Recent Legal History of Abortion in the United States

Though there is evidence of a few rogue doctors and midwives performing abortions in the U.S. as far back as the 1850s, the first concerted effort to overturn state laws prohibiting abortion began in 1957, when a group of prominent lawyers, law professors and judges, as members of the American Law Institute (ALI) first proposed a “model penal code” on abortion, calling for abortion to be legal in cases where there was “substantial risk that continuance of the pregnancy would gravely impair the physical or mental health of the woman, or that the child resulting from pregnancy would be born with grave physical or mental defect, or in cases of pregnancy resulting from rape or incest.”

Before states began adopting the ALI model in the late 1960s, statutes generally prohibited abortion or limited it to situations of “severe physical disease or impairment,” and states interpreted these laws rather strictly. Mississippi added an exception for rape in 1966, but the first state to specifically follow the ALI model was Colorado in April of 1967.

Several other states followed suit, with North Carolina and California passing ALI style statutes in 1967 and Georgia and Maryland doing so in 1968. By 1973, thirteen states had passed laws based on or similar to the ALI model, and in many other states and Washington, D.C., court decisions had rendered previous statutes invalid or ineffective.

Several states went beyond the ALI model, allowing abortion for any reason as long as it was performed prior to fetal viability. Abortion was virtually legal on demand in Alaska, Hawaii, New York, and Washington state prior to 1973. In other states with ALI style statutes, such as California, the maternal “mental health” exception was interpreted so broadly that abortion rates actually exceeded those of states with more liberal laws. As efforts to liberalize abortion laws began to emerge all over the country, individuals concerned about the sanctity of life began to meet and organize. At this time is when both New Orleans and Louisiana Right to Life began its operations.

While abortion continued to be debated at the state level, the Supreme Court agreed to hear the case Roe v. Wade out of the Texas Supreme Court. In their decision on Roe, along with its companion case Doe v Bolton, on January 22, 1973, the U.S. Supreme Court struck down all state laws regarding abortion as unconstitutional, thus legalizing abortion on demand throughout all nine months of pregnancy in all fifty states.

At that point, abortion numbers began to soar in the United States and the debate was catapulted to the front of society, and has been there since. From Federal Human Life Amendments to Federal Laws to State Laws to court battles, pro-lifers have attempted numerous strategies to reduce abortion, re-criminalize it, and over-throw Roe v Wade. The closest pro-lifers came to reversing Roe v Wade was in the 1989 court decision Webster v Reproductive Health Services and the 1992 decision Planned Parenthood v. Casey. Both times, Roe was upheld but state limitation laws were upheld as constitutional.

Since Casey, pro-lifers have focused on enacting state legislation limiting abortion and at the same time promoting justices to the Supreme Court that would vote to overturn Roe v. Wade.

Assistance provided by National Right to Life

Supreme Court Abortion Decisions

Following is a brief summary of United States Supreme Court abortion decisions commencing with Roe v. Wade, giving the citations, date, holding, and author of the majority opinion.

Roe v. Wade, 410 U.S. 113 (January 22, 1973)

Roe invalidated a 19th century Texas statute prohibiting abortion except in cases where necessary to preserve maternal life, on the basis that the right of privacy secured by the Due Process clause of the Fourteenth Amendment includes a fundamental right to decide whether or not to bring a pregnancy to term. (Blackmun) Contrary to popular misconception, the 1973 Supreme Court decision did not legalize abortion only in the early months of pregnancy or under restricted circumstances. After extensive public hearings in 1982, the U.S. Senate Judiciary Committee issued an official report which concluded, "As a result of the Roe decision, a right to abortion was effectively established for the entire term of pregnancy for virtually any reason, whether for sake of personal finances, social convenience, or individual lifestyle...Thus, the Committee observes that no significant legal barriers of any kind whatsoever exist in the United States for a woman to obtain an abortion for any reason during any stage of her pregnancy." (Report of the Committee on the Judiciary, United States Senate, on S.J. Res. 110, June 8, 1982, pages 3 and 4).

Doe v. Bolton, 410 U.S. 179 (January 22, 1973)

Doe invalidated a Georgia "reform" abortion statute that permitted abortion where continued pregnancy would endanger the woman's life or health, where the fetus would likely be born with a serious defect, or where pregnancy resulted from rape. The statute also required that abortion be performed in an accredited hospital, and that two physicians confirm the performing physician's judgment of necessity for the abortion. Doe is frequently cited for its definition of maternal "health" to include a broad range of factors, including general maternal "well-being," as a justification for legalized abortion during the last trimester of pregnancy. (Blackmun) In effect, so long as a woman can find a physician willing to perform an abortion, she has a constitutional right to obtain an abortion in the United States at any time throughout the nine months of pregnancy, right up to birth. Thus, the justices of the Supreme Court, disregarding prior legal tradition, overwhelming biological evidence and the ethical tradition of a majority of the American people, struck down the abortion laws of all 50 states (even the most permissive at the time) and made abortion on demand, at virtually every stage of pregnancy, the law of the land.

On January 22, 1973, the U.S. Supreme Court in two separate decisions (Roe v. Wade and Doe v. Bolton), ruled that any state abortion law in the future would have to meet the following guidelines.

  • First Trimester: During the first three months of pregnancy, the state must leave the abortion decision entirely to a woman and her physician.
  • Second Trimester: During the second three months, the state may only enact laws which regulate abortions in ways "reasonably related to maternal health." This simply means that a state may determine who is qualified to perform the abortion and where such an operation may take place. The state may not, however, enact laws which safeguard the lives of the unborn.
  • Third Trimester: After the woman's sixth or seventh month of pregnancy, the law may forbid her to have an abortion that is not determined to be necessary to preserve her "life or health." The court went on to define the word "health" in such broad terms, i.e. social well-being, as to make it virtually impossible for a state to protect the unborn child even after the sixth or seventh month of pregnancy. (Doe v. Bolton, 410 U.S. 179 stated . . . the medical judgment may be exercised in the light of all factors, physical, emotional, psychological, familial, and the woman's age, relevant to the well-being of the patient. All these factors may relate to health. This allows the attending physician the room he needs . . . 410 U.S. at 192.)

Bigelo v. Virginia, 421 U.S. 809 (1975)

This ruling invalidated a state ban on advertising for abortion. (Blackmun)

Connecticut v. Menillo, 423 U.S. 9 (1975)

This decision upheld a Connecticut anti-abortion statute as it applies to non-physicians. (Unsigned)

Singleton v. Wulff, 428 U.S. 106 (1975)

This decision held that physicians may challenge abortion funding restrictions on behalf of their female patients seeking abortions. This ruling had a strong impact upon abortion litigation, allowing physicians to act as plaintiffs instead of individual women, as in the case of Roe v. Wade. (Blackmun)

Planned Parenthood Association of Central Missouri v. Danforth, 428 U.S. 52 (1976)

As a result of the Danforth ruling, a wife may obtain an abortion without her husband's consent and, in most instances, even without his knowledge. Another result of the Court's ruling in the Danforth case is that all state laws requiring the parents' consent before an abortion is performed on their minor daughter are now invalid. In addition, states may not prohibit the use of a particular type of abortion method nor require physicians to take as much care to save the life of an aborted baby as if the baby were born prematurely. This decision was decided by votes of 6-3 and 5-4, with Blackmun writing the opinion and dissension by Chief Justice Burger, Justices White, Rehnquist and Stevens in part.

Beal v. Doe, 432 U.S. 438 (1977)

This first court ruling in a series of 1977 abortion funding cases was upheld by 6-3 vote, Brennan, Marshall and Blackmun dissenting. The case involved a Pennsylvania restriction on the use of Medicaid funds for abortions to those that are "medically necessary" and was unsuccessfully challenged using the argument that the policy violated Title XIX of the Social Security Act. (Powell)

Maher v. Roe, 432 U.S. 464 (1977)

This second case in a series of 1977 abortion funding cases was upheld by 6-3 vote with Brennan, Marshall and Blackmun dissenting. The case dealt with a Connecticut regulation restricting the use of Medicaid funds to those abortions that are "medically necessary." It was challenged on constitutional grounds of due process and equal protection. It was reasoned that the state is free to use its power of funding to encourage childbirth over abortion. The case also noted that, "a woman has at least an equal right to choose to carry her fetus to term as to choose to abort it." (Powell)

Poelker v. Doe, 432 U.S. 519 (1977)

This case was third in a series of 1977 abortion funding cases decided by a 6-3 vote with Brennan, Marshall and Blackmun dissenting. A St. Louis policy against performance of abortion in public hospitals was upheld by the court. A city may choose to provide publicly financed hospital services for childbirth, but may choose to bar abortions in its public hospitals. (Unsigned)

Colautti v. Franklin, 439 U.S. 379 (1979)

This case invalidated a Pennsylvania statute that created a standard for determination of viability of the unborn child. A state may not require doctors doing abortions to protect the life of the fetus whenever they have reason to believe it might survive the abortion. This case was decided by a 6-3 vote with Burger, White and Rehnquist dissenting. (Blackmun)

Bellotti v. Baird, Hunerwald v. Baird, 443 U.S. 622 (1979)

This ruling invalidated a Massachusetts statute requiring parental consent. The states requiring the consent of parents to abortions upon minors must afford minors an alternative opportunity for authorization of the abortion where the minor may demonstrate that either she is mature enough to make her own decision, or that the abortion would be in her best interests. However, five justices stated that they would accept some form of parental notification. The vote was 8-1 with White dissenting. (Powell)

McRae v. Secretary of H.E.W. (Harris), Zbaraz v. Quern (Williams), 448 U.S. 297/358 (1980)

This case contested the Hyde Amendment, restricting the use of federal funds for abortion to those necessary to preserve the life of the mother. The amendment was challenged as a denial of due process, equal protection, freedom of religion, and as an establishment of Roman Catholic dogma in violation of the First Amendment. It was determined that there is nothing unconstitutional about the Hyde Amendment; the federal government may refuse to pay for most abortions for welfare women. In addition, states are under no obligation to pay for such abortions if federal funds for reimbursement are withdrawn. This was perhaps the most significant Supreme Court holding on abortion outside of Roe v. Wade. (Stewart)

H.L. v. Matheson, 450 U.S. 398 (1981)

The Court upheld a Utah statute requiring that the parents of an unemancipated minor be informed by a physician, "if possible," before he performs an abortion on her. (Burger)

Planned Parenthood Association of Kansas City, MO v. City Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983)

The Supreme Court ruled as unconstitutional the requirement that abortions after 12 weeks (or the first trimester) of pregnancy be performed in a hospital. It required consent of parents for all abortions performed on minors under the age of 15, requiring detailed information on medical risks of abortion, fetal development, and abortion alternatives to be given to women prior to abortions, and requiring a 24-hour waiting period between giving of the required information and performance of the abortion. It also required that the remains of the aborted baby be disposed of in a human and sanitary manner. A significant dissenting opinion was written by Justice O'Connor in her first abortion case. (Powell)

Bowen v. American Association Thornburgh v. ACOG Bowen v. American Association of Hospitals et al. (June 9, 1986)

In a 5-3 decision, the U.S. Supreme Court struck down Reagan Administration regulations (based upon the 1973 Rehabilitation Act and known as the Baby Doe Regulations) which were intended to prevent discriminatory non-treatment of handicapped newborn infants. The Court relied heavily upon the right of parents to refuse treatment for their children. (Stevens, Powell, Marshall, Blackmun, Burger for plurality with White, O'Connor, Brennan dissenting.)

Planned Parenthood Association of Kansas City, MO v. Ashcroft, 462 U.S. 506 (1983).

The Supreme Court upheld the requirements of a pathology report for each abortion, the presence of a second physician at post-viability abortions, and parental or juvenile court consent for minors seeking an abortion. (Powell)

Thornburgh v. American Colleges of Obstetricians and Gynecologists, 476 U.S. 747 (1986)

The Supreme Court invalidated the provisions of the Pennsylvania Abortion Control Act concerning informed consent, informational reporting requirements, and protection of viable unborn children. This decision is notable for the hostility of the majority of five Justices to apparently mild forms of abortion regulation, and the strong dissents from four Justices calling for re-examination of reversal of Roe v. Wade. Concurring: Blackmun, Powell, Stevens, Brennan and Marshall, dissenting: White, Rehnquist, O'Connor and Burger. (Blackmun)

Hartigan v. Zbaraz (1987)

In a 4-4 vote, the Supreme Court left standing a lower court's decision which struck down parts of the 1983 Illinois parental notification of abortion law requiring either that an abortion provider inform parents 24 hours before their minor child can have an abortion or that the girl receive a judge's permission to "bypass" her parents.

Bowen v. Kendrick (1988)

The Supreme Court upheld the constitutionality of the Adolescent Family Life Act (AFTL). The Court recognized that AFTL prohibits funding to programs which perform, counsel, or (with narrow exceptions) refer for abortion, and requires promotion of adoption as an alternative to abortion. But, the Court said, "[That] approach is not inherently religious, although it may coincide with the approach taken by certain religions."

Webster v. Reproductive Health Services, 492 U.S. 490 (1989)

The Supreme Court upheld a Missouri statute regulating abortion requirements for viability tests after twenty weeks. The Court provided the state with new authority to limit abortions in the areas of public funding and post viability abortions. (Rehnquist)

Hodgson v. Minnesota, 110 S. Ct. 2926 (June 25, 1990)

This case found that the 14th Amendment to the Constitution requires that a law mandating that both parents of an underage girl be notified before an abortion is performed on her is permissible only if it includes a provision that a judge may make exceptions on various grounds. The law may require a 48-hour waiting period between notification and the performance of the abortion to give the parents a realistic opportunity to talk to the daughter.

Cruzan v. Director, Missouri Department of Health (June 25, 1990

In a 5-4 decision written by Chief Justice Rehnquist, the court upheld the decision of the Missouri Supreme Court that denied Nancy Cruzan's guardians the authority to withhold food and fluids from her.

Ohio v. Akron Center for Reproductive Health, 110 S. Ct. 2972 (June 25, 1990)

This ruling found that a state may require an abortionist to notify the parents of an underage girl before performing an abortion on her, provided that the law allows a judge to make exceptions and authorize an abortion without informing the parents whenever it is believed that it would be in the girl's "best interests."

Rust v. Sullivan, 59 L.W. 4451 (May 23, 1991)

The Court upheld the Reagan Administration regulations regarding Title X. The Court stated that federal guidelines prohibiting the use of federal monies for counseling and referring for abortions were constitutional. (Rehnquist)

Planned Parenthood of Southeastern Pennsylvania v. Casey (June 28, 1992)

The Supreme Court, in a split decision, upheld Pennsylvania abortion regulations on informed consent requirements, parental consent, 24-hour waiting period, and abortion reporting. In a 5-4 split, the Court struck the spousal notification law and reaffirmed Roe v. Wade. The Court also adopted a new "undue burden" test. (Delivered jointly: O'Connor, Kennedy, Souter).

Casey v. Planned Parenthood (June 29, 1992)

The court in split decisions upheld Pennsylvania statute abortion regulations on parental consent, informed consent, 24-hour waiting period, and abortion reporting. In a 5-4 split, the court struck the spousal notification and reaffirmed Roe v. Wade. The court adopted an "undue burden test."

Bray v. Alexandria Women's Clinic (Jan. 13, 1993)

The Court ruled 5-4 that the anti-Ku Klux Klan Act of 1871 could not be applied to Pro-Life protestors since opposition to abortion is not a form of discrimination against a class of persons. (Scalia)

Madsen v. Women's Health Clinic, 62 L.W. 4686 (June 30, 1994)

An injunction prohibiting Prolifers from entering a 36 foot buffer zone around the entrance of an abortion facility was upheld by the Court. The finding was that the injunction was directed at the protestors conduct, not their speech content and did not violate the First Amendment. (Rehnquist)

Schenk v. Pro-Choice Network, (February 1997)

The Supreme Court ruled that "floating buffer zones" around abortion clinics limit free speech, and are therefore unconstitutional. However, the Court did rule that a "fixed" buffer zone is constitutional, meaning that an area of 15 feet from the clinic entrance is to remain "off grounds" to demonstrators.

Mazurek v. Armstrong, (June 16, 1997)

The Supreme Court upheld a Montana statute that specifically disqualified physician assistants from performing abortions.

Hill v. Colorado, (June 28, 2000)

In a 6-3 decision, the Court upheld a Colorado law that places restrictions on abortion clinic demonstrations. The "bubble" law creates an 8 foot buffer around persons entering abortion facilities. It is a restriction upon the free speech rights of abortion protestors.

Stenberg v. Carhart, (June 28, 2000)

In a 5-4 ruling the Court overturned the Nebraska law which banned partial birth abortions. The decision altered the Casey decision and expanded the health exception. Those dissenting included Rehnquist, Scalia, Kennedy and Thomas.

Greenville Women's Clinic, (February 26, 2001)

In refusing to hear a challenge to South Carolina's abortion clinic regulations, the U.S. Supreme Court let stand a lower court ruling that the regulations are constitutional.

Court cases provided by Texas Right to Life