Amdt5.4.5.2.4.2.1 Right to an Abortion

Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

In Roe v. Wade,¹ the Court established a right of personal privacy protected by the Due Process Clause that includes the right of a woman to determine whether or not to bear a child. In doing so, the Court dramatically increased judicial oversight of legislation under the privacy line of cases, striking down aspects of abortion-related laws in practically all the states, the District of Columbia, and the territories. To reach this result, the Court first undertook a lengthy historical review of medical and legal views regarding abortion, finding that modern prohibitions on abortion were of relatively recent vintage and thus lacked the historical foundation which might have preserved them from constitutional review.² Then, the Court established that the word person as used in the Due Process Clause and in other provisions of the Constitution did not include the unborn, and therefore the unborn lacked federal constitutional protection.³ Finally, the Court summarily announced that the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action includes a right of personal privacy, or a guarantee of certain areas or zones of privacy⁴ and that [t]his right of privacy . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.⁵

It was also significant that the Court held this right of privacy to be fundamental and, drawing upon the strict standard of review found in equal protection litigation, held that the Due Process Clause required that any limits on this right be justified only by a compelling state interest and be narrowly drawn to express only the legitimate state interests at stake.⁶ Assessing the possible interests of the states, the Court rejected justifications relating to the promotion of morality and the protection of women from the medical hazards of abortions as unsupported in the record and ill-served by the laws in question. Further, the state interest in protecting the life of the fetus was held to be limited by the lack of a social consensus with regard to the issue of when life begins. Two valid state interests were, however, recognized. [T]he State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman . . . [and] it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes 'compelling.'⁷

Because medical data indicated that abortion prior to the end of the first trimester is relatively safe, the mortality rate being lower than the rates for normal childbirth, and because the fetus has no capability of meaningful life outside the mother’s womb, the Court found that the state has no compelling interest in the first trimester and the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated.⁸ In the intermediate trimester, the danger to the woman increases and the state may therefore regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health, but the fetus is still not able to survive outside the womb, and consequently the actual decision to have an abortion cannot be otherwise impeded.⁹ With respect to the State’s important and legitimate interest in potential life, the ‘compelling’ point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.¹⁰

Thus, the Court concluded that (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.

Further, in a companion case, the Court struck down three procedural provisions relating to a law that did allow some abortions.¹¹ These regulations required that an abortion be performed in a hospital accredited by a private accrediting organization, that the operation be approved by the hospital staff abortion committee, and that the performing physician’s judgment be confirmed by the independent examination of the patient by two other licensed physicians. These provisions were held not to be justified by the state’s interest in maternal health because they were not reasonably related to that interest.¹² But a clause making the performance of an abortion a crime except when it is based upon the doctor’s best clinical judgment that an abortion is necessary was upheld against vagueness attack and was further held to benefit women seeking abortions on the grounds that the doctor could use his best clinical judgment in light of all the attendant circumstances.¹³

After Roe, various states attempted to limit access to this newly found right, such as by requiring spousal or parental consent to obtain an abortion.¹⁴ The Court, however, held that (1) requiring spousal consent was an attempt by the state to delegate a veto power over the decision of the woman and her doctor that the state itself could not exercise,¹⁵ (2) that no significant state interests justified the imposition of a blanket parental consent requirement as a condition of the obtaining of an abortion by an unmarried minor during the first 12 weeks of pregnancy,¹⁶ and (3) that a criminal provision requiring the attending physician to exercise all care and diligence to preserve the life and health of the fetus without regard to the stage of viability was inconsistent with Roe.¹⁷ The Court sustained provisions that required the woman’s written consent to an abortion with assurances that it is informed and freely given, and the Court also upheld mandatory reporting and recordkeeping for public health purposes with adequate assurances of confidentiality. Another provision that barred the use of the most commonly used method of abortion after the first 12 weeks of pregnancy was declared unconstitutional because, in the absence of another comparably safe technique, it did not qualify as a reasonable protection of maternal health and it instead operated to deny the vast majority of abortions after the first 12 weeks.¹⁸

In other rulings applying Roe, the Court struck down some requirements and upheld others. A requirement that all abortions performed after the first trimester be performed in a hospital was invalidated as imposing a heavy, and unnecessary, burden on women’s access to a relatively inexpensive, otherwise accessible, and [at least during the first few weeks of the second trimester] safe abortion procedure.¹⁹ The Court held, however, that a state may require that abortions be performed in hospitals or licensed outpatient clinics, as long as licensing standards do not depart from accepted medical practice.²⁰ Various informed consent requirements were struck down as intruding upon the discretion of the physician, and as being aimed at discouraging abortions rather than at informing the pregnant woman’s decision.²¹ The Court also invalidated a 24-hour waiting period following a woman’s written, informed consent.²²

On the other hand, the Court upheld a requirement that tissue removed in clinic abortions be submitted to a pathologist for examination, because the same requirements were imposed for in-hospital abortions and for almost all other in-hospital surgery.²³ The Court also upheld a requirement that a second physician be present at abortions performed after viability in order to assist in saving the life of the fetus.²⁴ Further, the Court refused to extend Roe to require states to pay for abortions for the indigent, holding that neither due process nor equal protection requires government to use public funds for this purpose.²⁵

The equal protection discussion in the public funding case bears closer examination because of its significance for later cases. The equal protection question arose because public funds were being made available for medical care to indigents, including costs attendant to childbirth, but not for expenses associated with abortions. Admittedly, discrimination based on a non-suspect class such as indigents does not generally compel strict scrutiny. However, the question arose as to whether such a distinction impinged upon the right to abortion, and thus should be subjected to heightened scrutiny. The Court rejected this argument and used a rational basis test, noting that the condition that was a barrier to getting an abortion—indigency—was not created or exacerbated by the government.

In reaching this finding the Court held that, while a state-created obstacle need not be absolute to be impermissible, it must at a minimum unduly burden the right to terminate a pregnancy. And, the Court held, to allocate public funds so as to further a state interest in normal childbirth does not create an absolute obstacle to obtaining and does not unduly burden the right.²⁶ What is interesting about this holding is that the undue burden standard was to take on new significance when the Court began raising questions about the scope and even the legitimacy of Roe.

Although the Court expressly reaffirmed Roe v. Wade in 1983,²⁷ its 1989 decision in Webster v. Reproductive Health Services²⁸ signaled the beginning of a retrenchment. Webster upheld two aspects of a Missouri statute regulating abortions: a prohibition on the use of public facilities and employees to perform abortions not necessary to save the life of the mother; and a requirement that a physician, before performing an abortion on a fetus she has reason to believe has reached a gestational age of 20 weeks, make an actual viability determination.²⁹ This retrenchment was also apparent in two 1990 cases in which the Court upheld both one-parent and two-parent notification requirements.³⁰

Webster, however, exposed a split in the Court’s approach to Roe v. Wade. The plurality opinion by Chief Justice Rehnquist, joined in that part by Justices White and Kennedy, was highly critical of Roe, but found no occasion to overrule it. Instead, the plurality’s approach sought to water down Roe by applying a less stringent standard of review. For instance, the plurality found the viability testing requirement valid because it permissibly furthers the State’s interest in protecting potential human life.³¹ Justice O’Connor, however, concurred in the result based on her view that the requirement did not impose an undue burden on a woman’s right to an abortion, while Justice Scalia’s concurrence urged that Roe be overruled outright. Thus, when a Court majority later invalidated a Minnesota procedure requiring notification of both parents without judicial bypass, it did so because it did not reasonably further any legitimate state interest.³²

Roe was not confronted more directly in Webster because the viability testing requirement, as characterized by the plurality, merely asserted a state interest in protecting potential human life after viability, and hence did not challenge Roe’s ‘trimester framework.³³ Nonetheless, a majority of Justices appeared ready to reject a strict trimester approach. The plurality asserted a compelling state interest in protecting human life throughout pregnancy, rejecting the notion that the state interest should come into existence only at the point of viability;³⁴ Justice O’Connor repeated her view that the trimester approach is problematic;³⁵ and, as mentioned, Justice Scalia would have done away with Roe altogether.

Three years later, however, the Court invoked principles of stare decisis to reaffirm Roe’s essential holding, although it had by now abandoned the trimester approach and adopted Justice O’Connor’s undue burden test and Roe’s essential holding.³⁶ According to the Court in Planned Parenthood of Southeastern Pennsylvania v. Casey,³⁷ the right to abortion has three parts. First is a recognition of the right of a woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure. Second is a confirmation of the State’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger a woman’s life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.

This restatement of Roe’s essentials, recognizing a legitimate state interest in protecting fetal life throughout pregnancy, necessarily eliminated the rigid trimester analysis permitting almost no regulation in the first trimester. Viability, however, still marked the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions,³⁸ but less burdensome regulations could be applied before viability. What is at stake, the three-Justice plurality asserted, is the woman’s right to make the ultimate decision, not a right to be insulated from all others in doing so. Regulations which do no more than create a structural mechanism by which the State . . . may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman’s exercise of the right to choose. Thus, unless an undue burden is imposed, states may adopt measures designed to persuade [a woman] to choose childbirth over abortion.³⁹

Casey did, however, overturn earlier decisions striking down informed consent and 24-hour waiting periods.⁴⁰ Given the state’s legitimate interests in protecting the life of the unborn and the health of the potential mother, and applying undue burden analysis, the three-Justice plurality found these requirements permissible.⁴¹After The Court also upheld application of an additional requirement that women under age 18 obtain the consent of one parent or avail themselves of a judicial bypass alternative.

On the other hand, the Court⁴² distinguished Pennsylvania’s spousal notification provision as constituting an undue burden on a woman’s right to choose an abortion. A State may not give to a man the kind of dominion over his wife that parents exercise over their children (and that men exercised over their wives at common law).⁴³ Although there was an exception for a woman who believed that notifying her husband would subject her to bodily injury, this exception was not broad enough to cover other forms of abusive retaliation, e.g., psychological intimidation, bodily harm to children, or financial deprivation. To require a wife to notify her husband in spite of her fear of such abuse would unduly burden the wife’s liberty to decide whether to bear a child.

The passage of various state laws restricting so-called partial birth abortions gave observers an opportunity to see if the undue burden standard was in fact likely to lead to a major curtailment of the right to obtain an abortion. In Stenberg v. Carhart,⁴⁴ the Court reviewed a Nebraska statute that forbade partially delivering vaginally a living unborn child before killing the unborn child and completing the delivery. Although the state argued that the statute was directed only at an infrequently used procedure referred to as an intact dilation and excavation, the Court found that the statute could be interpreted to include the far more common procedure of dilation and excavation.⁴⁵ The Court also noted that the prohibition appeared to apply to abortions performed by these procedures throughout a pregnancy, including before viability of the fetus, and that the sole exception in the statute was to allow an abortion that was necessary to preserve the life of the mother.⁴⁶ Thus, the statute brought into question both the distinction maintained in Casey between pre-viability and post-viability abortions, and the oft-repeated language from Roe that provides that abortion restrictions must contain exceptions for situations where there is a threat to either the life or the health of a pregnant woman.⁴⁷ The Court, however, reaffirmed the central tenets of its previous abortion decisions, striking down the Nebraska law because its possible application to pre-viability abortions was too broad, and the exception for threats to the life of the mother was too narrow.⁴⁸

Only seven years later, however, the Supreme Court decided Gonzales v. Carhart,⁴⁹ which, although not formally overruling Stenberg, appeared to signal a change in how the Court would analyze limitations on abortion procedures. Of perhaps greatest significance is that Gonzales was the first case in which the Court upheld a statutory prohibition on a particular method of abortion. In Gonzales, the Court, by a 5-4 vote,⁵⁰ upheld a federal criminal statute that prohibited an overt act to kill a fetus where it had been intentionally deliver[ed] . . . [so that] in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother.⁵¹ The Court distinguished this federal statute from the Nebraska statute that it had struck down in Stenberg, holding that the federal statute applied only to the intentional performance of the less-common intact dilation and excavation. The Court found that the federal statute was not unconstitutionally vague because it provided anatomical landmarks that provided doctors with a reasonable opportunity to know what conduct it prohibited.⁵² Further, the scienter requirement (that delivery of the fetus to these landmarks before fetal demise be intentional) was found to alleviate vagueness concerns.⁵³

In a departure from the reasoning of Stenberg, the Court held that the failure of the federal statute to provide a health exception⁵⁴ was justified by congressional findings that such a procedure was not necessary to protect the health of a mother. Noting that the Court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty, the Court held that, at least in the context of a facial challenge, such an exception was not needed where [t]here is documented medical disagreement whether the Act's prohibition would ever impose significant health risks on women.⁵⁵ The Court did, however, leave open the possibility that as-applied challenges could still be made in individual cases.⁵⁶

As in Stenberg, the prohibition considered in Gonzales extended to the performance of an abortion before the fetus was viable, thus directly raising the question of whether the statute imposed an undue burden on the right to obtain an abortion. Unlike the statute in Stenberg, however, the ban in Gonzales was limited to the far less common intact dilation and excavation procedure, and consequently did not impose the same burden as the Nebraska statute. The Court also found that there was a rational basis for the limitation, including governmental interests in the expression of respect for the dignity of human life, protecting the integrity and ethics of the medical profession, and the creation of a dialogue that better informs the political and legal systems, the medical profession, expectant mothers, and society as a whole of the consequences that follow from a decision to elect a late-term abortion.⁵⁷

The Court revisited the question of whether particular restrictions place a substantial obstacle in the path of women seeking a pre-viability abortion and constitute an undue burden on abortion access in its 2016 decision in Whole Woman’s Health v. Hellerstedt.⁵⁸ At issue in Whole Woman’s Health was a Texas law that required (1) physicians performing or inducing abortions to have active admitting privileges at a hospital located not more than thirty miles from the facility; and (2) the facility itself to meet the minimum standards for ambulatory surgical centers under Texas law.⁵⁹ Texas asserted that these requirements served various purposes related to women’s health and the safety of abortion procedures, including ensuring that women have easy access to a hospital should complications arise during an abortion procedure and that abortion facilities meet heightened health and safety standards.⁶⁰

In reviewing Texas’s law, the Whole Woman’s Health Court began by clarifying the underlying undue burden standard established in Casey. First, the Court noted that the relevant standard from Casey requires that courts engage in a balancing test to determine whether a law amounts to an unconstitutional restriction on abortion access by considering the burdens a law imposes on abortion access together with the benefits those laws confer.⁶¹ As a consequence, the Whole Woman’s Health articulation of the undue burden standard necessarily requires that courts consider the existence or nonexistence of medical benefits when considering whether a regulation constitutes an undue burden.⁶² In such a consideration, a reviewing court, when evaluating an abortion regulation purporting to protect woman’s health, may need to closely scrutinize (1) the relative value of the protections afforded under the new law when compared to those prior to enactment⁶³ and (2) health regulations with respect to comparable medical procedures.⁶⁴ Second, the Whole Woman’s Health decision rejected the argument that judicial scrutiny of abortion regulations was akin to rational basis review,⁶⁵ concluding that courts should not defer to legislatures when resolving questions of medical uncertainty that arise with respect to abortion regulations.⁶⁶ Instead, the Court found that reviewing courts are permitted to place considerable weight upon evidence and argument presented in judicial proceedings when evaluating legislation under the undue burden standard, notwithstanding contrary conclusions by the legislature.⁶⁷

Applying these standards, the Whole Woman’s Health Court viewed the alleged benefits of the Texas requirements as inadequate to justify the challenged provisions under the precedent of Casey, given both the burdens they imposed upon women’s access to abortion and the benefits provided.⁶⁸ Specifically as to the admitting privileges requirement, the Court determined that nothing in the underlying record showed that this requirement advanced Texas’s legitimate interest in protecting women’s health in any significant way as compared to Texas’s previous requirement that abortion clinics have a working arrangement with a doctor with admitting privileges.⁶⁹ In particular, the Court rejected the argument that the admitting privileges requirements were justified to provide an extra layer of protection against abusive and unsafe abortion facilities, as the Court concluded that [d]etermined wrongdoers, already ignoring existing statutes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations.⁷⁰ On the contrary, in the Court’s view, the evidentiary record suggested that the admitting-privileges requirement placed a substantial obstacle in the path of women’s access to abortion because (1) of the temporal proximity between the imposition of the requirement and the closing of a number of clinics once the requirement was enforced;⁷¹ and (2) the necessary consequence of the requirement of foreclosing abortion providers from obtaining such privileges for reasons having nothing to do with ability to perform medical procedures.⁷² In the view of the Court, the resulting facility closures that the Court attributed to the first challenged requirement meant fewer doctors, longer wait times, and increased crowding for women at the remaining facilities, and the closures also increased driving distances to an abortion clinic for some women, amounting to an undue burden.⁷³

Similarly as to the surgical-center requirement, the Whole Woman’s Health Court viewed the record as evidencing that the requirement provides no benefits in the context of abortions produced through medication and was inappropriate as to surgical abortions.⁷⁴ In so doing, the Court also noted disparities between the treatment of abortion facilities and facilities providing other medical procedures, such as colonoscopies, which the evidence suggested had greater risks than abortions.⁷⁵ The Court viewed the underlying record as demonstrating that the surgical-center requirement would also have further reduced the number of abortion facilities in Texas to seven or eight and, in so doing, would have burdened women’s access to abortion in the same way as the admitting-privileges requirement (e.g., creating crowding, increasing driving distances).⁷⁶ Ultimately, the Court struck down the two provisions in the Texas law, concluding that the regulations in question imposed an undue burden on a large fraction of women for whom the provisions are an actual restriction.⁷⁷

Four years after Whole Woman's Health, the Court examined a Louisiana statute that was almost word-for-word identical to Texas'[s] admitting privileges law.⁷⁸ Following the approach enunciated in Whole Woman's Health, four Justices balanced the law's 'asserted benefits' against the 'burdens' it impose[d] on abortion access to determine whether the law ran afoul of the undue burden standard.⁷⁹ After examining the district court's findings and the legislative record in detail, the plurality concluded that, like Texas's law, Louisiana's admitting-privileges requirement imposed an undue, and thus unconstitutional, burden on women seeking an abortion.⁸⁰ Chief Justice Roberts provided the fifth vote in support of the Court's judgment that the law was unconstitutional.⁸¹ Although the Chief Justice viewed Whole Woman's Health as wrongly decided and disagreed with the plurality's interpretation of Casey's undue burden standard as a balancing test, he concluded that the Court was bound by stare decisis to follow that decision and treat like cases alike.⁸²