Since 1973, how have the Supreme Court justices addressed the issue of abortion and the law?

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kipling2448 | (Level 3) Educator Emeritus

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The question – “Since 1973, how have the Supreme Court justices addressed the issue of abortion and the law?” – is clearly intended to trace the Supreme Court’s actions in the years following the landmark decision in Roe v. Wade.  That decision, in which the court ruled that the State of Texas, in the person of Henry Wade, District Attorney of Dallas County, violated the U.S. Constitution’s implicit guarantee of the right to privacy by prohibiting abortion services, effectively legalized the termination of pregnancies, while, together with a companion ruling in Doe v. Bolton, expressing the court’s interest in also acknowledging that abortions involved the termination of human life.  In writing for the court’s majority in Roe v. Wade, Justice Harry Blackmun took a step that was intended to find a balance between protecting a woman’s right to abort a pregnancy while also protecting the life of unborn fetuses or children.  Justice Blackmun attempted to accomplish this feat through the establishment of a tiered structure in which abortions would be legal up until the viability of the fetus, especially with respect to the health of the woman.  The tiered structure allowed for essentially unlimited rights to abortion within the first trimester of pregnancy, when the fetus was considered an unviable entity and the health of the mother was unlikely to be an issue.  The second tier extended from the end of the first trimester until the viability of the fetus was established, at which point states could impose restrictions on access to abortions only when the health of the mother was at risk.  The third tier extended protections to the now-viable fetus or child except when the life of the mother was at risk.  Doe v. Bolton was the Supreme Court decision that overturned the State of Georgia’s restrictions on abortions except in cases of rape, deformity of the fetus, or risk to the life of the mother, thereby further emphasizing the court’s view of a woman’s right to abortion as a constitutionally-protected practice under the 14th Amendment’s “privacy” clause.

Since those two 1973 decisions, the Supreme Court’s actions with respect to abortion have been focused primarily on the issues of protecting access to medical facilities where abortions are performed and state-imposed requirements with regard to informed consent, spousal consent, and parental consent in the case of minors.  One of the most important Supreme Court decisions post-1973 was the 1989 ruling in Webster v. Reproductive Health Services, in which the State of Missouri’s 1986 law prohibiting the use of public facilities and public employees for the performance of abortions was upheld by the court in a 5 to 4 decision.  The Missouri law’s preamble notably stated that “the life of each human being begins at conception.”  That declaration, and the law’s prohibitions on the use of public facilities except in cases when the life of the mother was at risk and its requirement for viability testing before aborting fetuses older than 20 weeks, were aimed at severely restricting access to abortion services, restrictions that would have fallen most heavily on lower-income women, as the more affluent could afford the use of private facilities. 

Planned Parenthood v. Danforth was a 1976 decision by the Supreme Court overturning another Missouri law intended to restrict abortions by requiring the consent of the husband of a married woman seeking to terminate a pregnancy.  In Harris v. McRae, the court ruled in 1980 that legislation sponsored by Illinois Congressman Henry Hyde that restricted the use of Medicaid funding for the provision of abortions except in cases of rape, incest or risk to the life of the mother met the requirements of constitutionality, as the law did not ban abortions, but merely restricted the means by which abortions could be funded.  In 1990, the court ruled in Hodgson v. Minnesota that that state’s law requiring the notification of both parents of a minor’s decision to terminate a pregnancy was unconstitutional, but upheld the notion that one parent should be notified while reaffirming the law’s 48-hour waiting period before the abortion could be performed.

The 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey represented the next major Supreme Court action with respect to abortion.  The Pennsylvania law required spousal notification before a married woman could obtain an abortion, a requirement the court determined to be unconstitutional, although the decision did uphold waiting periods and parental consent in the case of minors.  In 2000, the court’s decision in Stenberg v. Carhart, the particularly difficult issue of partial-birth abortions was addressed in response to the State of Nebraska’s passage of law banning this particular procedure except in cases of risk to the life of the mother.  In a 5 to 4 decision, the court ruled that Nebraska’s restrictions violated the constitutional right to privacy.  Gonzalez v. Carhart, however, the court ruled in 2007 in another 5 to 4 decision that a congressionally-passed prohibition on partial-birth abortions was constitutional, thereby reaffirming the court’s historical tendency to validate congressional intent. 

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