A Legal History of Abortion
in America
Current Issues - LHS
Definitions
• Abortion – induced
termination of pregnancy
• Due Process –
administering justice
according to est. rules
and principles
• Right to Privacy – nonconstitutional legal right
to be free of
unsanctioned intrusion • Trimester – one third of
length of pregnancy
• Federal Court System
(13 wks)
Pre 1973 Abortion Law
• Comstock Law (1873)
• Federal law enacted
prohibiting "obscene, lewd,
and/or lascivious" materials
through the US mail (ex.:
pornography)
• Also included materials
concerning education about
contraceptives or abortion
• Also made illegal sending
actual contraceptives or
abortion equipment through
mail
Pre 1973 Abortion Law
• Generally, abortions
themselves were a matter of
state, not federal law
• Each state legislature passed its
own laws regarding abortion
• Issues included legality, availability,
consent required, minimum age
requirements
• By 1910, all but one state had
criminalized abortions except
where necessary, in MD’s
opinion, to save mother’s life
• Result = Illegal, or “back alley”
abortions
Pre-1973
Abortion Law
Abortion laws in the United
States prior to Roe v. Wade
=> Illegal
=> Legal in cases of
rape.
=> Legal in cases of
danger to
woman's health.
=> Legal in cases of
danger to
woman's health,
rape or incest,
or likely
damaged fetus.
=> Legal upon
request.
Pre 1973 Abortion Law
• Types of Illegal abortions
• Self induced abortions through
“natural” methods
• Abortionists who might have
had little medical training
• Unsanitary conditions (home or
dirty clinic)
• Thousands of women were
treated in hospitals after illegal
abortion performed; many died
from their injuries
• Private physicians also
performed abortions
• Expensive, exclusive option
Pre 1973 Abortion Law
• Liberalization of abortion
law
• 1936: Federal appeals court
ruled that gov’t couldn’t
interfere with doctor
prescribed contraceptives
• Griswold v. CT (1965):
USSC ruled contraceptives
could be bought by married
couples w/o restriction
• Eisenstadt v. Baird (1972):
extended contraceptive
legality to unmarried couples
Estelle Griswold
Roe v. Wade (1973)
• Case arose in Texas
• TX law made abortions
illegal except in case of
rape, incest
• “Jane Roe” became
pregnant and sought an
abortion
• District court issued an
injunction (a legal order
saying “STOP!”) against the
TX law
• Wade, the DA, filed an
appeal
Roe v. Wade (1973)
• Case filed in 1970;
due to length of
case, baby born and
put up for adoption
• USSC heard case
and issued its 7-2
decision in January
1973
Roe v. Wade decision
• Majority found women
had a “fundamental
right” to an abortion
• Individuals have personal
liberty, based on 14th
amendment EP / DP clauses
• Gov’t should not interfere
with a person’s personal
liberty
• “Personal liberty” included
woman’s right to an abortion
Roe v. Wade
• USSC also found state had
important interests in
regulating abortions
• Interest in reducing risky illegal
abortion procedure
• Interest in protecting life of
unborn fetus
• BUT USSC ruled that privacy
right of woman outweighed
states’ interest in regulating
abortion, requiring balancing
of interests
Roe v. Wade
• Allowable regulation of
abortions
• 1st trimester: no
restrictions allowed on
abortions
• 2nd trimester: state may
only restrict abortion in
ways related to health of
mother
• 3rd trimester: state can
choose to restrict or forbid
abortion to protect life of
fetus
Effect of Roe v. Wade
• Effectively created right
Number of abortions, by year
to abortion on demand,
in USA
• Reported abortions
since 1973, in America,
total 50,766,331,
according to Planned
Parenthood
Post Roe v. Wade
• Evolving abortion law
• Women don’t need consent
of spouses or parents, if
over 18 years, to have an
abortion (1976)
• Minor girls don’t need
parental consent to have an
abortion, if they can show
they are mature enough to
make decision (1978)
• No obligation for public
funding of abortions (1980)
Post Roe v. Wade
• Evolving abortion law
• 2nd trimester abortions do
not have to be performed
in a hospital (clinic ok)
(1983)
• States may not verbally
discourage women from
having an abortion (script
read at clinic) (1986)
• States may not encourage
women to seek an
abortion (1991)
Casey v. Planned Parenthood
(1992)
• Major shift in abortion
law
• State law required 24
hour waiting period and
pro life pamphlet for
abortions in 1st trimester
• Minor girls required
consent of at least one
parent
• Represented a
significant weakening
of Roe v. Wade