Abortion Law Development: A Brief Overview

Publication Date: January 2001

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Law and ethics

Type:

Abstract:

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 controversy.

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.