1821 Connecticut becomes the first state to outlaw abortions

1
A Bit of Legal History
1821 Connecticut becomes the first state to
outlaw abortions 1845 A Massachusetts judge
rules that abortion with the woman's consent is
not punishable before "quickening" begins.
1900s Abortions, although illegal nationwide,
are believed to end, by some estimates, one in
three or four pregnancies. 1921 Margaret Sanger
founds the American Birth Control League, which
evolves into the Planned Parenthood Federation
of America in 1942. 1936 The federal law
prohibiting the dissemination of contraceptive
information through the mail is modified and
birth control information is no longer
classified as obscene. 1960 The Food and Drug
Administration approves birth control
pills. 1965 Griswold v. Connecticut, Supreme
Court strikes down the one remaining state law
prohibiting the use of contraceptives by
married couples. 1972 Eisenstadt v. Baird,
Supreme Court rules that the right to privacy
includes an unmarried person's right to use
contraceptives. 1973 Roe v. Wade Supreme Court
establishes a woman's right to safe and legal
abortion, overriding the anti-abortion laws of
many states. 1979 -1992 A number of legal
cases brought before the court to try to restrict
abortion and/or overturn Roe. 1992 Planned
Parenthood vs. Casey, Supreme Court upholds the
requirements of a 24-hour waiting period,
mandatory anti-abortion counseling, parental
consent for minors and record-keeping by
doctors. The Supreme Court abandons the
"trimester" approach to abortion that was
institutionalized in Roe vs. Wade and which
outlined a woman's and states' rights during each
trimester of a pregnancy. Justices also rule
that a state may assert its interest in the fetus
throughout a pregnancy, but determine that states
may not place substantial obstacles in the path
of a woman seeking an abortion.
2
Roe v. Wade
JUSTICE BLACKMUN writing for the majority We
forthwith acknowledge our awareness of the
sensitive and emotional nature of the abortion
controversy, of the vigorous opposing views, even
among physicians, and of the deep and seemingly
absolute convictions that the subject inspires.
One's philosophy, one's experiences, one's
exposure to the raw edges of human existence,
one's religious training, one's attitudes toward
life and family and their values, and the moral
standards one establishes and seeks to observe,
are all likely to influence and to color one's
thinking and conclusions about abortion. In
addition, population growth, pollution, poverty,
and racial overtones tend to complicate and not
to simplify the problem. Our task, of course, is
to resolve the issue by constitutional
measurement, free of emotion and of predilection.
We seek earnestly to do this, and, because we do,
we have inquired into, and in this opinion place
some emphasis upon, medical and medical-legal
history and what that history reveals about man's
attitudes toward the abortion procedure over the
centuries. Three reasons given to explain the
enactment of criminal abortion laws in the 19th
century and to justify their continued
existence. 1. To discourage illicit sexual
conduct. 2. Concern with abortion as a medical
procedure. (When most criminal abortion laws
were first enacted, the procedure was a hazardous
one for the woman, particularly prior to the
development of antisepsis) 3. The State's
interest in protecting prenatal life. Some of
the argument for this justification rests on the
theory that a new human life is present from the
moment of conception. The State's interest and
general obligation to protect life then extends,
it is argued, to prenatal life. Only when the
life of the pregnant mother herself is at stake,
balanced against the life she carries within her,
should the interest of the embryo or fetus not
prevail. Logically, of course, a legitimate state
interest in this area need not stand or fall on
acceptance of the belief that life begins at
conception or at some other point prior to live
birth. In assessing the State's interest,
recognition may be given to the less rigid claim
that as long as at least potential life is
involved, the State may assert interests beyond
the protection of the pregnant woman alone.
3
Roe v. Wade The Ruling
Balancing Choice and State Interests in
Protecting Potential Life The detriment that
the State would impose upon the pregnant woman by
denying this choice altogether is apparent.
Specific and direct harm medically diagnosable
even in early pregnancy may be involved.
Maternity, or additional offspring, may force
upon the woman a distressful life and future.
Psychological harm may be imminent. Mental and
physical health may be taxed by child care. There
is also the distress, for all concerned,
associated with the unwanted child, and there is
the problem of bringing a child into a family
already unable, psychologically and otherwise, to
care for it. In other cases, as in this one, the
additional difficulties and continuing stigma of
unwed motherhood may be involved. All these are
factors the woman and her responsible physician
necessarily will consider in consultation. On the
basis of elements such as these, some argue that
the woman's right is absolute and that she is
entitled to terminate her pregnancy at whatever
time, in whatever way, and for whatever reason
she alone chooses. With this we do not
agree. The Court's decisions recognizing a
right of privacy also acknowledge that some state
regulation in areas protected by that right is
appropriate... a State may properly assert
important interests in safeguarding health, in
maintaining medical standards, and in protecting
potential life. At some point in pregnancy, these
respective interests become sufficiently
compelling to sustain regulation of the factors
that govern the abortion decision. The privacy
right involved, therefore, cannot be said to be
absolute. A state criminal abortion statute of
the current Texas type, that excepts from
criminality only a lifesaving procedure on behalf
of the mother, without regard to pregnancy stage
and without recognition of the other interests
involved, is violative of the Due Process Clause
of the Fourteenth Amendment. (a) For the stage
prior to approximately the end of the first
trimester, 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
health. (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.
4
After Roe, 34 states passed new abortion laws,
many of which were designed to limit abortions.
1973 Doe v. Bolton 410 U.S.179 7-2
Vote Nature of Case Challenge to a Georgia law
prohibiting abortions except in cases of medical
necessity, rape, incest, and fetal abnormality.
The Georgia law also required that all abortions
be performed in accredited hospitals and that two
doctors and a committee concur in the woman's
abortion decision and that only Georgia
residents may obtain abortions in that
State. Holding The law is unconstitutional. It
violates a woman's right to choose abortion and
the residency requirement violates the Privileges
and Immunities Clause of the Constitution. 1976
Planned Parenthood of Central Missouri v.
Danforth 428 U.S.52 5-4 Vote Nature of Case
Challenge to a Missouri law requiring (a)
parental consent to a minor's abortion (b)
husband's consent to a married woman's abortion
(c) the woman's written informed consent (d)
that no second-trimester abortion be done by
saline amniocentesis and (e) that abortion
providers do certain record keeping and
reporting. Holding Parental and spousal consent
requirements held unconstitutional because they
delegate to third parties an absolute veto power
over a woman's abortion decision which the state
does not itself possess. The requirement that the
woman certify that her consent is informed and
freely given is constitutional, as are the
record-keeping and reporting requirements. The
ban on saline amniocentesis is struck down
because saline amniocentesis is the most commonly
used abortion method after the first 12 weeks of
pregnancy and was shown to be less dangerous to
the woman's health than other available methods
the choice of method must be left to the
physician. 1976 Bellotti v. Baird (Bellotti I)
428 U.S. 132 9-0 Vote Nature of Case
Challenge to a Massachusetts law that required
consent of both parents to a minor's abortion but
allowed the requirement to be waived by a judge
for "good cause shown." Holding The statute may
be constitutional, depending on the meaning of
"good cause" and exact procedure that will be
utilized. Case remanded for definitive
interpretation by Massachusetts state courts of
meaning of the statute.
5
1977 Maher v. Roe 432 U.S. 464 6-3
Vote Nature of Case Challenge to Connecticut's
limitation of state Medicaid funding to medically
necessary abortions and refusal to fund
"elective" abortions. Holding The law is
constitutional. The state need not fund a woman's
exercise of her right to choose abortion even
though it pays the costs of childbirth. 1977
Poelker v. Doe 432 U.S. 519 6-3
Vote Nature of Case Challenge to a St. Louis,
Missouri, municipal policy of refusal of all
publicly financed hospital services for
"elective" abortions. Holding The law is
constitutional for the reasons stated in Maher v.
Roe (see above). 1979 Bellotti v. Baird
(Bellotti II) 443 U.S. 622 9-0 Vote Nature
of Case The Massachusetts law challenged in
Bellotti I (1976) arrived at the court
definitively interpreted by the Massachusetts
Supreme Judicial Court. The law would require,
the Massachusetts court said, (a) that a minor
first attempt to obtain her parents' consent and
be refused before approaching a court for
permission for her abortion and that parents be
notified when a minor files a petition for
judicial waiver and (b) that the judge hearing
the minor's petition may deny the petition if the
judge finds that an abortion would be against the
minor's best interests. Holding The law is
unconstitutional. All minors must have an
opportunity to approach a judge without first
consulting their parents, and the proceedings
must be confidential and expeditious. A mature
minor must be given permission for an abortion,
regardless of the judge's view as to her best
interests. Even an immature minor must be
permitted to have a confidential abortion, if the
abortion is in her best interests. 1981 H.L.
v. Matheson 450 U.S. 398 6-3 Vote Nature
of Case Challenge to a Utah law requiring the
physician to notify a parent of an unemancipated
minor prior to abortion. Holding The law is
constitutional. The plaintiff is a dependent
minor, living at home, who has made no claim that
she is mature enough to give informed consent to
abortion or that she has any problems with her
parents that make notice inappropriate. As to
this minor, the law is valid. Justices Stewart
and Powell wrote a concurring opinion to
emphasize that mature minors and those whose best
interests mandate that parents not be involved
have a right to a confidential abortion.
6
1983 City of Akron v. Akron Center for
Reproductive Health 462 U.S. 416 6-3
Vote Nature of Case Challenge to an Akron,
Ohio, ordinance requiring that (a) a woman wait
24 hours between consenting to and receiving an
abortion (b) all abortions after the first
trimester of pregnancy be performed in
full-service hospitals (c) minors under
fifteen have parental or judicial consent for an
abortion (d) the attending physician
personally give the woman information relevant to
informed consent (e) specific information be
given to a woman prior to an abortion, including
details of fetal anatomy, a list of risks and
consequences of the procedure, some of which were
false or hypothetical, and a statement that "the
unborn child is a human life from the moment of
conception" and (f) fetal remains be
"humanely" disposed of. Holding All challenged
portions of the ordinance are unconstitutional
(a) the 24-hour waiting period serves neither
the state's interest in protecting the woman's
health nor in ensuring her informed consent
(b) the post-first-trimester hospitalization
requirement interferes with a woman's access to
abortion services without protecting her health
because the dilatation and evacuation (DE)
method of mid-trimester abortion may be performed
as safely in out-patient facilities as in
full-service hospitals (c) the minors' consent
requirement fails to guarantee an adequate
judicial alternative to parental involvement (see
Bellotti II, 1979) (d) the physician
counseling requirement makes abortions more
expensive and is not necessary to ensure informed
consent since the physician can delegate the
counseling task to another qualified
individual (e) the informed consent "script"
intrudes on the physician's judgment as to what
is best for the individual woman and contains
information designed to dissuade the woman from
having an abortion and (f) the requirement for
"humane" disposal of fetal remains is too vague
to give fair warning of what the law requires.
7
1983 Planned Parenthood of Kansas City v.
Ashcroft 462 U.S. 476 (6-3 5-4
Vote) Nature of Case Challenge to a Missouri law
requiring that (a) all post-first-trimester
abortions be performed in hospitals (b) minors
under 18 have parental consent or judicial
authorization for their abortions (c) two
doctors be present at the abortion of a viable
fetus and (d) a pathologist's report be obtained
for every abortion. Holdings (a) The
hospitalization requirement is unconstitutional
for the reasons stated in City of Akron v. Akron
Center for Reproductive Health (1983) (b) the
parental consent requirement is constitutional
because the judicial bypass alternative contained
in the statute conforms to the standards set out
in Bellotti II (1979) (c) the presence of two
doctors at late abortions serves the state's
compelling interest in protecting potential life
after viability and is, therefore,
constitutional and (d) the requirement of a
pathology report is constitutional because it
poses only a small financial burden to the woman
and protects her health. 1986 Thornburgh v.
American College of Ob/Gyns 476 U.S. 747
5-4 Vote Nature of Case
Challenge to Pennsylvania's 1982 Abortion Control
Act requiring (a) that a woman be given specific
information before she has an abortion, including
state-produced printed materials describing the
fetus (b) that physicians performing
post-viability abortions use the method most
likely to result in fetal survival unless it
would cause "significantly" greater risk to a
woman's life or health (c) the presence of a
second physician at post-viability abortions (d)
detailed reporting to the state by providers on
each abortion, with reports open for public
inspection and (e) one parent's consent or a
court order for a minor's abortion. Holding (a)
the informed consent provision is invalid because
it interferes with the physician's discretion and
requires a woman to be given information designed
to dissuade her from having an abortion (b) the
provision restricting post-viability abortion
methods is invalid because it requires the woman
to bear an increased risk to her health in order
to maximize the chances of fetal survival (c)
the second-physician requirement is invalid
because it does not make an exception for
emergencies (d) the reporting requirement is
unconstitutional because it could lead to
disclosure of the woman's identity and (e) the
parental consent issue is remanded to the lower
court for consideration in light of newly enacted
state court rules. In 1992, the Supreme Court
overruled portions of this case in Planned
Parenthood v. Casey.
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1989 Webster v. Reproductive Health Services
492 U.S. 490 5-4
vote Pivotal case, poised to overturn Roe
Court now occupied by John Paul Stevens
(appt. by Pres. Ford replacing William O. Douglas
in 1975) Sandra Day OConnoer (appt. by
Reagan replacing Potter Stewart in 1981)
Antonin Scalia (appt. by Reagan replacing Warren
Burger in 1986) Anthony Kennedy (appt. by
Reagan replacing Lewis Powell in 1988) Nature of
Case Challenge to Missouri's 1986 Act (a)
declaring that life begins at conception (b)
forbidding the use of public funds for the
purpose of counseling a woman to have an abortion
not necessary to save her life (c) forbidding
the use of public facilities for abortions not
necessary to save a woman's life and (d)
requiring physicians to perform tests to
determine viability of fetuses after 20 weeks
gestational age. Holding (a) the court allowed
the declaration of when life begins to go into
effect because five justices agreed that there
was insufficient evidence that it would be used
to restrict protected activities such as choices
of contraception or abortion. Should the
declaration be used to justify such restrictions
in the future, the affected parties could
challenge the restrictions at that time (b) the
court unanimously declined to address the
constitutionality of the public funds provision.
The court accepted Missouri's representation that
this provision was not directed at the conduct of
any physician or health care provider, private or
public, but solely at those persons responsible
for expending public funds, and that the
provision would not restrict publicly employed
health care professionals from providing full
information about abortion to their clients (c)
the court upheld the provision that barred the
use of public facilities. It ruled that the state
may implement a policy favoring childbirth over
abortion by allocations of public resources such
as hospitals and medical staff and (d) the court
upheld the provision requiring viability tests by
interpreting it not to require tests that would
be "imprudent" or "careless" to perform.
9
1992 Planned Parenthood of Southeastern
Pennsylvania v. Casey 5-4 Vote Nature of Case
Challenge to Pennsylvania's 1989 Abortion Control
Act. The 1989 statute required that, except in
medical emergencies (a) a woman wait 24 hours
between consenting to and receiving an abortion
(b) the woman be given state-mandated
information about abortion and offered
state-authored materials on fetal development
(c) a married woman inform her husband of her
intent to have an abortion and (d) minors'
abortions be conditioned upon the consent,
provided in person at the clinic, of one parent
or guardian, or upon a judicial waiver. In
addition, physicians and clinics that perform
abortions were required to provide to the state
annual statistical reports on abortions performed
during the year, including the names of referring
physicians. Holding The court reaffirmed the
validity of a woman's right to choose abortion
under Roe v. Wade, but announced a new standard
of review that allows restrictions on abortion
prior to fetal viability so long as they do not
constitute an "undue burden" to the woman. A
restriction is an "undue burden" when it has the
purpose or effect of placing a substantial
obstacle in the path of a woman seeking an
abortion. Under this standard, only the husband
notification provision was considered an undue
burden and therefore unconstitutional. All the
other provisions were upheld as not unduly
burdensome. In upholding the Pennsylvania
abortion restrictions, the court overturned
portions of two of its previous rulings, City of
Akron v. Akron Center for Reproductive Health
(1983) and Thornburgh v. American College of
Obstetricians and Gynecologists (1986).
10
2000 Stenberg v. Carhart 530 U.S. 914
5-4
Vote Nature of Case Challenge to Nebraska's
partial birth abortion ban. Holding The statute
is unconstitutional because it lacks an exception
for situations when the procedure is necessary to
protect the woman's health. The exception must
allow the banned procedure both because the
woman's medical condition requires it and because
the banned procedure is less risky than others.
In addition, the statute creates an undue burden
on a woman's right to abortion because it has the
effect of outlawing the dilation and evacuation
(DE) procedure, the most commonly used method
for performing second-trimester abortions. 2003
Congress passes the Partial-Birth Abortion Ban
Act and President Bush signs it into law. The Act
defines partial-birth abortion as an abortion
in which a physician deliberately and
intentionally vaginally delivers a living, unborn
child until either the entire babys head is
outside the body of the mother, or any part of
the babys trunk past the navel is outside the
body of the mother and only the head remains
inside the womb, for the purpose of performing an
overt act (usually the puncturing of the back of
the childs skull and removing the babys brains)
that the person knows will kill the partially
delivered infant, performs this act, and then
completes delivery of the dead infant. June
2004, a California judge finds the act
unconstitutional and calls for an injunction,
Cases in New York and Nebraska are pending.
11
The Moral status of the fetus
Those who think that abortion is impermissible
think personhood is the same as life and thus
begins at conception.
Those who think that abortion is permissible
think that not all life has moral status and that
this status begins at some point after
conception.
The Debate between permissibles and
impermissibles often appears to rest on the moral
status of the fetus, whether or not the fetus is
a person.
12
Standard Right to Life Argument
1. Every fetus is a person. 2. Every person
has a right to life. 3. Therefore, every fetus
has a right to life. 4. If a being (B) has a
right to life, then an agent (A)s intentionally
ending Bs life by killing B is morally wrong
unless the killing of B serves some right of A
that is of at least as much moral importance than
Bs right to life. 5. Therefore, intentionally
ending a fetuss life by killing it is morally
wrong unless it serves some right of the mother
that is of at least as much moral importance as
the fetuss right to life. 6. Abortion
involves the intentional killing of a fetus. 7.
Therefore, abortion is morally wrong unless it
serves some right of the mother that is of at
least as much moral importance as the fetuss
right to life. 8. The right to control ones
own body is not of as much moral importance as a
right to life. 9. Thus, a person's right to
life necessarily outweighs another person's right
to control her own body. 10. Therefore,
abortion is morally wrong unless it serves some
greater right of the mother than the right to
control her own body.
Standard Right to Choice Response -- Deny 1, that
the fetus is a person. If the fetus is not a
person it doesnt have a right to life, and thus
abortion isnt morally wrong.
13
Judith Jarvis Thomsons Violinist analogy
1. The violinist is a person. 2. All persons
have a right to life. 3. Hence, The violinist
has a right to life. 4. The right to life
includes the right not to be killed. 5. It is
always impermissible to kill someone that has a
right not to be killed. 6. Hence, it is morally
impermissible to kill the violinist. 7. To
unplug yourself from the violinist is to kill the
violinist. 8. Hence, it is morally
impermissible to unplug yourself from the
violinist.
Response It isnt morally impermissible to
unplug yourself from the violinist because the
right to life does not includes the right not to
be killed only the right not to be killed
unjustly. What makes a killing unjust? 1. B
has the right to demand X from A only if A has
granted B the right to X. 2. B has the right to
the use of As body only if A has granted B that
right. 2. If B does not have a right to the use
of As body because A has not granted B that
right, then it is not unjust for A to deprive B
of the use of As body. 3. If the use of As
body is the only way for B to stay alive but A
has not granted B that right then it is not
unjust for A to kill B (or allow B to die) In
cases of rape and contraception failure, the
pregnant woman has not granted the fetus the
right to the use of her body. In those cases,
the fetus does not have the right to the use of
the pregnant womans body. Hence, in those cases,
it is not unjust for the pregnant woman to
deprive the fetus of the use of her body and to
abort the fetus. So having an abortion in these
cases is not unjust killing.
14
The Responsibility Argument
1. A woman who has consensual intercourse
knowingly runs the risk of bringing a moral
person into existence. 2. One should bear the
consequences of all the risks one knowingly
takes. 3. Therefore, a woman who has consensual
intercourse should bear the consequences of
running the risk of bringing a moral person into
existence (i.e., carry the pregnancy to term).
Thomsons responses People seeds and Burglars
1. Pregnancy from consensual intercourse with
contraception is morally like the peopleseed
example. 2. Morally like cases are treated alike
under the same set of moral principles. 3. It is
permissible to abort the peopleseed. 4.
Therefore, it is permissible to abort the
fetus. or 1. Pregnancy from consensual
intercourse without contraception is morally like
the burglar example. 2. Morally like cases are
treated alike under the same set of moral
principles. 3. It is permissible to evict the
burglar. 4. Therefore, it is permissible to abort
the fetus
15
Mary Anne Warrens Arguments
1. If the fetus is a person, then pregnancy
due to voluntary intercourse without
contraception is analogous to the following
situation Suppose that violinists are
peculiarly prone to the sort of illness the only
cure which is the use of someone elses
bloodstream for nine months, and that because of
this there has been formed a society of music
lovers who agree that whenever a violinist is
stricken they will draw lots and the loser will,
by some means, be made the one and only person
capable of s aving him or her. You voluntarily
join the society, knowing the possible
consequences, and your name is then drawn and
you are kidnapped. 2. In that situation,
you are morally required to allow the violinist
the use of your body. 3. Treating like
cases alike, if the fetus is a person, then a
woman whos pregnancy is due to voluntary
intercourse without contraception is morally
required to allow the fetus the use of her
body.
Response 1 is false, the two situations are not
analogous. The state does not have the right to
attach as a condition of voluntarily engaging in
intercourse that a woman will refrain from having
an abortion if she should become
pregnant. Because the fetus isnt a person. If
X doesnt have any of the following
characteristics, then X isnt a person (1)
Consciousness, sentience (2) Reasoning (3)
Self-motivated activity (4) The capacity to
communicate (5) The presence of self-concepts and
self-awareness Since the fetus doesnt have any
of those characteristics the fetus isnt a person.
16
Don Marquis Argument against Abortion
Stipulate the following x is a human being iff
x is a member of the human species x is a person
iff x has most of Warrens 5 characteristics. x
is a moral agent iff x has the same moral status
as a normal, adult human being. The experiences,
activities, projects, and enjoyments that x would
enjoy were x not killed, constitute xs
future. 1. When xs future is very valuable,
killing x will deprive x of something very
valuable. 2. Depriving x of something valuable
is morally impermissible (except in certain
circumstances C). 3. Hence, when xs future is
very valuable, killing x is morally impermissible
(except in C). 4. Hence, when the fetuss future
is very valuable, having an abortion is morally
impermissible (except in C). 5, In most cases,
the fetuss future is very valuable and C is not
satisfied. 6. Hence, in most cases, having an
abortion is morally impermissible.