From statehouses to Congress, the Republican Party has made restricting abortion rights one of its most important legislative priorities in the Obama Era. According to the Guttmacher Institute, in the first six months of 2013, state legislatures have already enacted 106 provisions related to reproductive health and rights, including 43 provisions restricting abortion access – as many as were enacted during the entire year in 2012.
Some states have banned abortion early in pregnancy. In March alone, the Arkansas legislature overrode a veto by Democratic Governor Mike Beebe to ban abortions occurring more than 12 weeks after a women’s last menstrual period and North Dakota enacted a ban on abortions occurring after a fetal heartbeat is detected, which generally occurs at 6 weeks after a women’s last menstrual period.
Other states have banned abortions later in pregnancy. The Texas legislature, after a high-profile debate, banned abortion at or after 20 weeks. A similar ban exists in 10 other states, while an eleventh, Arizona, bans abortion at 18 weeks post-fertilization. And Republicans in the U.S. House of Representatives enacted a measure banning abortion at or after 20 weeks nationwide, although it has no chance of becoming law.
Moreover, several states enacted burdensome abortion regulations aimed at significantly hampering women’s access to the procedure. Twenty-two states have moved to restrict abortion coverage available through state insurance exchanges. Five states enacted TRAP laws – i.e., targeted regulation of abortion providers. Ohio, for example, has long required abortion providers to have transfer agreements with local hospitals; in June, Ohio adopted a new provision forbidding publicly funded hospitals from signing agreements to take patients from clinics. Four states prohibited the use of telemedicine. And several other states adopted provisions designed to reduce access to abortion. Indiana, for example, enacted measures that require a women seeking an abortion to have an ultrasound.
However, the problem with many of these restrictions, particularly the outright bans on abortion, is that they directly contradict Roe v. Wade (1973) and conflict with the Constitution.
The precise nature of the Roe v. Wade decision has been and continues to be widely misunderstood. Indeed, it is not an exaggeration to say that no Supreme Court opinion has had its arguments more misrepresented in the public square than Roe v. Wade.
Prior to the Roe v. Wade decision, abortion was illegal for any reason and at any point in the pregnancy almost everywhere in the United States. Roe v. Wade concerned Jane Roe (a.k.a. Norman McCorvey), a Texas resident, who claimed to have become pregnant as a result of a gang rape. According to Texas law at the time, which had been essentially unchanged since 1856, a woman could have an abortion only if it was necessary to save her life. Because Roe’s pregnancy was not life-threatening, she sued the state of Texas.
READ THE OPINION: Roe v. Wade, 410 U.S. 113 (1973)
In a 7-2 decision, the Supreme Court invalidated Texas’ law. In Roe, the Court recognized that a woman’s right to terminate her pregnancy comes within the constitutional protection afforded to individual autonomy and privacy. Writing for the majority, Justice Blackmun described the right of personal privacy as fundamental, and concluded that the right “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”
The Supreme Court made clear, however, that a woman’s right to seek an abortion is not absolute and must be balanced against the State’s interest in potential life and maternal health. Thus the Court established the so-called “trimester framework.”
During the first trimester, “the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.” In other words, no restrictions are allowed. In the second trimester, the state could adopt abortion restrictions “reasonably related to maternal health.” In other words, some restrictions allowed in principle, but the purpose of the restrictions must be to protect the health of the mother. During the third trimester, after fetal “viability” (to mean “potentially able to live outside the mother’s womb, albeit with artificial aid”), the State’s interest in potential life is compelling and “the State . . . may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” In other words, the State may restrict abortion, but only if these restrictions meet two conditions: (1) they must be in the interest of the fetus; and (2) there must be no threat to the welfare of the mother.
On the same day as the Roe v. Wade ruling, the Court ruled on another abortion case, Doe v. Bolton. In Doe v. Bolton, the Court upheld against a vagueness challenge a Georgia statute permitting physicians to provide abortions when necessary in their “best medical judgment.” In doing so, the Court defined the term “health” of the mother expansively, noting that it could encompass a road range of factors, including “physical, emotional, psychological, familial, and the woman’s age.” When taken in conjunction with Roe v. Wade, the Court’s decision in Doe v. Bolton made it practically impossible for States to restrict access to abortion, even in the third trimester, since denying abortion to a woman who sought one could be taken as a threat to her psychological and emotional well-being.
The Court’s subsequent decision in Planned Parenthood of Southeastern Pennsylvania v. Casey diminished the doctrinal significance of the “trimester framework.” In Casey, the Court “abandon[ed] the trimester framework as a rigid prohibition on all previability regulation aimed at the protection of fetal life.” The Court did, however, retain one element of the trimester framework – the rule that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.” In addition, previability regulations were now reviewed under a less rigorous standard, subject to invalidation only if they created an “undue burden” on the right to terminate a pregnancy.
READ THE OPINION: Planned Parenthood v. Casey, 505 U.S. 833 (1992)
Roe v. Wade and its progeny, therefore, established a constitutional right to abortion pre-viability. Indeed, after Roe an unbroken chain of federal authority share a common, unmistakable feature: an embrace of the legal truth that any law that bans abortions pre-viability is per se unconstitutional. No restrictions are permitted. Post-viability, States may impose restrictions, but only if they do not create an undue burden.
Ambiguity surrounds, however, in the legal interpretation of fetal viability. When the Court decided Roe, viability was “usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks.” The Casey decision, in light of the technological developments between 1973 and 1992, dissociated viability from the hard line of 28 weeks. The result was that the Court left the point at which “undue burdens” were permissible at the mercy of the technology of the time and the judgment of the state legislators.
Fetal viability, of course, is a scientific question, and one that is subject to serious and concerned debate. Indeed, there is no sharp limit of development, age, or weight at which a human fetus automatically becomes viable. But according to the most recent empirical research, the lower limit of viability is approximately 23-24 weeks gestational age.
The recent actions by Republican state and federal legislators are designed to test this ambiguity. These measures are designed to do more than just severely restrict abortion access, a constitutional guarantee afforded to all women in the United States. They are designed to fire a direct shot at abortion jurisprudence in the United States, inviting legal challenges to take the Supreme Court once again. All in the hope of moving the goalposts closer to what Republicans really want, which is to ban abortion in all circumstances.