Order Code 95-724 A
Report for Congress
Received through the CRS Web
Abortion Law Development:
A Brief Overview
Updated January 2, 2001
Karen J. Lewis and Jon O. Shimabukuro
American Law Division
Congressional Research Service ˜ The Library of Congress
Abortion Law Development:
A Brief Overview
In Roe v. Wade, 410 U.S. 113 (1973), the U.S. Supreme Court determined that
the Constitution protects a woman’s decision whether or not to terminate her
pregnancy. In a companion case, Doe v. Bolton, 410 U.S. 179 (1973), the Court held
further that a state may not unduly burden a woman’s fundamental right to abortion
by prohibiting or substantially limiting access to the means of effectuating her
decision. Rather than settle the issue, the Court’s decisions kindled heated debate
and precipitated a variety of governmental actions at the national, state and local
levels designed either to nullify the rulings or hinder their effectuation. These
governmental regulations have, in turn, spawned further litigation in which resulting
judicial refinements in the law have been no more successful in dampening the
The law with respect to abortion in mid-19th century America followed the
common law of England in all but a few states. By the time of the Civil War, a
number of states had begun to revise their statutes in order to prohibit abortion at all
stages of gestation, with various exceptions for therapeutic abortions.
1967 saw the first victory of an abortion reform movement with the passage of
liberalizing legislation in Colorado. The legislation was based on the Model Penal
Code. Between 1967 and 1973, approximately one-third of the states had adopted,
either in whole or in part, the Model Penal Code’s provisions allowing abortion in
instances other than where only the mother’s life was in danger.
Between 1968 and 1972, abortion statutes of many states were challenged on the
grounds of vagueness, violation of the fundamental right of privacy, and denial of
equal protection. In 1973, the Court ruled in Roe and Doe that Texas and Georgia
statutes regulating abortion interfered to an unconstitutional extent with a woman’s
right to decide whether to terminate her pregnancy. The decisions rested upon the
conclusion that the Fourteenth Amendment right of personal privacy encompassed
a woman’s decision whether to carry a pregnancy to term.
The Supreme Court’s decisions in Roe and Doe did not address a number of
important abortion-related issues which have been raised subsequently by state
actions seeking to restrict the scope of the Court’s rulings. These include the issues
of informed consent, spousal consent, parental consent, and reporting requirements.
In addition, Roe and Doe never resolved the question of what, if any, type of abortion
procedures may be required or prohibited by statute. In 1989, the Court indicated in
Webster v. Reproductive Health Services, 492 U.S. 490, that, while it was not
overruling Roe and Doe, it was willing to apply a less stringent standard of review
to state restrictions respecting a woman’s right to an abortion. Then, in 1992, in
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992),
the Court rejected specifically Roe’s strict scrutiny standard and adopted the undue
burden analysis. Finally, in 2000, the Court in Stenberg v. Carhart, 530 U.S. 914,
120 S.Ct. 2597 (2000), determined that a Nebraska statute prohibiting the
performance of “partial-birth” abortions is unconstitutional.
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
I. Development and Status of the Law Prior to 1973 . . . . . . . . . . . . . . . . 1
II. The Supreme Court’s 1973 Abortion Rulings . . . . . . . . . . . . . . . . . . . . 2
III. Public Funding of Abortions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
IV. Supreme Court Decisions Subsequent to Roe and Doe Involving
the Substantive Right to Abortion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Informed Consent/Waiting Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Spousal/Parental Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Parental Notification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
V. Setting the Stage for Casey: Webster v. Reproductive Health
Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
VI. A Shift in Direction: Planned Parenthood of Southeastern
Pennsylvania v. Casey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
VII. Applying Casey: Stenberg v. Carhart . . . . . . . . . . . . . . . . . . . . . . . . . 15
Abortion Law Development:
A Brief Overview
In Roe v. Wade, the U.S. Supreme Court determined that the Constitution
protects a woman’s decision whether or not to terminate her pregnancy.1 In a
companion case, Doe v. Bolton, the Court held further that a state may not unduly
burden a woman’s fundamental right to abortion by prohibiting or substantially
limiting access to the means of effectuating her decision.2 Rather than settle the
issue, the Court’s decisions kindled heated debate and precipitated a variety of
governmental actions at the national, state and local levels designed either to nullify
the rulings or hinder their effectuation. These governmental regulations have, in turn,
spawned further litigation in which resulting judicial refinements in the law have
been no more successful in dampening the controversy.
This report offers an overview of the development of abortion law from 1973
to the present. Beginning with a brief discussion of the historical background, the
report analyzes the leading Supreme Court decisions over the past twenty-eight years,
emphasizing particularly the landmark decisions in Roe and Doe, the Court’s shift
in direction in Webster v. Reproductive Health Services and Planned Parenthood of
Southeastern Pennsylvania v. Casey, and the Court’s most recent decision on
abortion, Stenberg v. Carhart.3 The Court’s decisions on the constitutionality of
restricting public funding for abortion are also discussed.
Development and Status of the Law Prior to 1973
The law with respect to abortion in mid-19th century America followed existing
common law of England in all but a few states.4 Thus, no indictment would occur
for aborting a fetus of a consenting female prior to “quickening.” But, by the time
of the Civil War, an influential anti-abortion movement began to affect legislation
by inducing states to add to or revise their statutes in order to prohibit abortion at all
410 U.S. 113 (1973).
410 U.S. 179 (1973).
Webster v. Reproductive Health Services, 492 U.S. 490 (1989); Planned Parenthood of
Southwestern Pennsylvania v. Casey, 505 U.S. 833 (1992); Stenberg v. Carhart, 530 U.S.
For additional discussion of the historical development of the regulation of abortion, see
Roe v. Wade, 410 U.S. 113, 130-41. See also, Eugene Quay, “Justifiable Abortion–Medical
and Legal Foundations,” 49 Geo. L.J. 173 (Winter 1960) and 49 Geo L.J. 395 (Spring 1961);
James C. Mohr, Abortion in America (1978).
stages of gestation. By 1910, every state had anti-abortion laws, except Kentucky
whose courts judicially declared abortions to be illegal. In 1967, forty-nine states and
the District of Columbia classified the crime of abortion as a felony. The concept of
“quickening” was no longer used to determine criminal liability but was retained in
some states to set punishment. Nontherapeutic abortions were essentially unlawful.
The states varied in their exceptions for therapeutic abortions. Forty-two states
permitted abortions only if necessary to save the life of the mother. Other states
allowed abortion to save a woman from “serious permanent bodily injury” or her
“life and health.” Three states allowed abortions that were not “unlawfully
performed” or that were not “without lawful justification”, leaving interpretation of
those standards to the courts.
This, however, represented the high water mark in restrictive abortion laws in
the United States, for 1967 saw the first victory of an abortion reform movement with
the passage of liberalizing legislation in Colorado. The movement had started in the
early 1950s and centered its efforts on a proposed criminal abortion statute developed
by the American Law Institute as part of its Model Penal Code that would allow
abortions when childbirth posed grave danger to the physical or mental health of a
woman, when there was high likelihood of fetal abnormality, or when pregnancy
resulted from rape or incest.
Between 1967 and the Supreme Court’s 1973 decisions in Roe and Doe,
approximately one-third of the states had adopted, either in whole or in part, the
Model Penal Code’s provisions allowing abortions in instances other than where only
the mother’s life was in danger. Also, by the end of 1970, four states (Alaska,
Hawaii, New York, and Washington) had repealed criminal penalties for abortions
performed in early pregnancy by a licensed physician, subject to stated procedural
and health requirements.
The first U.S. Supreme Court decision dealing with abortion was rendered in
1971. In United States v. Vuitch, the Court denied a vagueness challenge to the
District of Columbia abortion statute.5 The net effect of the Vuitch decision was to
expand the availability of abortions under the D.C. law’s provision allowing
abortions where “necessary for the preservation of the mother’s...health.”
II. The Supreme Court’s 1973 Abortion Rulings
Between 1968 and 1972, the constitutionality of restrictive abortion statutes of
many states was challenged on the grounds of vagueness, violation of the
fundamental right of privacy, and denial of equal protection. These challenges met
with mixed success in the lower courts. However, in 1973, the Supreme Court issued
its rulings in Roe v. Wade and Doe v. Bolton. In those cases the Court found that
Texas and Georgia statutes regulating abortion interfered to an unconstitutional
extent with a woman’s right to decide whether to terminate her pregnancy. The
Texas statute forbade all abortions not necessary “for the purpose of saving the life
of the mother.” The Georgia enactment permitted abortions when continued
pregnancy seriously threatened the woman’s life or health, when the fetus was very
402 U.S. 62 (1971).
likely to have severe birth defects, or when the pregnancy resulted from rape. The
Georgia statute required, however, that abortions be performed only at accredited
hospitals and only after approval by a hospital committee and two consulting
The Court’s decisions were delivered by Justice Blackmun for himself and six
other Justices. Justices White and Rehnquist dissented. The Court ruled that states
may not categorically proscribe abortions by making their performance a crime, and
that states may not make abortions unnecessarily difficult to obtain by prescribing
elaborate procedural guidelines. The constitutional basis for the decisions rested
upon the conclusion that the Fourteenth Amendment right of personal privacy
embraced a woman’s decision whether to carry a pregnancy to term. The Court noted
that its prior decisions had “found at least the roots of...[a] guarantee of personal
privacy” in various amendments to the Constitution or their penumbras (i.e.,
protected offshoots) and characterized the right to privacy as grounded in “the
Fourteenth Amendment’s concept of personal liberty and restrictions upon State
action.”6 Regarding the scope of that right, the Court stated that it included “only
personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of
ordered liberty’” and “bears some extension to activities related to marriage,
procreation, contraception, family relationship, and child rearing and education.”7
Such a right, the Court concluded, “is broad enough to encompass a woman’s
decision whether or not to terminate her pregnancy.”8
With respect to protection of the right against state interference, the Court held
that since the right of personal privacy is a fundamental right, only a “compelling
state interest” could justify its limitation by a state. Thus while it recognized the
legitimacy of the state interest in protecting maternal health and the preservation of
the fetus’ potential life, and the existence of a rational connection between these two
interests and the state’s anti-abortion law, the Court held these interests insufficient
to justify an absolute ban on abortions.9 Instead, the Court emphasized the durational
nature of pregnancy and held the state’s interests to be sufficiently compelling to
permit curtailment or prohibition of abortion only during specified stages of
pregnancy. The High Court concluded that until the end of the first trimester, an
abortion is no more dangerous to maternal health than childbirth itself, and found
that: “[W]ith respect to the State’s important and legitimate interest in the health of
the mother, the ‘compelling’ point, in light of present medical knowledge, is at
approximately the end of the first trimester.”10 Only after the first trimester does the
state’s interest in protecting maternal health provide a sufficient basis to justify state
regulation of abortion, and then only to protect this interest.11
Roe, 410 U.S. at 152.
Roe, 410 U.S. at 152-3.
Roe, 410 U.S. at 153.
Roe, 410 U.S. at 148-50.
Roe, 410 U.S. at 163.
Roe, 410 U.S. at 163-4.
The “compelling” point with respect to the state’s interest in the potential life
of the fetus “is at viability.” Following viability, the state’s interest permits it to
regulate and even proscribe an abortion except when necessary, in appropriate
medical judgment, for the preservation of the life or health of the mother.12 The
Court defined viability as the point at which the fetus is “potentially able to live
outside the mother’s womb, albeit with artificial aid.”13 It summarized its holding
(a) For the stage prior to approximately the end of the first trimester [of
pregnancy], the abortion decision and its effectuation must be left to the medical
judgment of the pregnant woman’s attending physician.
(b) For the stage subsequent to approximately the end of the first trimester, the
State, in promoting its interest in the health of the mother, may, if it chooses,
regulate the abortion procedure in ways that are reasonably related to maternal
(c) For the stage subsequent to viability, the State, in promoting its interest in the
potentiality of human life 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.14
In Doe, the Court reiterated its holding in Roe that the basic decision of when
an abortion is proper rests with the pregnant mother and her physician, but extended
Roe by warning that just as states may not prevent abortion by making their
performance a crime, states may not make abortions unreasonably difficult to obtain
by prescribing elaborate procedural barriers. In Doe, the Court struck down state
requirements that abortions be performed in licensed hospitals; that abortions be
approved beforehand by a hospital committee; and that two physicians concur in the
abortion decision.15 The Court appeared to note, however, that this would not apply
to a statute that protected the religious or moral beliefs of denominational hospitals
and their employees.16
The Court in Roe also dealt with the question whether a fetus is a person and
thereby protected under the Fourteenth Amendment and other provisions of the
Constitution. The Court indicated that the Constitution never specifically defines,
“person,” but added that in nearly all the sections where the word person appears,
“the use of the word is such that it has application only post-natally. None indicates
with any assurance, that it has any possible pre-natal application.”17 The Court
emphasized that, given the fact that in the major part of the 19th century prevailing
Roe, 410 U.S. at 163-4.
Roe, 410 U.S. at 160.
Roe, 410 U.S. at 164-5.
Doe, 410 U.S. at 196-9.
Doe, 410 U.S. at 197-8.
Roe, 410 U.S. at 157.
legal abortion practices were far freer than today, the Court was persuaded “that the
word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.”18
The Court did not, however, resolve the question of when life actually begins.
While noting the divergence of thinking on this issue, it instead articulated the legal
concept of “viability,” defined as the point at which the fetus is potentially able to
live outside the womb, although the fetus may require artificial aid.19 Many other
questions were also not addressed in Roe and Doe, but instead formed the grist for
a burgeoning book of post-Roe litigation.
III. Public Funding of Abortions
Two categories of public funding cases have been heard and decided by the
Supreme Court: those involving (1) funding restrictions for nontherapeutic (elective)
abortions; and (2) funding limitations for therapeutic (medically necessary) abortions.
(1) The 1977 Trilogy -- Restrictions on Public Funding of Nontherapeutic or
The Supreme Court, in three related decisions, ruled on the question whether the
Medicaid statute or the Constitution requires public funding of nontherapeutic
(elective) abortions for indigent women or access to public facilities for the
performance of such abortions.20 The Court held that the states have neither a
statutory nor a constitutional obligation in this regard.
In Beal v. Doe, the Court held that nothing in the language or legislative history
of Title XIX of the Social Security Act (Medicaid) requires a participating state to
fund every medical procedure falling within the delineated categories of medical
care. The Court ruled that it was not inconsistent with the Act’s goals to refuse to
fund unnecessary medical services. However, the Court did indicate that Title XIX
left a state free to include coverage for nontherapeutic abortions should it choose to
do so. Similarly, in Maher v. Roe, the Court held that the Equal Protection Clause
of the U.S. Constitution does not require a state participating in the Medicaid
program to pay expenses incident to nontherapeutic abortions simply because the
state has made a policy choice to pay expenses incident to childbirth. More
particularly, Connecticut’s policy of favoring childbirth over abortion was held not
to impinge upon the fundamental right of privacy recognized in Roe, which protects
a woman from undue interference in her decision to terminate a pregnancy. Finally,
in Poelker v. Doe, the Court upheld a municipal regulation that denied indigent
pregnant women nontherapeutic abortions at public hospitals. It also held that
staffing those hospitals with personnel opposed to the performance of abortions did
not violate the Equal Protection Clause of the Constitution. Poelker, however, did
Roe, 410 U.S. at 158.
Roe, 410 U.S. at 160.
See Beal v. Doe, 432 U.S. 438 (1977); Maher v. Roe, 432 U.S. 464 (1977); Poelker v.
Doe, 432 U.S. 519 (1977) (per curiam).
not deal with the question of private hospitals and their authority to prohibit abortion
(2) Public Funding of Therapeutic or Medically Necessary Abortions
The 1977 Supreme Court decisions left open the question whether Federal law,
such as the Hyde Amendment, or similar state laws, could validly prohibit
governmental funding of therapeutic abortions.
The Court ruled 5-4 that the Hyde Amendment’s abortion funding restrictions
were constitutional. The majority found that the Hyde Amendment neither violated
the Due Process or Equal Protection guarantees of the Fifth Amendment nor the
Establishment [of religion] Clause of the First Amendment. The Court also upheld
the right of a state participating in the Medicaid program to fund only those medically
necessary abortions for which it received Federal reimbursement.21 In companion
cases raising similar issues, the Court held that a State of Illinois statutory funding
restriction comparable to the Federal Hyde Amendment also did not contravene the
constitutional restrictions of the Equal Protection Clause of the Fourteenth
Amendment.22 The Court’s rulings mean there is no statutory or constitutional
obligation of the states or the Federal Government to fund all medically necessary
IV. Supreme Court Decisions Subsequent to Roe and Doe
Involving the Substantive Right to Abortion
Informed Consent/Waiting Periods. In Planned Parenthood v. Danforth,
the Court held that informed consent statutes, which require a doctor to obtain the
written consent of a woman after informing her of the dangers of abortion and
possible alternatives, are constitutional if the requirements are related to maternal
health and are not overbearing.23 The fact that the informed consent laws must define
their requirements very narrowly in order to be constitutional was later confirmed the
Supreme Court in 1979.24 The requirements of an informed consent statute must also
be narrowly drawn so as not to unduly interfere with the physician-patient
relationship, although the type of information required to be given to a woman of
necessity may vary according to the trimester of her pregnancy.
In City of Akron v. Akron Center for Reproductive Health, Inc., along with
various other provisions, the Court struck down the informed written consent section
of the ordinance.25 This provision required that the attending doctor inform the
woman “of the status of her pregnancy, the development of her fetus, the date of
See Harris v. McRae, 448 U.S. 297 (1980)
See Williams v. Zbaraz; Miller v. Zbaraz; U.S. v. Zbaraz, 448 U.S. 358 (1980).
428 U.S. 52 (1976).
See Freiman v. Ashcroft, 584 F.2d 247, 251 (8th Cir. 1978), aff’d mem., 440 U.S. 941
462 U.S. 416 (1983).
possible viability, the physical and emotional complications that may result from an
abortion, and the availability of agencies to provide her with assistance and
information with respect to birth control, adoption, and childbirth.”26 The attending
physician was also required to tell the patient of the risks involved and any other
information which in the physician’s medical judgment would be critical to her
decision of whether to terminate the pregnancy. The Court found this informed
consent requirement to be constitutionally unacceptable because it essentially gave
the government unreviewable authority over what information was to be given a
woman before she decided whether to have an abortion. It was also objectionable
because it intruded upon the discretion of the pregnant woman’s doctor.27
The Supreme Court also invalidated the 24-hour waiting period, holding that
the City of Akron had not shown that any legitimate state interest was being served
“by an arbitrary and inflexible waiting period.”
Spousal/Parental Consent. In addition to informed consent, the Court in
Danforth, found that spousal consent statutes, which require a written statement by
the father of the fetus affirming his consent to the abortion, are unconstitutional if the
statutes allow the husband to unilaterally prohibit the abortion in the first trimester.
It should be noted that on the same day that the Supreme Court decided Danforth, it
also summarily affirmed the lower court decision in Coe v. Gerstein, which held
unconstitutional a spousal consent law regardless of the stage of the woman’s
With respect to parental consent statutes, the Supreme Court held in Danforth
that statutes which allow a parent or guardian to absolutely prohibit an abortion to be
performed on a minor child were unconstitutional. Subsequently, in Bellotti v. Baird,
the Court ruled that while a state may require a minor to obtain parental consent, it
must also provide an alternative procedure to procure authorization if parental
consent is denied or the minor does not want to seek it.29 Bellotti thus entitles a
minor to some proceeding which allows her to prove her ability to make an informed
decision independent of her parents or, even if she is incapable of making the
decision, at least showing that the abortion would be in her best interests.
In City of Akron, the Court invalidated the provision in the Akron ordinance
which prohibited a doctor from performing an abortion on an unemancipated minor
unless the doctor obtained “the informed written consent of one of her parents or her
legal guardian” or unless the minor herself obtained “an order from a court having
jurisdiction over her that her abortion be performed or induced.”30 The Court relied
on its earlier rulings in Danforth and Bellotti to conclude that the City of Akron could
“not make a blanket determination that all minors under the age of 15 are too
City of Akron, 462 U.S. at 442.
City of Akron, 462 U.S. at 445.
376 F.Supp. 695 (S.D. Fla. 1974), aff’d, 428 U.S. 901 (1976).
443 U.S. 622 (1979).
City of Akron, 462 U.S. at 439.
immature to make this decision or that an abortion never may be in the minor’s best
interests without parental approval.”31 Moreover, the Akron ordinance’s provision
concerning parental approval did not create expressly the alternative judicial
procedure required by Bellotti. Thus, the ordinance’s consent provision had to fall
because it foreclosed any possibility for “case-by-case evaluations of the maturity of
In Planned Parenthood Association of Kansas City, Missouri Inc. v. Ashcroft,
the Supreme Court upheld Missouri’s parental consent requirement.33 It
distinguished the provision involved here from that challenged in City of Akron. The
Missouri requirement, unlike the Akron one, did provide an alternative procedure by
which a pregnant immature minor could show in court that she was sufficiently
mature to make the abortion decision herself or that, despite her immaturity, an
abortion would in her best interests.
Parental Notification. In 1981, the Court upheld a Utah state law making it
a crime for doctors to perform an abortion on an unemancipated, dependent minor
without notifying her parents. In H. L. v. Matheson, a 6-3 decision, the Court
examined the narrow question of the facial constitutionality of a statute requiring a
physician to give notice to parents, “if possible,” prior to performing an abortion on
their minor daughter: (a) when the girl is living with and dependent upon her
parents; (b) when she is not emancipated by marriage or otherwise; and (c) when she
has made no claim or showing as to her maturity or as to her relationship with her
parents.34 The Supreme Court cited the interest in preserving family integrity and
protecting adolescents in allowing states to require that parents be informed that their
daughter is seeking an abortion, and emphasized that the statute in question did not
give a veto power over the minor’s abortion decision. The Court rejected the minor
woman’s contention that abortion was being singled out for special treatment in
contrast to other surgical procedures, like childbirth, which do not require parental
In 1987, an equally divided Supreme Court, without opinion, let stand a 7th
Circuit Court of Appeals decision invalidating an Illinois law that required teenagers
to notify their parents prior to obtaining an abortion.35 The tie vote meant that the
ruling set no nationwide precedent. There are other states with parental notification
laws similar to the one in Illinois.
During its October 1989 Term, the Court decided two cases involving
challenges to the constitutionality of state parental notification laws.36 In the
City of Akron, 462 U.S. at 440.
City of Akron, 462 U.S. at 441 (quoting Bellotti, 443 U.S. at 642 n.23.).
462 U.S. 476 (1983).
450 U.S. 398 (1981).
See Hartigan v. Zbaraz, 484 U.S. 171 (1987).
See Hodgson v. Minnesota, 497 U.S. 417 (1990); Ohio v. Akron Center for Reproductive
Minnesota case, the Court held 5 to 4 that a state requirement for notice to be given
to both parents prior to a minor’s having an abortion was unconstitutional unless the
state legislature provided for an alternative hearing in court, i.e., a judicial bypass
The Court ruled 6 to 3 in the Ohio case that Ohio’s law requiring notice to one
parent with a judicial bypass option was constitutional. Justice Kennedy wrote the
opinion for the majority. Both the Minnesota and Ohio decisions have been viewed
as consistent with the Court’s prior rulings concerning parental consent requirements
Miscellaneous. (1) Reporting Requirements
The Court in Danforth ruled that statutes requiring doctors and health facilities
to provide information to states regarding each abortion performed are constitutional.
The Court specified, however, that these reporting requirements must relate to
maternal health, remain confidential, and may not be overbearing.37
In Ashcroft, the Court upheld the pathology report requirement. This provision
was “related to generally accepted medical standards” and “further[s] important
health-related State concerns.”38 The Court further found that the cost of the tissue
examination “does not significantly burden a pregnant woman’s abortion decision.”39
(2) Advertisement of Abortion Services
The Supreme Court held in Bigelow v. Virginia, that a state may not proscribe
advertising regarding the availability of an abortion or abortion-related services in
another state.40 The Court found that the statute in question was unconstitutional
because the State of Virginia, where the advertisement appeared, had only a minimal
interest in the health and medical practices of New York, the state in which the legal
abortion services were located.
(3) Abortions by Nonphysicians
In Connecticut v. Menillo, the Supreme Court ruled that state statutes similar to
the Texas law challenged in Roe were constitutional to the extent that the statutes
forbid nonphysicians from performing abortions.41 The Roe decision made it clear
that a state could not interfere with a woman’s decision, made in consultation with
and upon the advice of her doctor, to have an abortion in the first trimester of her
Health, 497 U.S. 502 (1990).
Danforth, 428 U.S. at 80-1.
Ashcroft, 462 U.S. at 487.
Ashcroft, 462 U.S. at 490.
421 U.S. 809 (1975).
423 U.S. 9 (1975).
pregnancy. The Menillo Court found that pre-Roe restrictive abortion laws were still
enforceable against nonphysicians.42
(4) Locus of Abortions
In City of Akron, the Court invalidated the challenged Akron ordinance
provision relating to where abortions can be performed. The requirement stated that
any second trimester abortion had to be performed in a full-service hospital. The
accreditation of these facilities required compliance with comprehensive standards
governing an extensive variety of health and surgical services. The result was that
abortions under this section of the Akron ordinance could not be performed in
outpatient facilities that were not part of an acute-care, full-service hospital. The
Court found this restriction unconstitutional, noting that the possibility of having to
travel to find facilities could result in both financial expense and added risk to a
woman’s health.43 The Court also cited changed medical circumstances, and the
availability of safer procedures for performing second trimester abortions since Roe,
for its conclusion that the Akron hospitalization requirement imposed an
unreasonable burden on a woman’s right to an abortion.
In Ashcroft, the Court invalidated Missouri’s second trimester hospitalization
requirement by the same 6-3 vote as in City of Akron. It said its decision and
rationale in City of Akron were controlling.
In Simopoulos v. Virginia, the Supreme Court ruled that Virginia’s mandatory
hospitalization requirement for second trimester abortions was constitutional.44 The
Court distinguished the requirement in question from those it invalidated in City of
Akron and Ashcroft which mandated that all second trimester abortions be performed
in acute-care facilities. In Simopoulos, the Court said that, in contrast, the Virginia
law did not require that second trimester abortions be performed exclusively in fullservice hospitals. The determination upholding the Virginia provision actually turned
on the definition of “hospital.” The Court wrote: “Under Virginia’s hospitalization
requirement, outpatient surgical hospitals may qualify for licensing as `hospitals’ in
which second-trimester abortions lawfully may be performed.”45
(5) Viability, Fetal Testing, and Disposal of Fetal Remains
The Supreme Court’s articulation of the concept of viability has required further
elaboration, particularly with regard to the critical question of who defines at what
point a fetus has reached viability. In Roe, the Court defined viability as the point at
which the fetus is “potentially able to live outside the mother’s womb, albeit with
artificial aid.”46 Such potentiality, however, must be for “meaningful life” and this
Menillo, 423 U.S. at 9-11.
City of Akron, 462 U.S. at 435.
462 U.S. 506 (1983).
Simopoulos, 462 U.S. at 516.
Roe, 410 U.S. at 160.
cannot encompass simply momentary survival.47 The Court also noted that while
viability is usually placed at about 28 weeks, it can occur earlier and essentially left
the point flexible for anticipated advances in medical skill. Finally, Roe stressed the
central role of the pregnant woman’s doctor, emphasizing that “the abortion decision
in all its aspects is inherently, and primarily, a medical decision.”48
Similar themes were stressed in Danforth, in which a Missouri law, which
defined viability as “that stage of fetal development when the life of the unborn child
may be continued indefinitely outside the womb by natural or artificial life support
systems”, was attacked as an attempt to advance the point of viability to an earlier
stage of gestation. The Court disagreed, finding the statutory definition consistent
with Roe. It reemphasized that viability is “a matter of medical judgment, skill, and
technical ability” and that Roe meant to preserve the flexibility of the term.49
Moreover, the Danforth Court held that “it is not the proper function of the
legislature or the courts to place viability, which is essentially a medical concept, at
a specific point in the gestation period. The time when viability is achieved may vary
with each pregnancy, and the determination of whether a particular fetus is viable is,
and must be, a matter for the judgment of the attending physician.”50 The physician’s
central role in determining viability, and the lack of such definitional authority in the
legislatures and courts, was reaffirmed by the Court in Colautti v. Franklin.51
In Danforth, the Court ruled that fetal protection statutes were generally
overbroad and unconstitutional if they pertained to pre-viable fetuses. Such statutes
require a doctor performing an abortion to use available means and medical skills to
save the life of the fetus. In Colautti, the Supreme Court held subsequently that such
fetal protection statutes could only apply to viable fetuses and that the statute must
be precise in setting forth the standard for determining viability. In addition, the
Court in Colautti stressed that in order to meet the constitutional test of sufficient
certainty, fetal protection laws had to define whether a doctor’s paramount duty was
to the patient or whether the physician had to balance the possible danger to the
patient against the increased odds of fetal survival.52
In Ashcroft, the Court found that the second-physician requirement during the
third trimester was permissible under the Constitution because it “reasonably furthers
the State’s compelling interest in protecting the lives of viable fetuses . . .”53
In City of Akron, the Court ruled that the portion of the Akron ordinance
requiring that physicians performing abortions see to it that the remains of the unborn
child be disposed of “in a humane and sanitary” way was void for vagueness. The
Roe, 410 U.S. at 163.
Roe, 410 U.S. at 160.
Danforth, 428 U.S. at 64.
439 U.S. 379 (1979).
Colautti, 439 U.S. at 379, 397-401.
Ashcroft, 462 U.S. at 486.
level of uncertainty present was unacceptable in a situation such as this where there
was the prospect of criminal liability being imposed.54
V. Setting the Stage for Casey: Webster v. Reproductive
The 1983 Supreme Court decisions in City of Akron, Ashcroft, and Simopoulos
settled questions relating to hospital requirements for second trimester abortions,
informed consent requirements, waiting periods, parental notification and consent,
and disposal of fetal remains. The Supreme Court reaffirmed its decision in Roe and
its intention to continue to follow the trimester framework balancing a woman’s
constitutional right to decide whether to terminate a pregnancy with the State’s
interest in protecting potential life. The State’s interest in protecting potential life
becomes “compelling” at the point of viability, i.e., when the fetus can exist outside
of a woman’s womb either on its own or through artificial means. The definition of
viability is the one used by the Court in its Roe decision in 1973. Again, in 1986, the
Court reaffirmed Roe in Thornburgh v. American College of Obstetricians and
In 1989, the Supreme Court upheld the constitutionality of the State of
Missouri’s abortion statute in Webster v. Reproductive Health Services.56 In this 5-4
decision, while the majority did not overrule Roe, it indicated that it was willing to
apply a less stringent standard of review to state restrictions on abortion. Webster
made it clear that state legislatures have considerable discretion to pass restrictive
legislation in the future, with the likelihood that such laws would probably pass
The main provisions in the 1986 Missouri law upheld by the Court included: (1)
barring public employees from performing or assisting in abortions not necessary to
save the life of the mother; (2) barring the use of public buildings for performing
abortions, despite the fact that there were no public monies involved (e.g., a building
situated on public land); and (3) requiring physicians believing a woman desiring an
abortion to be at least 20 weeks pregnant to perform tests to determine whether the
fetus is viable. The Court’s majority chose not to rule on the Missouri law’s
Preamble language which described life as beginning at conception with
constitutional protections attaching at that point. Chief Justice Rehnquist, writing for
the Court, said that the Preamble by its terms did not regulate abortion, and that it
was an expression of a value judgment favoring childbirth over abortion. He noted
that the Court in past cases has emphasized that Roe implies no limitation on a
State’s authority to make such a value judgment. The Webster ruling was narrow in
that it did not affect private doctors’ offices or clinics, where most abortions are
performed. Its significance derives more from the rationales articulated by the five
justices regarding how abortion restrictions would be reviewed in the future. Webster
set the stage for the Court’s 1992 decision in Casey.
City of Akron, 462 U.S. at 451.
476 U.S. 747 (1986).
492 U.S. 490 (1989).
The majority opinion in Webster became splintered when the justices reviewed
the Missouri provision respecting a doctor’s testing for viability at 20 weeks of
pregnancy. While the five justices (Rehnquist, White, Kennedy, Scalia, and
O’Connor) agreed that the provision was constitutional, they had different reasons
for so holding. Chief Justice Rehnquist, joined by Justices White and Kennedy,
agreed with the district court and court of appeals that the required tests added
increased costs to obtaining a second trimester abortion. In Roe, the Court had held
that in the second trimester of pregnancy, the state could regulate abortion only in the
interests of the health of the mother; and that it is only after viability (when the fetus
can exist outside the womb on its own or through artificial means) that states are
allowed to actually restrict abortions in the interests of protecting the fetus, i.e.,
potential life. A plurality disagreed with the Roe reasoning in this context and with
the trimester framework upon which it is predicated. Chief Justice Rehnquist and
Justices White and Kennedy instead proposed to apply a new standard of review for
state abortion restrictions: whether the state regulation “permissibly furthers the
State’s interest in protecting potential human life”. They concluded that the Missouri
law’s viability testing requirements did and therefore found that provision to be
constitutional. The plurality put in doubt the whole concept of “viability” as the basis
of determining when the state’s interest in regulating abortion pertains: “we do not
see why the State’s interest in protecting potential human life should come into
existence only at the point of viability, and there should therefore be a rigid line
allowing state regulation after viability but prohibiting it before viability.”
However, because the Missouri law did not limit abortions prior to viability, the
plurality did not believe it was necessary to consider overruling Roe. Also, Chief
Justice Rehnquist stated that the Missouri statute was different from the Texas statute
challenged in Roe -- the latter being a criminal abortion law. The plurality stated that
it was instead modifying and narrowing Roe for application in future cases involving
challenges to the constitutionality of state abortion restrictions.
Justice Scalia wrote a separate concurrence because he believed that the Court
did not go far enough. He would have overruled Roe explicitly. Justice O’Connor,
also a part of the majority, wrote a separate concurrence as well but for different
reasons. She was not ready to go as far as Justice Scalia and overrule Roe; nor was
she prepared to join the plurality and dispense with the trimester framework of Roe
at this time. She stated in concurrence that the trimester system was problematic, but
that there was no need to modify it in Webster because the validity of the Missouri
law’s viability provision could be decided under existing precedent, i.e., Roe and
succeeding decisions. She applied a standard of “undue burden” and found the
restriction to be constitutional: “requiring the performance of examinations and tests
useful to determining whether a fetus is viable, when viability is possible, and when
it would not be medically imprudent to do so, does not impose an undue burden on
a woman’s abortion decision.”
VI. A Shift in Direction: Planned Parenthood of Southeastern
Pennsylvania v. Casey
In 1991, the Court in Rust v. Sullivan upheld on both statutory and constitutional
grounds HHS’ Title X regulations restricting recipients of Federal family planning
funding from counseling women about the option of abortion.57 This case can better
be described as one involving a challenge to First Amendment free speech rights than
to the constitutionally guaranteed substantive right to an abortion; however,
following its earlier public funding cases (Maher v. Roe and Harris v. McRae) as
precedent, the Court did conclude that a woman’s right to an abortion was not
burdened by these regulations. The Court reasoned that there was no such violation
because the Government has no duty to subsidize an activity simply because it is
constitutionally protected and because a woman is “in no worse position than if
Congress had never enacted Title X.”
Both Webster and Rust energized legislative activity, the former at both the
Federal and state levels, and the latter only at the Federal level. Some of the state
legislative proposals that have become law have been challenged in the courts, e.g.,
Pennsylvania, Guam, Louisiana, and Utah. The Pennsylvania case, Planned
Parenthood of Southeastern Pennsylvania v. Casey, was decided by the U.S.
Supreme Court on June 29, 1992.58 In a highly fractionated 5-4 decision, the Court
reaffirmed the basic constitutional right to an abortion while simultaneously allowing
some new restrictions. Justices O’Connor, Kennedy and Souter wrote the plurality
opinion, and they were joined in part by Justices Stevens and Blackmun. Chief
Justice Rehnquist and Justices White, Scalia and Thomas dissented. The Court
refused to overrule Roe, and the plurality explained at length why it was important
to follow precedent. “The Constitution serves human values, and while the effect of
reliance on Roe cannot be exactly measured, neither can the certain cost of overruling
Roe for people who have ordered their thinking and living around that case be
dismissed.”59 At the same time, the plurality indicated that state laws which
contained an outright ban on abortion would be unconstitutional. Nevertheless, the
Court abandoned the trimester framework articulated in Roe and the strict scrutiny
standard of judicial review of abortion restrictions. Instead, it adopted a new
analysis, “undue burden.” Courts will now need to ask the question whether a state
abortion restriction has the effect of imposing an “undue burden” on a woman’s right
to obtain an abortion. “Undue burden” was defined as a “substantial obstacle in the
path of a woman seeking an abortion of a nonviable fetus.”60
The Court applied this new analysis to the Pennsylvania statute and concluded
that four of the provisions did not impose an undue burden on the right to abortion
and were constitutional. Those provisions upheld were the 24-hour waiting period;
informed consent; parental consent by minors with a judicial bypass; and reporting
requirements. The Court also upheld the “medical emergency” definition under
which other requirements can be waived. The spousal notification provision,
requiring a married woman to tell her husband she intends to have an abortion, did
not survive the “undue burden” test, and it was struck down as being
unconstitutional. The dissenters would have upheld all of the provisions in the
Pennsylvania law as well as overturn Roe itself. Justices Stevens and Blackmun
500 U.S. 173 (1991).
505 U.S. 833 (1992).
Casey, 505 U.S. at 856.
Casey, 505 U.S. at 877.
wrote separate opinions. They joined the plurality in holding the spousal notification
provision unconstitutional. Justice Stevens was vague concerning whether he was
accepting the new “undue burden” analysis, but he did indicate that his application
of it might be more stringent than the plurality’s. On the other hand, Justice
Blackmun stated that he would retain the analysis used in Roe, i.e., strict scrutiny.
The Court’s decision in Casey was significant because it appeared that the new
standard of review would allow more state restrictions to pass constitutional muster.
The decision was also noteworthy because the Court found that the state’s interest in
protecting the potentiality of human life extended throughout the course of the
pregnancy, and thus the state could regulate, even to the point of favoring childbirth
over abortion, from the outset. Under Roe, which utilized the trimester framework,
during the first trimester of pregnancy, the woman’s decision to terminate her
pregnancy was reached in consultation between her and her doctor with virtually no
state involvement. Also, under Roe, abortion was a “fundamental right” that could
not be restricted by the state except to serve a “compelling” state interest. Roe’s
strict scrutiny form of review resulted in most state regulations being invalidated
during the first two trimesters of pregnancy. The “undue burden” standard seems to
allow more regulation during that period. This is evident from the Court’s
overruling, in part, two of its earlier decisions which had followed Roe: City of Akron
and Thornburgh v. American College of Obstetricians and Gynecologists.61 In those
cases, the Court, applying strict scrutiny, struck down 24-hour waiting periods and
informed consent provisions. In contrast, the Court in Casey upheld similar
provisions after applying the undue burden standard.
Applying Casey: Stenberg v. Carhart
Following Casey, the Court appeared reluctant to review another abortion case.
Between 1992 and 1993, the Court declined to hear appeals in three abortion cases.62
Contrary decisions by the U.S. Court of Appeals regarding the validity of state
statutes prohibiting “partial-birth” abortions, as well as congressional interest in
enacting federal partial-birth legislation may have prompted the Court to decide
Stenberg v. Carhart.63
The term “partial-birth abortion” refers generally to a method of abortion
commonly called “dilation and extraction” or “D & X” by the medical community.
D & X involves the extraction, from the uterus and into the vagina, of all of the body
of a fetus except the head.64 The fetus is then killed by extracting the contents of the
skull, and an intact fetus is delivered.65 D & X is one of several abortion methods.
Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747
See Ada v. Guam, 113 S.Ct. 633 (1992); Barnes v. Moore, 113 S.Ct. 656 (1992); Barnes
v. Mississippi, 114 S.Ct. 468 (1993).
530 U.S. 914, 120 S.Ct. 2597 (2000).
See Stenberg, 120 S.Ct. at 2607-8.
“Dilation and evacuation” or “D & E” is the most common procedure.66 D & E
involves the dilation of the cervix and the dismemberment of the fetus inside the
uterus.67 Fetal parts are later removed from the uterus either with forceps or by
suction. The procedural similarities between the D & X and D & E procedures have
prompted concern that the language of state partial-birth abortion bans may prohibit
both methods of abortion.68
In Stenberg, a Nebraska physician who performs abortions at a specialized
abortion facility sought a declaration that Nebraska’s partial-birth abortion ban
statute violates the U.S. Constitution. The Nebraska statute provides:
No partial birth abortion shall be performed in this state, unless such procedure
is necessary to save the life of the mother whose life is endangered by a physical
disorder, physical illness, or physical injury, including a life-endangering
physical condition caused by or arising from the pregnancy itself.69
The term “partial birth abortion” is defined by the statute as “an abortion procedure
in which the person performing the abortion partially delivers vaginally a living
unborn child before killing the unborn child and completing the delivery.”70 The
term “partially delivers vaginally a living unborn child before killing the unborn
child” is further defined as “deliberately and intentionally delivering into the vagina
a living unborn child, or a substantial portion thereof, for the purpose of performing
a procedure that the person performing such procedure knows will kill the unborn
child and does kill the unborn child.”71 Violation of the statute carries a prison term
of up to twenty years and a fine of up to $25,000. In addition, a doctor who violates
the statute is subject to the automatic revocation of his license to practice medicine
Among his arguments, Dr. Carhart maintained that the meaning of the term
“substantial portion” in the Nebraska statute is unclear and thus, could include the
common D & E procedure in its ban of partial-birth abortions. Because the Nebraska
Stenberg, 120 S.Ct. at 2606.
See Women’s Medical Professional Corporation v. Voinovich, 130 F.3d 187, 199 (6th Cir.
1997), cert. denied, 523 U.S. 1036 (1998) (“The primary distinction between the two
procedures is that the D & E procedure results in a dismembered fetus while the D & X
procedure results in a relatively intact fetus. More specifically, the D & E procedure
involves dismembering the fetus in utero before compressing the skull by means of suction,
while the D & X procedure involves removing intact all but the head of the fetus from the
uterus and then compressing the skull by means of suction. In both procedures, the fetal
head must be compressed, because it is usually too large to pass through a woman’s dilated
cervix. In the D & E procedure, this is typically accomplished by either suctioning the
intracranial matter or by crushing the skull, while in the D & X procedure it is always
accomplished by suctioning the intracranial matter.”).
Neb. Rev. Stat. § 28-328(1).
Neb. Rev. Stat. § 28-326(9).
legislature failed to provide a definition for “substantial portion,” the U.S. Court of
Appeals for the Eighth Circuit interpreted the Nebraska statute to proscribe both the
D & X and D & E procedures: “if ‘substantial portion’ means an arm or a leg - and
surely it must - then the ban . . . encompasses both the D & E and the D & X
procedures.”72 The Eighth Circuit acknowledged that during the D & E procedure,
the physician often inserts his forceps into the uterus, grasps a part of the living fetus,
and pulls that part of the fetus into the vagina. Because the arm or leg is the most
common part to be retrieved, the physician would violate the statute.73
The state argued that the statute’s scienter or knowledge requirement limited its
scope and made it applicable only to the D & X procedure. According to the state,
the statute applied only to the deliberate and intentional performance of a partial birth
abortion; that is, the partial delivery of a living fetus vaginally, the killing of the
fetus, and the completion of the delivery.74 However, the Eighth Circuit found that
the D & E procedure involves all of the same steps: “The physician intentionally
brings a substantial part of the fetus into the vagina, dismembers the fetus, leading
to fetal demise, and completes the delivery. A physician need not set out with the
intent to perform a D & X procedure in order to violate the statute.”75
The Supreme Court affirmed the Eighth Circuit’s decision by a 5-4 margin. The
Court based its decision on two determinations. First, the Court concluded that the
Nebraska statute lacks any exception for the preservation of the health of the mother.
Second, the Court found that the statute imposes an undue burden on the right to
choose abortion because its language covers more than the D & X procedure.
Despite the Court’s previous instructions in Roe and Casey, that abortion
regulation must include an exception where it is “necessary, in appropriate medical
judgment, for the preservation of the life or health of the mother,” the state argued
that Nebraska’s partial-birth abortion statute does not require a health exception
because safe alternatives remains available to women and a ban on partial-birth
abortions would create no risk to the health of women.76 Although the Court
conceded that the actual need for the D & X procedure is uncertain, it recognized that
the procedure could be safer in certain circumstances.77 Thus, the Court stated, “a
statute that altogether forbids D & X creates a significant health risk . . . [t]he statute
consequently must contain a health exception.”78
In its discussion of the undue burden that would be imposed if the Nebraska
statute was upheld, the Court maintained that the plain language of the statute covers
Carhart v. Stenberg, 192 F.3d 1142, 1150 (8th Cir. 1999).
Carhart, 192 F.3d at 1150.
Stenberg, 120 S.Ct. at 2610 (quoting Roe, 410 U.S. at 164-65).
Stenberg, 120 S.Ct. at 2613.
both the D & X and D & E procedures.79 Although the Nebraska State Attorney
General offered an interpretation of the statute that differentiated between the two
procedures, the Court was reluctant to recognize such a view. Because the Court
traditionally follows lower federal court interpretations of state law and because the
Attorney General’s interpretative views would not bind state courts, the Court held
that the statute’s reference to the delivery of “a living unborn child, or a substantial
portion thereof” implicates both the D & X and D & E procedures.80
Because the Stenberg Court was divided by only one member, Justice
O’Connor’s concurrence has raised concern among those who support a woman’s
right to choose. Justice O’Connor’s concurrence indicates that a state statute
prohibiting partial-birth abortions would likely withstand a constitutional challenge
if it includes an exception for situations where the health of the mother is at issue,
and if it is “narrowly tailored to proscribing the D & X procedure alone.”81 Justice
O’Connor identifies Kansas, Utah, and Montana as having partial-birth abortion
statutes that differentiate appropriately between D & X and the other procedures.82
Justice O’Connor’s identification of these state statutes suggests her willingness to
find partial-birth legislation constitutional if it meets the required criteria.83
Stenberg, 120 S.Ct. at 2614.
Stenberg, 120 S.Ct. at 2616.
Stenberg, 120 S.Ct. at 2619. See also Stenberg, 120 S.Ct. at 2620 (“If there were adequate
alternative methods for a woman safely to obtain an abortion before viability, it is unlikely
that prohibiting the D & X procedure alone would ‘amount in practical terms to a substantial
obstacle to a woman seeking an abortion’ [citation omitted] . . . Thus, a ban on partial-birth
abortion that only proscribed the D & X method of abortion and that included an exception
to preserve the life and health of the mother would be constitutional in my view.”).
See Stenberg, 120 S.Ct. at 2619.
See also Jon O. Shimabukuro, Partial-Birth Abortion: Recent Developments in the Law,
CRS Report RL30415 (2001).