided at the same time as Roe, the Court noted that doctors are better situated than legislatures to evaluate the risks that a specific abortion poses. This is because of their expert knowledge and experience. The Court also held that the right to privacy covers the doctor-patient relationship, to which confidentiality attaches. However, the Court retreated from this viewpoint in later decisions, giving greater discretion to legislatures.
The Undue Burden Standard
The Supreme Court later limited the impact of Roe by departing from the trimester model and imposing a new standard of review, known as the undue burden standard. This prevented states from imposing undue burdens on the ability of a woman to exercise the right to an abortion. In Planned Parenthood v. Casey, the Court considered several conditions imposed on abortions under Pennsylvania law. The Justices could not reach a majority, but the plurality opinion allowed the state to impose the conditions of informed consent, informed parental consent for minors (in most cases), and a 24-hour waiting period before the abortion is performed. However, the Court prevented the state from requiring a married woman to notify her husband that she is pursuing an abortion. This condition crossed the undue burden line.
The Court in Casey indicated that a state can ban abortion outright once a fetus becomes viable. Moreover, this decision allowed the state to regulate the information about abortion procedures provided by health care professionals to their patients, as well as the language in which this information is presented. Casey thus diverged somewhat from the emphasis on physician authority in earlier decisions.
Partial Birth Abortions
Known as intact dilation and extraction, partial birth abortion is a surgical procedure that removes an intact fetus from the uterus after the fetus has died or been killed. This procedure is typically used late in a pregnancy. In 2000, the Supreme Court struck down a state law that banned partial birth abortion, since it did not provide for any exceptions that would protect the health of the mother. Congress responded by enacting the Partial-Birth Abortion Ban Act of 2003, which banned intact dilation and extraction of a fetus with a heartbeat.
Very few physicians performed partial birth abortions at the time, but one of them sued to argue that the Partial-Birth Abortion Ban Act was unconstitutional because it did not provide an exception for preserving the health of the mother. However, in Gonzales v. Carhart, the Court ruled that the law was constitutional because it did not impose an undue burden on women. It noted that medical science has not determined that a partial birth abortion is ever necessary to preserve a woman’s health, so the government has greater discretion to impose restrictions.
Recent Reversal of Abortion Rights
Explore our 50-state survey of abortion restrictions in the wake of the Dobbs decision.
On June 24, 2022, the Supreme Court ruled in Dobbs v. Jackson Women's Health Organization that the Constitution does not support a right to abortion. This decision overturned the precedents of Roe and Casey, reversing half a century of constitutional doctrine. Writing for the majority, Justice Samuel Alito declared that the power to regulate or prohibit abortion must be returned to the people of each state and their legislatures. Some states previously had enacted abortion bans that would automatically take effect if the Supreme Court reached this conclusion, while other states began to move toward banning abortion immediately after the Dobbs decision was released. However, abortion still will be legal under the laws of many states, some of which have bolstered protections for reproductive rights in recent years. This area will remain volatile and fiercely contested for the foreseeable future.