Why are reproductive issues governed variously by state laws, federal laws, and court decisions?

The p. 26↵United States Constitution created a governing system known as federalism, under which the states and the national government share powers. The Constitution is specific about which powers the federal government can exercise, reserving the remaining powers for the states. The United States Congress has the power to tax, collect, and allocate money to run the federal government. Therefore, among its other duties, Congress enacts rules and laws about how federal money can and cannot be spent. For example, Congress enacted the Helms Amendment in 1973 to forbid the use of foreign-aid funds to support abortion as a method of family planning. Congress can also pass laws that deal with crimes defined by the Constitution or those defined and/or punished by federal statutes. Thus, Congress has passed laws that protect abortion clinics against violations that constitute federal crimes.

State governments, meanwhile, deal with most criminal matters and matters having to do with family law, including marriage, divorce, adoption, child custody and support, and domestic-relations issues. Historically, before Roe v. Wade, all abortion legislation was crafted by state legislatures, and today many state legislatures are very actively involved in passing laws to severely limit or eliminate legal abortion.

A p. 27↵state court may hear a challenge to a state law that involves the interpretation of the state constitution, including, for example, a challenge to state laws regulating access to contraception or abortion. Federal courts, meanwhile, have jurisdiction over cases that involve the Constitution, the laws of the United States, and treaties made under the authority of the United States. In 2003, Congress passed and President George W. Bush signed the first federal law that banned a specific abortion procedure, the Partial Birth Abortion Ban Act of 2003. The Center for Reproductive Rights immediately challenged the bill in federal court and the judge blocked the enforcement of the federal law; ultimately the Supreme Court upheld the federal law in Gonzales v. Carhart 505 US 124 (2007).

The US Supreme Court hears cases brought by parties who are not satisfied with the decision of a US Circuit Court of Appeals. A state supreme court can petition the US Supreme Court to hear its appeal. Since 1973, the US Supreme Court has decided cases on whether there is a constitutional basis for determining the legal status of abortion (Roe v. Wade), the legality of contraception (Griswold v. Connecticut), and many other matters concerning reproductive experiences of women. But there were earlier cases that deeply affected these more famous decisions, such as Skinner v. Oklahoma, which was the first Supreme Court decision defining a reproductive right.

In Skinner v. Oklahoma (1942), a white man convicted of stealing chickens was sentenced to be sterilized under that state’s Habitual Criminal Sterilization Act of 1935. Invalidating the punishment, the Supreme Court defined sterilization “as an encroachment on basic liberty.” Justice William O. Douglas, writing for the majority, began to define a concept of reproductive rights, associating the right to procreate with “human rights” and with “the right to have offspring,” implying that the right to reproduce is a basic civil right.

What did Roe v. Wade actually say?

By p. 28↵the late 1960s, a number of social and political developments had stimulated support for legalizing abortion. More married women than ever before were in the labor force and needed a full range of legal resources to prevent unexpected pregnancies and childbearing. Feminists and grassroots advocates of legalization, such as the Clergy Consultation Services on Abortion that provided abortion referrals, were building a large movement associating their goal with other “rights” claims of the era. The population control and anti-welfare movements argued that legal abortion would reduce social ills. A few state legislatures had liberalized abortion statues. And a substantial number of women all over the country continued to seek out abortion services wherever they could find them.

In this context, Sarah Weddington and Linda Coffee, Texas lawyers interested in challenging that state’s anti-abortion law, filed suit in March 1970, on behalf of the named plaintiff, “Jane Roe,” a pseudonym for Norma McCorvey, an unwillingly pregnant woman, and “all women similarly situated” whose constitutional rights were violated by state laws criminalizing abortion. The fifth circuit federal court found in favor of McCorvey’s claim, writing that “the Texas abortion laws must be declared unconstitutional because they deprive single women and married couples of their right, secured by the Ninth Amendment, to choose whether to have children.” The case was appealed to the Supreme Court, which heard Roe v. Wade in December 1971 and issued its 7–2 opinion on January 22, 1973. Roe v. Wade invalidated all state laws limiting women’s access to abortions during the first trimester of pregnancy. State laws limiting such access during the second trimester were upheld only when the restrictions were for the purpose of protecting the health of the pregnant woman. In the majority were Harry Blackmun, who wrote the opinion, William J. Brennan, Chief Justice Warren Burger, William O. Douglas, Thurgood Marshall, Lewis Powell, and Potter Stewart. In dissent were William Rehnquist and Byron White.

The p. 29↵Court’s majority based legalization of abortion on four constitutional principles: (1) women have a constitutional right to reproductive privacy and proposed governmental regulation of that right must be subject to “strict scrutiny,” the most stringent level of judicial review used by US courts; (2) the government must remain neutral regarding a woman’s decision of whether to have an abortion; (3) in the period before “viability” (the point at which the fetus is sufficiently developed to live outside of the woman’s body), the government may restrict abortion only in the interests of protecting the woman’s health; and (4) after “viability,” the government may prohibit abortion, but laws must make exceptions that permit abortion when necessary to protect a woman’s health or life. Roe v. Wade established a “trimester” concept of pregnancy: during the first third of pregnancy, women have an unimpeded right to abortion; during the following two trimesters, a schedule of increasing restrictions apply, based on women’s health and fetal viability. Roe v. Wade associated the right to abortion with the privacy right named in Griswold v. Connecticut.

How did Congress respond to the Supreme Court’s decision?

In part, Congress’s response to Roe v. Wade was rooted in its ongoing attempts to blunt or overturn some of President Johnson’s Great Society legislation. After Roe, some members of Congress focused on prohibiting Medicaid funding for abortion as the most effective available vehicle for curtailing access. But in the first years after Roe, most federal courts stymied these efforts, finding that it would be unconstitutional for a state to refuse to pay for a poor woman’s elective abortion while agreeing to pay for other pregnancy-related medical treatment through its Medicaid program. The Bartlett Amendment of 1974, an early, unsuccessful congressional effort to restrict public funding of abortion, was condemned by the Congressional Research Service because, according to various p. 30↵court decisions, it would create illegitimate ­interference with the reproductive freedom that Roe guaranteed.

But soon, Medicaid funding for abortion did, in fact, become the chief battleground for reproductive politics at the federal level and also in the states. Liberal Republican senators such as Edward Brooke (R-MA), the only African American in the Senate, and Jacob Javits (R-NY) led the effort to allow low-income women, through Medicaid funding, the same access to abortion as other women. Representative Henry Hyde (R-IL) spoke for the anti-abortion side when he declared, “I certainly would like to prevent, if I could legally, anybody having an abortion, a rich woman, a middle-class woman, or a poor woman. Unfortunately, the only vehicle available is the HEW Medicaid bill.” In 1977, Congress, with a number of new anti-abortion legislators in office, passed the Hyde Amendment (actually a “rider” attached each year to appropriation bills), forbidding the use of federal Medicaid funds for abortion.

In Harris v. McRae (1980), the Supreme Court upheld the constitutionality of the Hyde Amendment, with the court’s majority agreeing that the federal government did not create a woman’s poverty and therefore was not responsible for alleviating it. Justice Potter Stewart, writing the majority opinion, asserted that government did not owe a woman, even one with a medical condition incompatible with pregnancy, the funds for an abortion, though the government could not otherwise stand in the way of this woman’s right to obtain a legal abortion. Stewart asserted, “although government may not place obstacles in the path of a woman’s exercise of her freedom of choice, it need not remove those not of its own creation: indigency falls in the latter category.”

The Hyde Amendment and Harris v. McRae, generally ­recognized as the first anti-abortion victories, had a major impact on the ability of some poor women to obtain abortions. In the late 1970s, the average cost of an abortion was $280, or $42 more than the average welfare check issued to support a whole family for a month.¹

How p. 31have subsequent judicial rulings and legislation altered the rights created by Roe v. Wade?

Over the past several decades, the Supreme Court has reviewed many laws passed by state legislatures aiming to narrow or even terminate women’s access to abortion. Most often, but not always, the Court has affirmed the right of states to enact a wide variety of laws governing abortion, for example, by establishing special regulations regarding minors’ access to abortion services; banning certain medically approved methods of performing abortions; and setting definitions regarding the beginning of life. As of 2012, the Court’s 1992 affirmation of Roe v. Wade still stands. Following are brief descriptions of some of the most important Supreme Court cases that have reshaped Roe.

In Bowen v. Kendrick (1988) the Court found that the Adolescent Family Life Act could grant federal funds to religious organizations that provide counseling services to adolescents without violating the First Amendment’s establishment clause. The Court decided here that even anti-abortion religious organizations could be trusted to offer education within the context of a public school without furthering “religious purposes.”

In Webster v. Reproductive Health Services (1989) the Court upheld the Missouri law stating that “human life begins at conception” and placed restrictions on access to abortion. It allowed the state to prohibit the use of state funds, facilities, and employees if it chose to value childbirth over abortion, and it allowed the state to test for fetal viability after twenty weeks’ gestation, although not to prohibit second trimester abortions.

The Court ruled 5–4 in Rust v. Sullivan (1991) that since the government had not discriminated on the basis of viewpoint but had “merely chosen to fund one activity [childbirth] to the exclusion of another [abortion], the ‘gag rule’ prohibiting physicians and other employees of abortion-providing facilities from counseling pregnant women about abortion or engaging p. 32↵in activities that encourage, promote, or advocate abortion as a method of family planning” did not violate the free-speech rights of doctors, their staffs, or their patients.

In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), the Court voted to “retain and reaffirm” women’s right to abortion. It struck down the state’s law requiring spousal notification prior to obtaining an abortion, ruling it prohibited by the Fourteenth Amendment’s due process and equal protection clauses—because it placed an “undue burden” on married women seeking an abortion. The justices upheld parental consent, informed consent, and a twenty-four-hour waiting period as constitutionally valid regulations. This decision replaced the “strict scrutiny standard” with the “undue burden” standard for assessing obstacles in the way of a woman obtaining an abortion.

This change was significant because Roe v. Wade had argued that any law that placed a restriction on a woman’s right to get an abortion before fetal viability would be subjected to “strict scrutiny,” the highest level of judicial review that can be applied to a statute. As noted, Roe had defined abortion as a privacy right and placed it in the category of freedoms guaranteed by the Constitution; therefore, any restriction governing access had to be narrowly tailored and necessary to serve a compelling state interest. In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court ruled that laws that infringed on a woman’s right to an abortion before fetal viability should now be tested by the less rigorous and more subjective “undue burden” standard, one that determines whether a restriction created a “substantial obstacle” in the way of a woman seeking an abortion. The new standard allowed state legislatures to enact mandatory waiting periods, “informed consent,” parental consent laws, and other restrictions.

In Stenberg v. Carhart, (2000) the Court ruled that a Nebraska statute banning “partial birth” abortion was unconstitutional because the statute lacked the necessary exception for preserving the health of the woman; and because the definition of p. 33↵the targeted procedure was so broad as to prohibit abortions in the second trimester, thereby constituting an undue burden on women.

Gonzales v. Carhart (2007) upheld the Partial-Birth Abortion Ban Act of 2003, finding that the congressional ban did not impose an undue burden on the due process right of women to obtain an abortion. The New England Journal of Medicine identified the case as a landmark: “This is the first time the Court has ever held that physicians can be prohibited from using a medical procedure deemed necessary by the physician to benefit the patient’s health.”