Abortion and the Protection of the Unborn:

A survey of federal and state law

 

By Mailee R. Smith

Staff Counsel, Americans United for Life

 

In Roe v. Wade,1 the United States Supreme Court (USSC) held that the right of privacy secured by the Due Process Clause of the Fourteenth Amendment includes a woman's "fundamental right" to determine whether or not to terminate her pregnancy. Since that time, legislatures have attempted to dampen the blow of abortion-on-demand by regulating the practice of abortion through legislation aimed at protecting both women and the unborn. The following is a general survey of federal and state laws regarding the most prominent of these regulations and issues.

 

Informed Consent

 

Generally, informed consent laws (also known as "women's right-to-know" laws) require that certain information be provided to a woman before her consent to an abortion is truly "informed." The USSC not only upheld Pennsylvania's informed consent law in Planned Parenthood v. Casey,2 but it also refused to review a lower court ruling which found Mississippi's informed consent law constitutional.3 The Court in Casey stated that the "right to choose" does not prohibit a state from taking steps to ensure that a woman's choice is informed and thoughtful.4 The Court held, "In attempting to ensure that a woman apprehends the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed."5

 

The USSC also upheld Pennsylvania's 24-hour reflection period. The Court stated, "The idea that important decisions will be more informed and deliberate if they follow some period of reflection does not strike us as unreasonable, particularly where the statute directs that important information become part of the background of the decision."6 While Planned Parenthood argued that such reflection periods create an undue burden on women, the Court disagreed. Instead, the USSC held that a 24-hour reflection period is not an undue burden, even if such a law has the effect of increasing the cost and risk of delay of abortions.7 The Court concluded that such information requirements are rationally related to a state's legitimate interest in assuring that a woman's consent to abortion be fully informed. Furthermore, the Court held that it is not unconstitutional to require that the physician be the person providing the mandated information.8

 

In 2007, the Court reaffirmed the states' substantial interests in providing women with accurate medical information. In Gonzales v. Carhart, the Court stated that "it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained," noting that "[s]evere depression and loss of esteem can follow."9 The Court went on to conclude that "[t]he State has an interest in ensuring so grave a choice is well informed."10 These acknowledgements pave the way for states to promulgate more protective informed consent laws.

 

Currently, 32 state informed consent laws are in effect, 24 of which require 24-hour reflection periods before the performance of an abortion.11 States have also begun requiring information be given to women regarding fetal pain, the availability of ultrasounds, and the existence of a link between abortion and breast cancer.

 

Parental Involvement

 

Parental involvement laws12 are also constitutional under the USSC's decision in Casey. Specifically, the Court stated, "Our cases establish, and we reaffirm today, that a State may require a minor seeking an abortion to obtain the consent of a parent or guardian, provided that there is an adequate judicial bypass procedure."13 The Court also stated that certain provisions have "particular force with respect to minors."14 For example, a reflection period provides parents with an opportunity to consult with their child and "discuss the consequences of her decision in the context of the values and moral or religious principles of their family."15

 

Thirty-six state parental involvement laws are currently in effect: 25 states require parental consent for minors seeking abortion, and 11 states require parental notice for minors seeking abortion. Parental involvement laws are in litigation or enjoined in seven states.

 

Partial-Birth Abortion

 

The seminal case on partial-birth abortion is Gonzales v. Carhart, decided in April 2007.16 Reacting to the Court's prior decision in Stenberg v. Carhart, the federal government had enacted the Partial Birth Abortion Ban Act of 2003, which President George W. Bush signed into law in November 2003.17 While the Act sought to prohibit the performance of partial-birth abortions across the nation, it immediately met a firestorm of litigation, culminating in the Gonzales decision.

 

Contrary to its decision in Stenberg, however, the Court upheld the federal partial-birth abortion ban in Gonzales in a 5-4 vote. While the Court distinguished the federal ban from the state ban at issue in Stenberg, the Court in Gonzales effectively threw out Stenberg and restored the guidelines set forth in Casey that are more deferential to state legislation.18 Because there were other alternative methods for late-term abortions, the Court ruled that the federal ban did not require a health exception.19 The Court also narrowed the unlimited health exception laid out in Doe v. Bolton to a focus on "significant health risks" -- effectively rejecting the contention that an unlimited emotional health exception is required for every abortion regulation.20

 

The federal ban is now the gold standard for state partial-birth abortion bans. To date, one state, Louisiana, has enacted a ban following the federal model. On the other hand, the Sixth Circuit has ruled Michigan's Legal Birth Definition Act unconstitutional.21 That Act defined a "person" as coming into existence when any part of the child is outside of the mother's body. It was not modeled after the federal ban.

 

Public Funding of Abortion

 

Congress passed the Hyde Amendment in 1976, which restricts federal funding of Medicaid abortions to cases of life endangerment, rape, and incest. In Harris v. McRae,22 the USSC upheld the Hyde Amendment and also held that states participating in the Medicaid program are not required under Title XIX of the Social Security Act to fund medically-necessary abortions for which there is no federal reimbursement. The Court also concluded that the government may rationally distinguish between abortion and other medical procedures, because "no other procedure involves the purposeful termination of a potential life."23

 

Seventeen states fund abortions for low-income women similar to the way in which they fund other pregnancy and general health services. Thirty-two states and the District of Columbia fund abortions similar to the funding under the Hyde Amendment; in other words, abortions are publicly funded for low-income women only in the case of life endangerment, rape, or incest. One state -- South Dakota -- provides coverage for abortions only in life-saving situations.

 

Abortion Clinic Regulations

 

In the late 1960s and early 1970s, proponents of abortion argued that the legalization of abortion would ensure proper surgical and follow-up care for women seeking abortion. Yet as story after story of botched abortions surface, nothing has proven to be further from the truth.24 In an attempt to remedy the substandard conditions found in abortion clinics across the nation, states have begun promulgating regulations aimed at the abortion industry. The USSC has not yet spoken on the constitutionality of state abortion clinic regulations.25 However, clinic regulations have been consistently upheld in the lower courts under Planned Parenthood v. Casey.26 For example, in Greenville Women's Clinic v. Bryant,27 the Fourth Circuit held that South Carolina's statute regulating abortion clinics28 did not place an undue burden on women seeking abortion or violate the Equal Protection Clause by distinguishing between clinics on the basis of the number of abortions performed.29 The plaintiff-abortion clinics appealed, but the USSC denied review.30 In 2002, following a second legal challenge, the Fourth Circuit again upheld South Carolina's regulations, and the USSC again denied review.31

 

To date, 23 states have enacted abortion clinic regulations that apply to all abortions, and four states regulate the provision of abortions only after the first trimester.32 Nine states have enacted regulations that are either in litigation, enjoined, or not enforced.

 

RU-486 and Emergency Contraception

 

There is currently much debate surrounding the abortion pill RU-486 and emergency contraception, or Plan B.33 On September 28, 2000, the Food and Drug Administration (FDA) approved RU-486 under Subpart H, the agency's accelerated approval regulations.34 Despite citizen petitions warning against approval of RU- 486 or requesting a stay of its approval, RU- 486 is currently available throughout the United States; any person with a medical license can prescribe the RU-486 regimen. However, Ohio has taken a step toward ensuring that the drug is used as safely as possible. In 2004, the state legislature passed a law demanding that clinics abide by the specific regimen laid out by the FDA when it approved RU-486. Unfortunately, the law has been enjoined pending the resolution of litigation.35

 

The battle surrounding the emergency contraception drug, Plan B, regards its status as a prescription drug. In 2001, a group of organizations petitioned the FDA to make Plan B available over the counter. The FDA originally denied the application, but its decision was left open for further consideration. On August 24, 2006, the FDA approved over-the-counter sales of Plan B to women 18 years of age and over. While minors under the age of 18 must have a prescription to obtain the drug, nothing prevents adults -- including adults exploiting young women -- from purchasing the drug for minors.

 

In nine states, pharmacists can dispense Plan B without a prescription simply by entering into an agreement with a physician. There has also been a push in many states to require that Plan B be readily available in hospital emergency rooms; at least 13 states require that sexual assault victims be given information about and/ or access to Plan B.

 

Protection of the Unborn

 

Two federal laws work to protect the unborn and the newly born. The first, the Born Alive Infant Protection Act, was signed by President George W. Bush on April 5, 2002. The law ensures that every infant born alive,36 including an infant who survives an abortion, is considered a "person" under federal law. In other words, such newborns are granted full legal rights no matter their development stage. The law has not been litigated.

 

On April 1, 2004, President Bush signed the Unborn Victims of Violence Act, which is more commonly known as "Laci and Conner's Law." This law recognizes that any "child in utero" who is injured or killed during a federal crime of violence is a legal victim. In addition to such federal crimes, the law covers crimes which occur in federal jurisdictions or by federal officials. In sum, a person who kills or assaults the mother of the unborn child will be charged with the death or assault of two victims: both the mother and the child. This Act has not been litigated.

 

Basically, both the Born Alive Infant Protection Act and the Unborn Victims of Violence Act mirror crimes which have been punishable at the state level for decades. For infants born alive, 21 states provide protection no matter the child's stage of development. Eight other states protect infants born alive after the point of viability. Another eight states require that third-trimester or post-viability abortions be done in such a manner as to preserve the life of the child.

 

Thirty-six states provide some degree of protection for unborn victims of violence through fetal homicide laws.37 Twenty-five of these states protect the unborn victims at any stage of gestation, and six other states protect unborn victims at later stages of gestation (but still before viability). The remaining six states protect unborn victims after viability. In addition to these fetal homicide laws, 22 states also provide protection to unborn children from nonfatal assaults. As a civil matter, seven states allow lawsuits for the wrongful deaths of unborn children regardless of the gestational age. Thirty-two states allow for wrongful death lawsuits which meet a gestational requirement, such as viability.

 

This brief survey of federal and state laws related to abortion and protection of the unborn highlights the progress being made to enshrine a culture of life in American law. As other material in Defending Life 2008 demonstrates, there is a plethora of other laws aimed at achieving the same goal: a culture in which every person is welcomed in life and protected in law.

 

Endnotes

1. 410 U.S. 113 (1973).

 

2. 505 U.S. 833 (1992).

 

3. Barnes v. Moore, 970 F.2d 12 (5th Cir. 1992), cert. denied, 506 U.S. 1013 (1992).

 

4. Casey, 505 U.S. at 872; see also id. ("[T]he State may enact rules and regulations designed to encourage her to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy to full term and that there are procedures and institutions to allow adoption of unwanted children as well as a certain degree of State assistance if the mother chooses to raise the child herself.")

 

5. Id. at 882.

 

6. Id. at 885.

 

7. See id. at 886-87.

 

8. Id. at 884.

 

9. 167 L. Ed. 2d 480, 510 (2007).

 

10. Id.

 

11. Five states have enacted informed consent laws that are either in litigation or enjoined.

 

12. Generally, parental involvement laws require either notification to a parent or guardian or a parent's or guardian's consent before a minor may undergo an abortion.

 

13. Casey, 505 U.S. at 899.

 

14. Id. at 899 (emphasis added).

 

15. Id. at 899-00.

 

16. 167 L. Ed. 2d 480 (2007).

 

17. 530 U.S. 914 (2000). In Stenberg, the Court evaluated Nebraska's ban on partial-birth abortion, or "dilation and extraction" (D&X). In holding the ban unconstitutional, the Court relied almost entirely on the statute's lack of a "health exception" for the mother. In other words, the statute did not provide that the procedure was forbidden except when the health of the mother was at issue. Unfortunately, including a health exception in partial-birth abortion bans would render such statutes meaningless because the Court previously held in Doe v. Bolton that physical, emotional, psychological and familial factors, along with the mother's age, all relate to health. 410 U.S. 179 (1973). In other words, a woman simply must claim that she is "upset" by her pregnancy, and she is entitled to abortion. Thus, a health exception would allow a woman to request a partial-birth abortion for almost any reason.

 

18. See generally, Gonzales, 167 L. Ed. 2d 480.

 

19. See id. at 513-14.

 

20. Id. at 511.

 

21. Northland Family Planning Clinic, Inc. v. Cox, 487 F.3d 323 (6th Cir. 2007).

 

22. 448 U.S. 297 (1980).

 

23. Id. at 325.

 

24. See "Abortion Clinic Regulations: Combating the 'True Back- Alley,'" infra.

 

25. But see Mazurek v. Armstrong, 520 U.S. 968 (1997) (reversing the Ninth Circuit and affirming a lower court's refusal to enjoin Montana's statute restricting the performance of abortions to licensed physicians); Simopoulos v. Va., 462 U.S. 506 (1983) (upholding Virginia's requirement that all second trimester abortions be performed in a licensed general hospital or outpatient hospital).

 

26. 505 U.S. 833 (1992).

 

27. 222 F.3d 157 (2000).

 

28. The statute required that any facility performing second trimester abortions or five or more first trimester abortions in a month be licensed by the Department of Health and Environmental Control (DHEC). Id. at 160. It also directed the DHEC to:

promulgate regulations concerning sanitation, housekeeping, maintenance, staff qualifications, emergency equipment and procedures to provide emergency care, medical records and reports, laboratory, procedure and recovery rooms, physical plant, quality assurance, infection control, and information on and access to patient follow-up care necessary to carry out the purposes of this section.

Id.

 

29. See generally Bryant, 222 F.3d 157. Specifically, the Circuit Court stated: 1) that the regulations served a valid state interest; 2) that the regulations did not "strike at the [abortion] right itself;" 3) that any increased costs were speculative and modest and had not been shown to be a burden on women seeking abortion; and 4) that the state may rationally regulate abortion clinics as a class while not regulating other clinics or medical practices. Id. at 159 (quoting Casey).

 

30. See Greenville Women's Clinic v. Bryant, 531 U.S. 1191 (2001).

 

31. See Greenville Women's Clinic v. Comm'r, S.C. Dep't of Health & Envtl. Control, 317 F.3d 357 (4th Cir. 2002), cert. denied, 538 U.S. 1008 (2003). The Fourth Circuit held as constitutional those regulations requiring that clinic doctors maintain admitting rights with local hospitals and referral arrangements with appropriate specialists and that clinics make arrangements for the consultation or referral services to clergy. See Greenville Women's Clinic, 317 F.3d at 361-64. It also rejected the abortion clinics' contention that the regulations were void for vagueness. Id. at 364-67.

 

32. Note that the breadth and degree of these regulations differ vastly from state to state.

 

33. RU-486 is a chemical abortifacient taken to end pregnancy; Plan B is claimed to prevent pregnancy.

 

34. See "U.S. Dep't of Health & Human Serv., FDA Approves Mifepristone for the Termination of Early Pregnancy," HHS News, Press Release P00-19 (Sept. 28, 2000); see also 21 C.F.R. §§ 314.500-314.560.

 

35. Planned Parenthood v. Taft, No. 04-00493 (S.D. Oh. Sept. 22, 2004).

 

36. The law defines "born alive" as meaning "every infant member of the species homo sapiens who is born alive at any stage of development." A child must display certain vital signs after expulsion from the mother in order to be covered by the Act.

 

37. The majority of states that do not have state unborn victims of violence laws abide by the "born alive" rule, which requires that an infant must be born alive and then die before the child constitutes a "person" for purposes of prosecution.