800 word paper ( double spaced, APA-style bibliography) and a Final

Applied Jurisprudence

Abortion – Parts 1 & 2

Introduction to Abortion: Definitions

Abortion is the intentional/deliberate termination of a pregnancy (through drugs or surgery).

The Legality of Abortion

The Legality of Abortion

Roe v Wade (1973)

Facts: ▪ Plaintiffs challenged the constitutionality of a Texas law that

banned abortion except when necessary to save the life of the pregnant woman

Decision: ▪ The U.S. Supreme Court struck down the Texas abortion law as

unconstitutional

The Legality of Abortion

Doe v Bolton (1973) (*The sister/companion case to Roe v Wade*)

Facts: ▪ Plaintiffs challenged the constitutionality of a Georgia law that

banned abortion except where: (a) the pregnancy resulted from rape or incest; (b) the fetus was likely to be born with a serious, permanent defect; or (c) continuing the pregnancy would endanger the life – or seriously and permanently affect the health – of the pregnant woman

Decision: ▪ The U.S. Supreme Court struck down the Georgia abortion law as

unconstitutional

The Legality of Abortion

Roe v Wade & Doe v Bolton

Rationale: Set forth in the Roe opinion, but applied equally to Doe

▪ The U.S. Supreme Court held that the fundamental right to privacy recognized in Griswold v Connecticut (1965) includes a woman's right to terminate her pregnancy (have an abortion).

• In Griswold v Connecticut (1965), the US Supreme Court held that there is a fundamental right to privacy implicit in the Constitution, which prevents the government from intruding into certain areas of a person's life, such as marriage and family planning (i.e. the use of birth control).

The Legality of Abortion

Roe v Wade & Doe v Bolton (continued)

Rationale: Set forth in the Roe opinion (continued)

▪ When a law infringes on a fundamental right, the US Supreme Court uses the Strict Scrutiny standard of judicial review to determine the constitutionality of that law (to determine whether it violates the US Constitution)

▪ Because the US Supreme Court held that abortion was a fundamental right, it used the Strict Scrutiny standard of judicial review to determine the constitutionality of the abortion laws at issue in the cases

The Legality of Abortion

Roe v Wade & Doe v Bolton (continued)

Rationale: Set forth in the Roe opinion (continued)

▪ The U.S. Supreme Court divided pregnancy into thirds - trimesters - and applied Strict Scrutiny to each.

• First Trimester (month 0 - 3)

• Second Trimester (month 4 - 6)

• Third Trimester (month 7 - 10)

▪ By doing this, the U.S. Supreme Court tied the state regulation of abortion to the pregnant woman's current trimester of pregnancy.

The Legality of Abortion

Roe v Wade & Doe v Bolton (continued)

Rationale: Set forth in the Roe opinion (continued)

▪ First Trimester (Months 0-3) • During the first trimester, a state may not ban or regulate an

abortion in any way.

▪ Effect: Abortion is legal during the first trimester

The Legality of Abortion

Roe v Wade & Doe v Bolton (continued)

Rationale: Set forth in the Roe opinion (continued)

▪ Second Trimester (Months 4-6) • During the second trimester, a state may not ban abortion.

• During the second trimester, a state may regulate abortion only to require that abortions be performed by qualified professionals in well-equipped facilities

▪ Effect: Abortion is legal during the second trimester

The Legality of Abortion

Roe v Wade & Doe v Bolton (continued)

Rationale: Set forth in the Roe opinion (continued)

▪ Third Trimester (Months 7-10) • During the third trimester, a state may ban abortion unless it is

necessary to protect the health of the pregnant woman.

▪ Effect: Abortion is only legal during the third trimester if it’s necessary to protect the health of the pregnant woman

▪ Summary • Abortion is legal in the 1st and 2nd trimesters, and legal in the 3rd

trimester if necessary, to protect the health of the pregnant woman

The Legality of Abortion

Roe v Wade & Doe v Bolton

Rationale: Set forth in the Doe opinion, but applied equally to Roe

▪ Although 99% of the Court’s decision was set forth in the Roe opinion, the Court’s explanation of when a 3rd trimester abortion would be considered necessary to protect the health of the pregnant woman was set forth (was hidden) in the Doe opinion:

• Whether a 3rd trimester abortion is necessary to protect the health of the pregnant woman is a judgment that must be made by a doctor in light of all factors relevant to her health and well- being, including her physical, emotional, psychological and familial health, as well as her age

The Legality of Abortion

Roe v Wade & Doe v Bolton (continued)

Conclusion:

▪ The Texas and Georgia abortion laws failed strict scrutiny (because they banned abortion throughout the entire pregnancy instead of distinguishing between early, mid and late-term abortions) and, as a result, were struck down as unconstitutional.

The Legality of Abortion

Roe v Wade & Doe v Bolton (continued)

The Impact of the Roe and Doe Decisions

Roe and Doe overturned the abortion laws of 46 states and split the United States into 2 factions:

▪ Supporters of the Roe & Doe decisions (people who support the legalization of abortion) = Pro-Choice

▪ Opponents of the Roe & Doe decisions (people who oppose the legalization of abortion/Want to abolish abortion) = Pro-Life

Watch the Documentary: “Lake of Fire”

Introduction to Abortion: US Abortion Law

Planned Parenthood v Casey (1992) Facts ▪ Plaintiffs challenged the constitutionality of a Pennsylvania law that

regulated abortion by requiring: 1. Informed Consent * 2. A 24-hour Waiting Period * 3. Parental Consent (included a judicial waiver provision) * 4. Spousal Notification * 5. An Exception for Health/Medical Emergencies 6. Reporting of Information to the State

Decision ▪ The US Supreme Court upheld as constitutional all but 1 provision of

the Pennsylvania abortion law

Introduction to Abortion: US Abortion Law

Planned Parenthood v Casey (continued)

Rationale:

The U.S. Supreme Court Overturned Roe’s Trimester Framework and Replaced it with a Framework Based on Fetal Viability

▪ Instead of dividing pregnancy into trimesters, the U.S. Supreme Court divided pregnancy into 2 parts: (1) before fetal viability; and (2) after fetal viability

▪ By doing this, the U.S. Supreme Court tied the state regulation of abortion to fetal viability (instead of to the pregnant woman’s current trimester of pregnancy)

Introduction to Abortion: US Abortion Law

Planned Parenthood v Casey (continued)

Rationale: (continued)

State Abortion Prohibitions: “Roe’s Central Holding”

▪ Before Fetal Viability • Before Fetal Viability, the state may not ban abortion ▪ Effect: Abortion is legal before fetal viability

▪ After Fetal Viability • After Fetal Viability, the state may ban abortion except when

it’s necessary to protect the health of the pregnant woman. ▪ Effect: Abortion is only legal after fetal viability if it’s

necessary to protect the health of the pregnant woman

Introduction to Abortion: US Abortion Law

Planned Parenthood v Casey (continued)

Rationale: (continued)

State Abortion Regulations:

▪ After Fetal Viability • After fetal viability, a state may regulate abortion

▪ Before Fetal Viability • Instead of using the Strict Scrutiny standard of judicial review, the

U.S. Supreme Court established a new standard of judicial review - the Undue Burden Standard - to determine the constitutionality of state regulations on abortions that occur before fetal viability

Introduction to Abortion: US Abortion Law

Planned Parenthood v Casey (continued)

Rationale: (continued)

State Abortion Regulations: (continued)

▪ Before Fetal Viability (continued) • The Undue Burden Standard of Judicial Review o Before fetal viability, states may regulate abortion so long as

such regulations don’t impose an undue burden on a woman's right to access or obtain an abortion

▪ A state regulation imposes an undue burden if it has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability

Introduction to Abortion: US Abortion Law

Planned Parenthood v Casey (continued)

Rationale: (continued)

State Abortion Regulations: (continued)

▪ Before Fetal Viability (continued)

• By using the Undue Burden Standard (instead of strict scrutiny) to determine the constitutionality of state regulations on abortions that occur before fetal viability, the U.S. Supreme Court:

1. Made it significantly easier for the states to regulate abortion

2. Implicitly rejected Roe’s view that the right to abortion is a fundamental right

Introduction to Abortion: US Abortion Law

Roe v Wade & Doe v Bolton ▪ Trimester Framework

▪ Strict Scrutiny Standard

▪ Abortion is a Fundamental Right

▪ 1st Trimester - Abortion can’t be banned or regulated

▪ 2nd Trimester - Abortion can’t be banned but it can be regulated, but only to require that abortions be performed by qualified health professionals in well-equipped facilities

▪ 3rd Trimester - Abortion can be regulated and banned unless it is necessary to protect the health of the pregnant woman

Planned Parenthood v Casey

▪ Viability Framework

▪ Undue Burden Standard

▪ Abortion is not a Fundamental Right

▪ Before Fetal Viability -Abortion can’t be banned, however, it can be regulated so long as such regulations do not place an undue burden on a woman's right to access or obtain an abortion.

▪ After Fetal Viability - Abortion can be regulated and banned unless it is necessary to protect the health of the pregnant woman

Introduction to Abortion: US Abortion Law

Gonzales v Carhart (2007) Facts ▪ Plaintiffs challenged the constitutionality of a federal law that

banned the Partial Birth Abortion Procedure without providing an exception for cases where the procedure would be necessary to protect the health of the pregnant woman

Types of Surgical Abortion Procedures ▪ Suction Aspiration ▪ Dilation and Evacuation (D & E) ▪ Dilation and Extraction (D & X) (aka a Partial Birth Abortion)

Introduction to Abortion: US Abortion Law

Gonzales v Carhart (continued)

Types of Surgical Abortion Procedures (continued)

▪ Suction Aspiration • Most common surgical abortion procedure

• Performed during the 1st three months of pregnancy (1st

trimester)

• Dr. removes fetus from the uterus by suctioning it through a thin tube that is inserted into the uterus.

Introduction to Abortion: US Abortion Law

Gonzales v Carhart (continued)

Types of Surgical Abortion Procedures (continued)

▪ Dilation and Evacuation (D & E) • Performed after the 1st 3 months of pregnancy (performed

during the 2nd & 3rd trimesters)

• Dr. dismembers the fetus inside the mother’s uterus before removing the pieces from the mother’s body

Introduction to Abortion: US Abortion Law

Gonzales v Carhart (continued)

Types of Surgical Abortion Procedures (continued)

▪ Dilation and Extraction (D & X) • Also known as the Partial Birth Abortion Procedure, which is

the abortion procedure at issue in Gonzales v Carhart

• Performed after the 1st 3 months of pregnancy (performed during the 2nd & 3rd trimesters)

• Dr. extracts portions of the fetus from the uterus and dismembers it outside of the mother’s body.

Introduction to Abortion: US Abortion Law

Gonzales v Carhart (continued)

Decision

▪ The US Supreme Court upheld the constitutionality of a federal law that banned the partial birth abortion procedure without providing an exception for instances where the procedure was necessary to safeguard a pregnant woman’s health

• This marked the first time the US Supreme Court upheld the constitutionality of an abortion prohibition that did not include an exception to safeguard a pregnant woman’s health

Introduction to Abortion: US Abortion Law

Gonzales v Carhart (continued)

Rationale

▪ Government's desire to reduce the number of abortions is a legitimate interest justifying restrictions on abortion practices;

▪ Government’s desire to protect the reputation of the medical profession is a legitimate interest justifying restrictions on abortion practices;

▪ Government's concern for a pregnant woman's emotional health is a legitimate interest justifying restrictions on abortion practices;

▪ Banning an abortion procedure without providing an exception to safeguard the mother’s health does not impose an undue burden so long as another reasonably safe abortion method is available