Business, Legal & Accounting Glossary
n. the termination of pregnancy by various means, including medical surgery, before the fetus is able to sustain independent life. Until 1973 abortion was considered a crime (by the mother and the doctor) unless performed by physicians to protect the life of the mother, a phrase often broadly interpreted. Untrained persons performed thousands of abortions each year in the U.S. using hasty, unsanitary and dangerous means, resulting in maiming, permanent damage of organs, and death of many women. The Supreme Court ruled in the case of Roe v. Wade (1973) that a woman had the right to choose abortion to end a pregnancy through the first trimester (three months) of gestation. In the latter stages of pregnancy, danger to the life of the mother could still justify a legal abortion. Political struggles followed over legalized abortions. Some state legislatures passed limitations such as requiring teenage girls to obtain their parents’ consent in order to get an abortion. Despite the appointment of anti-abortion justices by Presidents Reagan and Bush, the Supreme Court has not over-turned the basic Wade case rule.
The spontaneous or artificially induced expulsion of an embryo or fetus. As used in a legal context, usually refers to induced abortion.
English common law generally allowed abortion before the “quickening” of the fetus (i.e., the first recognizable movement of the fetus in the uterus), which occurred between the sixteenth and eighteenth weeks of pregnancy. After quickening, however, common law was less clear as to whether abortion was considered a crime. In the United States, state legislatures did not pass abortion statutes until the nineteenth century. After 1880, abortion was criminalized by statute in every state of the union, owing in large measure to strong anti-abortion positions taken by the American Medical Association. Despite the illegality, many thousands of women every year sought abortions. Under a heavy cloak of shame and secrecy, women often had abortions performed in unsafe conditions, and many died or suffered complications from the procedures.
The abortion laws developed in the late nineteenth century existed largely unchanged until the 1960s and 1970s when a number of different circumstances combined to bring about a movement for their reform. Women’s rights groups, doctors, and lawyers began an organized abortion reform movement to press for changes, in part because many of them had witnessed the sometimes deadly complications resulting from illegal abortions. Women’s organizations also began to see abortion reform as a crucial step toward the goal of equality between the sexes. They argued that women must be able to control their pregnancies in order to secure an equal status in American life. In addition, new concerns regarding explosive population growth and its effect on the environment increased public awareness of the need for birth control. At the same time, other countries developed far more permissive laws regarding abortion. In Japan and Eastern Europe, abortion was available on-demand, and in much of Western Europe, abortion was permitted to protect the mother’s health.
Public awareness of the abortion issue also increased through two incidents in the early 1960s that caused a greater number of children to be born with physical defects. In 1961, the drug thalidomide, used to treat nausea during pregnancy, was found to cause serious birth defects. And a 1962-65 German measles epidemic caused an estimated fifteen thousand children to be born with defects. Pregnant women who were affected by these incidents could not seek abortions because of the strict laws then in existence.
Reacting to these and other developments, and inspired by the successes of the civil rights movement of the 1950s and 1960s, women’s rights organizations—including the National Organization for Women (NOW), formed in 1966—sought to reform abortion laws through legislation and lawsuits. They hoped to educate a largely male-dominated legal and judicial profession about this important issue for women. Their work, supported by such groups as the American Civil Liberties Union (ACLU), quickly began to have an effect. Between 1967 and 1970, twelve states adopted abortion reform legislation. However, the abortion activist groups began to see the abortion issue as a question of social justice and began to press for more than reform. Under the rallying cry of reproductive freedom, they began to demand an outright repeal of existing state laws and unobstructed access for women to abortion.
The increase in abortion-related cases before the courts eventually resulted in the need for clarification of the law by the Supreme Court. After considering many abortion-related appeals and petitions, on May 31, 1971, the Court accepted two cases, Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), and Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973), for hearing.
Although the two cases before the Court appeared by their titles to involve the fates of two individuals, Roe and Doe, in reality, both suits were brought by many people representing many different interests. Roe v. Wade was argued on behalf of all women of the state of Texas—in legal terminology, it was a class-action suit. Thirty-six abortion reform groups filed briefs, or reports, with the court on Roe’s behalf. These included women’s, medical, university, public health, legal, welfare, church, population control, and other groups. The anti-abortion side of the case included representatives from seven different anti-abortion groups and the attorneys general of five states.
Roe involved a person using the pseudonym Jane Roe—actually Norma McCorvey, who revealed her identity in 1984. Roe, an unmarried, pregnant woman from Texas, wanted to have an abortion, but an existing abortion statute prevented her from doing so. The Texas statute, originally passed in 1857, outlawed abortion except to save the mother’s life. Roe filed a lawsuit in federal district court on behalf of herself and all other pregnant women. She sought to have the abortion statute declared unconstitutional as an invasion of her right to privacy as guaranteed by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. She also sought to have an injunction, or court order, issued against the statute’s enforcement so that she might go forward with the abortion. The abortion reform movement attached two other cases to Roe’s in an attempt to represent a wider range of the interests involved in the issue. A physician, James Hallford, who was being prosecuted under the statute for two abortions he had performed, also filed suit against the Texas law, as did a childless couple, the Does.
The three-judge district court combined Roe’s case with the cases of Hallford and the Does, but later dismissed the suit brought by the Does on the grounds that neither had violated the law and the woman was not pregnant. The district court agreed with Roe that the law was unconstitutionally vague and violated her right to privacy under the Ninth Amendment—which allows for the existence of rights, like that of privacy, not explicitly named in the Constitution’s Bill of Rights—and the Fourteenth Amendment. It refused, however, to grant the injunction allowing her to go ahead with the abortion. Roe then appealed the denial of the injunction to the U.S. Supreme Court.
Doe v. Bolton involved a 1968 Georgia statute that allowed abortion if necessary to save the mother’s life, in the case of pregnancy resulting from rape or incest, or if the baby was likely to be born with serious birth defects (Ga. Crim. Code § 26-1202 a,b). However, the statute also created procedural requirements that effectively would have allowed few abortions. Those requirements included hospital accreditation, committee approval, two-doctor agreement, and state residency. The case concerned Mary Doe, who had sought an abortion at Grady Memorial Hospital, in Atlanta. She claimed that she had been advised that pregnancy would endanger her health, but the hospital’s Abortion Rights Committee denied her the abortion. She sought a declaratory judgment holding that the Georgia law unconstitutionally violated her right to privacy as well as her Fourteenth Amendment guarantees of due process and equal protection. She also sought an injunction against the law’s enforcement.
Roe and Doe were filed in March and April of 1970, and the women’s pregnancies would not have lasted through December 1970. The Court heard the cases in December 1971 and October 1972, and they were not resolved until January 1973, when the Court announced its decisions.
In Roe, the Court, on a 7-2 vote, found the Texas abortion statute unconstitutional. In its opinion, written by Justice Harry A. Blackmun, the Court held that the law violated a right to privacy guaranteed by the Due Process Clause of the Fourteenth Amendment. However, the Court further held that such a right is a “qualified” one and subject to regulation by the state. The state has “legitimate interests in protecting both the pregnant woman’s health and the potentiality of human life” (i.e., the life of the fetus). To specify when the state’s interests emerge, the Court divided pregnancy into twelve-week trimesters. In the first trimester, the state cannot regulate abortion or prevent a woman’s access to it. It can only require that abortions be performed by a licensed physician and under medically safe conditions. During the second trimester, the state can regulate abortion procedures as long as the regulations are reasonably related to the promotion of the mother’s health. In the third trimester, the state has a dominant interest in protecting the “potentiality” of the fetus’s life. A state may prohibit abortions during this time except in cases where they are essential to preserving the life or health of the mother. The Court also cited judicial precedent in holding that the fetus is not a “person” as defined by the Fourteenth Amendment.
In Doe, the Court found the Georgia statute to be unconstitutional as well, holding that it infringed on privacy and personal liberty by permitting abortion only in restricted cases. The Court ruled further that the statute’s four procedural requirements—hospital accreditation, hospital committee approval, two-doctor agreement, and state residency—violated the Constitution. The state could not, for example, require that abortions be performed only at certain hospitals because it had not shown that such restrictions advanced its interest in promoting the health of the pregnant woman. Such a requirement interfered with a woman’s right to have an abortion in the first trimester of pregnancy, which the Court in Roe had declared was outside the scope of state regulation.
After the Supreme Court decisions in Roe v. Wade and Doe v. Bolton, states began to liberalize their abortion laws. However, abortion quickly became a divisive political issue for Americans. Grassroots opposition to abortion—supported by such influential institutions as the Catholic Church— was strong from the start. By the early 1980s, the anti-abortion movement had become a powerful political force. President Ronald Reagan, who came to office in 1981 and served through 1989, strongly opposed abortion and used his administration to try to change abortion rulings. He appointed a surgeon general, Dr C. Everett Koop, who opposed abortion, and he made it a top priority of his Justice Department to effect a reversal of Roe. Reagan even published a book on the subject in 1984, Abortion and the Conscience of a Nation, which contains many of the essential positions of the anti-abortion movement. Reagan argued that the fetus has rights equal to those of people who are already born. He also cited figures indicating that 15 million abortions had been performed since 1973, and he stated his belief that the fetus experienced great pain as a result of the abortion procedure. He quoted a statement by Mother Teresa, the famed nun who helped the poor of Calcutta: “[T]he greatest misery of our time is the generalized abortion of children.” While abortion rights, or pro-choice, advocates argued that there were public health advantages of the new abortion laws, opponents of abortion, such as Reagan, referred to abortion as a “silent holocaust.”
The anti-abortion, or pro-life movement has challenged abortion in a number of different ways. It has sponsored constitutional amendments that would effectively reverse Roe, as well as legislation that would limit and regulate access to abortion, including government financing of abortion procedures. Some anti-abortion groups have practised civil disobedience, attempting to disrupt and block abortion clinic activities. The most extreme opponents have resorted to violence and even murder in an attempt to eliminate abortion.
All these methods have resulted in a great deal of litigation and added to the complexity of the abortion issue. Many of the subsequent cases have come before the Supreme Court. Observers have often expected the Court to overturn its Roe decision, particularly after the Reagan administration appointed three justices to the Court. However, while the Court has allowed increasingly strict state regulation of abortion since Roe, it has stuck to the essential finding in Roe, that women have a limited right to terminate their pregnancies. This right is incorporated in a right of privacy guaranteed by the Fourteenth Amendment.
Although amending the Constitution is the most direct way to reverse Roe v. Wade, neither Congress nor the states have passed a constitutional amendment related to the issue of abortion. The anti-abortion forces have found it extremely difficult to achieve a public consensus on this divisive issue. However, at least nineteen state legislatures have passed applications to convene a constitutional convention to propose an amendment that would outlaw abortions. Congressional representatives have also worked to bring such an amendment about. The many dozens of amendments that have been proposed can be grouped into two main categories: states’ rights, and the right to life. The former would restore to the states the same control over abortion that they exercised prior to Roe. The latter would designate the fetus as a person, entitled to all the privileges and rights guaranteed under the Fourteenth Amendment.
One unsuccessful attempt at changing the Constitution was the Hatch amendment of 1983, sponsored by Senator Orrin G. Hatch (R-Utah), which stated, “A right to abortion is not secured by this Constitution.” It did not receive the two-thirds majority necessary in Congress to be submitted to the states for ratification.
Congress has also sponsored legislation that would effectively reverse Roe. For example, the Human Life Bill (S. 158), introduced by Senator Jesse Helms (R-N.C.) in 1981, would have established that a fetus is a person, entitled to the full rights and privileges guaranteed by the Fourteenth Amendment. The bill did not pass.
In 1976, Representative Henry J. Hyde (R-Ill.) sponsored an amendment to the federal budget appropriations bill for the Department of Health and Human Services (HHS). His amendment denied Medicaid funding for abortion unless the woman’s life is in danger or she is pregnant as a result of rape or incest, but only if the woman reports the incident at the time of its occurrence. Despite opposition from pro-abortion groups, Hyde attached this amendment every year to the same appropriations bill. The Supreme Court has upheld the constitutionality of the Hyde amendment (Harris v. McRae, 448 U.S. 297, 100 S. Ct. 2671, 65 L. Ed. 2d 784 ; McGowan v. Maryland, 366 U.S. 420, 81 S. Ct. 1101, 6 L. Ed. 2d 393 ). Evidence suggests that these federal actions have caused fewer women to have abortions.
In the late 1980s, with its composition having been changed by three Reagan appointees (Justices Sandra Day O’Connor, Antonin Scalia, and Anthony M. Kennedy), the Court issued a ruling related to federal financing of abortion that many perceived as a dramatic shift against abortion rights. In Webster v. Reproductive Health Services, 492 U.S. 490, 109 S. Ct. 3040, 106 L. Ed. 2d 410 (1989), the Supreme Court upheld a Missouri law prohibiting the use of public funds and buildings for abortion procedures and counselling, including a provision that required fetal testing for viability for abortions performed after the twentieth week of pregnancy (Mo. Rev. Stat. §§ 1.205.1, 1.205.2, 188.205, 188.210, 188.215). Scalia, appointed in 1986, argued in his concurring opinion that Roe v. Wade should be overruled and that the Court had missed an opportunity in not doing so in this case.
The Webster decision resulted in a flood of new state legislation related to abortion. Many states sought to reactivate old abortion laws that had never been taken off the books subsequent to Roe. Louisiana, for example, sought to reinstate an 1855 law making all abortions illegal and imposing a ten-year sentence on doctors and women violating it. However, in January 1990, a federal district court ruled that the 1855 law could not be reinstated and that subsequent laws allowing abortions in certain circumstances took precedence (Weeks v. Connick, 733 F. Supp. 1036 [E.D. La. 1990]). By mid-1991, Pennsylvania, Guam, Utah, and Louisiana had all enacted laws banning abortions except in limited circumstances. Pennsylvania became the first to approve new abortion restrictions when it amended its Abortion Control Act (Pa. Cons. Stat. Ann. § 3201) to create strict new regulations on abortion procedures (see the discussion of Planned Parenthood of Southeastern Pennsylvania v. Casey under “Other Major Abortion Regulations,” later in this entry). In other states such as South and North Dakota, legislation that would have sharply restricted abortion was only narrowly defeated. However, some states, such as Connecticut and Maryland, reacted to the Webster decision by passing legislation protecting women’s rights to abortion.
Before the Court ruled on Pennsylvania’s Abortion Control Act, it decided a major case relating to federal funding and regulation of family planning clinics. In Rust v. Sullivan, 500 U.S. 173, 111 S. Ct. 1759, 114 L. Ed. 2d 233 (1991), the Court upheld a series of regulations issued in 1988 by the Reagan administration’s Justice Department affecting family planning clinics that receive funds through Title X of the Public Health Service Act of 1970, 42 U.S.C.A. §§ 300-300a-6. The regulations prohibited clinic personnel from providing any information about abortion, including counselling or referral. The regulations also required that the only permissible response to a request for an abortion or referral was to state that the agency “does not consider abortion an appropriate method of planning and therefore does not counsel or refer for abortion.” This regulation became known to its detractors as the gag rule. The regulations also prohibited title X-funded family planning clinics from lobbying for legislation that advocated or increased access to abortion, and they required that such clinics be “physically and financially separate” from abortion activities. Although a family planning agency could still conduct abortion-related activities, it could not use federal money to fund such activities. Chief Justice William H. Rehnquist, who wrote the Court’s opinion, disagreed with the contentions of the plaintiffs—several family planning agencies—that the federal regulations violated a woman’s due process right to choose whether to terminate her pregnancy. He pointed out that the Due Process Clause generally confers no affirmative right to government aid. The government has no constitutional duty to subsidize abortion and may validly choose to fund “childbirth over abortion.” Rehnquist noted that a woman’s right to seek medical advice outside a title X-funded agency remained “unfettered.”
Justice Blackmun, the author of the Roe majority opinion, dissented, arguing that the regulations because they restricted speech as a condition for accepting public funds, violated the First Amendment’s free speech provision. The regulations, he wrote, suppressed “truthful information regarding constitutionally protected conduct of vital importance to the listener.” Blackmun saw the regulations as improper government interference in a woman’s decision to continue or end a pregnancy, and he claimed that they rendered the landmark Roe ruling “technically” intact but of little substance.
On January 22, 1993, shortly after taking office, President Bill Clinton signed a memorandum that revoked the gag rule, maintaining that it “endangers women’s lives by preventing them from receiving complete and accurate medical information.” On February 5, 1993, the secretary of HHS complied with the president’s decision and declared that the department would return to title X regulations that were in effect before February 1988. Title X-funded clinics would again be able to provide nondirective counselling on all options to a patient and to refer her for abortion services if she chose. However, such clinics would still be prohibited from engaging in pro-choice lobbying or litigation.
Among the first abortion regulations to be enacted after Roe v. Wade were requirements for the informed consent of the woman seeking an abortion. Although informed consent varies according to different laws, it can generally be given only after a woman receives certain information from a doctor, medical professional, or counsellor. This information can include the nature and risks of the abortion procedure, the risk of carrying the pregnancy to term, the alternatives to abortion, the probable age of the fetus, and specific government aid available for the care of a child. Related to this issue are other types of consent—including parental and spousal consent—that states have sought to require before an abortion can be performed.
In 1976, the Court reviewed a Missouri statute requiring that the following provisions be met for an abortion to be performed: that a woman in the first twelve weeks of her pregnancy gives written consent; that a wife obtains her husband’s consent; and that a minor obtain her parents’ consent, unless a medical necessity exists (Mo. Ann. Stat. § 188.010 et seq.). The statute also required that physicians and clinics performing abortions keep careful records of their procedures and that criminal and civil liability be imposed upon a physician who failed to observe standards of professional care in performing abortions. Planned Parenthood, a family planning organization, initiated a lawsuit to declare the law unconstitutional. The Supreme Court, in Planned Parenthood v. Danforth, 428 U.S. 52, 96 S. Ct. 2831, 49 L. Ed. 2d 788 (1976), upheld the requirement that the woman gives written consent in the first trimester, as well as the requirement that records of abortion procedures be kept. However, the Court ruled that a woman need not inform her husband of an abortion performed in the first trimester, because the state may not interfere in the woman’s private decision concerning her pregnancy during that period. For the same reason, the Court struck down the law requiring a minor to obtain parental consent in the first trimester.
The Court clarified its position on parental consent in later rulings. In Bellotti v. Baird, 443 U.S. 622, 99 S. Ct. 3035, 61 L. Ed. 2d 797 (1979), it struck down a state law that required the consent of both parents or judicial approval—commonly called judicial bypass— before an unmarried minor could obtain an abortion. The Court found the law unconstitutional because it gave third parties—the child’s parents or the court—absolute veto power over the minor’s ability to choose abortion, regardless of her best interests, maturity, or ability to make informed decisions. In H.L. v. Matheson, 450 U.S. 398, 101 S. Ct. 1164, 67 L. Ed. 2d 388 (1981), the Court upheld a Utah statute requiring that a physician notify the parents of a minor before performing an abortion on her (Utah Code Ann. § 76-7-304). Since the law required only notification rather than consent, the Court reasoned that it did not give any party veto power over the minor’s decision. In Hodgson v. Minnesota, 497 U.S. 417, 110 S. Ct. 2926, 11 L. Ed. 2d 344 (1990), the Court upheld a parental notification statute because the statute’s provision for judicial bypass took into account the best interests of the minor, her maturity, and her ability to make an informed decision.
In 1982, Pennsylvania passed the Abortion Control Act, which required that the woman give “voluntary and informed” consent after hearing a number of statements, including declarations of the following: the “fact that there may be detrimental physical and psychological effects” to the abortion; the particular medical risks associated with the abortion method to be employed; the probable gestational age of the fetus; the “fact that medical assistance benefits may be available” for prenatal care and childbirth; and the “fact that the father is liable to assist” in child support. The law also required a physician to report the woman’s age, race, marital status, and the number of previous pregnancies; the probable gestational age of the fetus; the method of payment for the abortion; and the basis of a determination that “a child is not viable.”
When the Pennsylvania law came before the Court in the 1986 case Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 106 S. Ct. 2169, 90 L. Ed. 2d 779, the Reagan administration’s Justice Department specifically asked the Court to overturn Roe. In its brief, the department argued that the Court should “abandon” Roe because its textual and historical basis was “so far flawed” as to be a source of instability in the law. Instead, the brief urged, the Court should leave the state legislatures free to permit or prohibit abortion as they wish. However, by a narrow (5-4) vote the Court found all the provisions of Pennsylvania’s Abortion Control Act to be unconstitutional, thereby reaffirming its previous decisions upholding a woman’s constitutional right to abortion. “The states,” wrote Justice Blackmun in the Court’s opinion, “are not free, under the guise of protecting maternal health or potential life, to intimidate women into continuing pregnancies.” Pennsylvania had defended itself by claiming that its procedures gave the pregnant woman information that would better inform her decision regarding abortion. Blackmun, although he agreed in principle with the idea of informed consent, found that the Pennsylvania procedures were designed not so much to inform as to encourage a woman to withhold her consent to an abortion.
The narrow margin of the Court’s decision encouraged the anti-abortion movement. By the time the Court reached its next major abortion decision, in 1992—Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674—many expected it to finally reverse Roe. Again, it did not. Casey, the most important abortion decision since Roe, concerned amendments to the same Pennsylvania Abortion Control Act of 1982. The amendments prohibited abortions after twenty-four weeks except to save the woman’s life or to prevent substantial and irreversible impairment of her bodily functions; required a woman to wait twenty-four hours after giving her informed consent before receiving an abortion; allowed only a physician to give informed-consent information; required a woman to notify her spouse, and mandated that minors obtain informed consent from at least one parent or a court before receiving an abortion. The plaintiffs in the case, five family planning clinics and a physician provider of abortion services, asked the Court to declare the statutes invalid.
In a close (5-4) decision, the Court again supported the basic provisions of Roe and upheld a woman’s right to decide to obtain an abortion. The Court did, however, uphold all the Pennsylvania statutes except for the spousal notification provision, arguing that they did not present an “undue burden” to the woman’s reproductive rights. Justices O’Connor, Kennedy, and David H. Souter wrote the majority opinion, and Justices John Paul Stevens and Blackmun wrote concurring opinions. Chief Justice Rehnquist and Justices Scalia, Byron R. White, and Clarence Thomas all dissented.
Noting that the case marked the fifth time the Justice Department under the Reagan and Bush administrations had filed a report with the Court making known its desire to overturn Roe, the Court’s opinion defended the reasoning of the Roe decision. The Court characterized the Roe ruling as having three major provisions:
First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the state. 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.
The Court in Casey, as in Roe, found the constitutional basis of a woman’s right to terminate her pregnancy in the Due Process Clause of the Fourteenth Amendment. As the Court stated, “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” The Court also invoked the legal doctrine of stare decisis, the policy of a court to follow previously decided cases rather than overrule them.
However, the Court emphasized, more than it had in Roe, “the State’s ‘important and legitimate interest in potential life’ [quoting Roe].” The justices also sought to better define the “undue burden” standard, originally developed by Justice O’Connor, that the Court had used to assess the validity of any possible regulations of a woman’s reproductive rights. The Court more precisely defined an undue burden as one whose “purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.”
The dissenting justices in the case restated their opinion that Roe was decided wrongly because no fundamental right for a woman to choose to terminate her pregnancy was written into the U.S. Constitution and because U.S. society, in the past, permitted laws that prohibited abortion. They also gave different arguments for upholding the Pennsylvania statute’s restrictions. Such provisions had only to show a “rational basis,” and using that test, they would have upheld all the challenged portions of the Pennsylvania law. Chief Justice Rehnquist and Justice Scalia both argued that the Court had misused the notion of stare decisis in the case, because the Court did not uphold all aspects of Roe. Scalia also maintained that although the liberty to terminate a pregnancy may be of great importance to many women, it is not “a liberty protected by the Constitution.”
The Court’s decision in Casey was used to strike down other state laws that sharply restricted women’s access to abortion. Citing the Casey decision, in Sojourner v. Edwards, 974 F.2d 27, the U.S. Court of Appeals for the Fifth Circuit in September 1992 struck down a Louisiana law that would have imposed stiff sentences on doctors performing abortions for reasons other than saving the life of the mother or in cases of rape or incest if the victim reported the crime (La. Rev. Stat. Ann. 14:87). The appeals court found the statute unconstitutional because it imposed an undue burden on women seeking an abortion before fetal viability. The Supreme Court later upheld this ruling without comment (Sojourner, 507 U.S. 972, 113 S. Ct. 1414, 122 L. Ed. 2d 785 ).
As a result of the Court’s decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, the battle over abortion moved beyond the question of whether Roe v. Wade would be overturned, to focus on what conditions truly constitute an American woman’s right to safe, legal abortion. After a number of incidents of violence at abortion clinics, the abortion rights movement has focused on lobbying for legislation and winning court cases guaranteeing access to abortion clinics. The anti-abortion movement, on the other hand, has continued to vigorously oppose abortion but has become increasingly split between militant and moderate factions. Behind the split are the increasingly violent actions of militant anti-abortion protesters. Between 1993 and 1994, five abortion providers were killed by anti-abortion militants. Although such killings have undermined public support for the anti-abortion movement, they have also damaged the morale of those who staff family planning clinics; some clinics have even shut down. As a result, family planning services, including abortion, remain difficult to obtain for women in many parts of the country, particularly in rural areas.
The Supreme Court has decided a number of different cases surrounding the issue of anti-abortion protests, many of which have made it more difficult for anti-abortion groups to disrupt the operations of family planning clinics. In Madsen v. Women’s Health Center, 512 U.S. 753, 114 S. Ct. 2516, 129 L. Ed. 2d 593 (1994), the Court upheld a regulation barring abortion protesters within thirty-six feet of a Melbourne, Florida, clinic. In another 1994 decision, National Organization for Women v. Scheidler, 510 U.S. 249, 114 S. Ct. 798, 127 L. Ed. 2d 99, the Court upheld the use of the Racketeer Influenced and Corrupt Organizations (RICO) chapter of the Organized Crime Control Act of 1970 (18 U.S.C.A. §§ 1961-1968) against militant anti-abortion groups. RICO, which was originally designed to combat Mafia crime, gives the government a potent tool to convict those involved in violence against abortion providers and their clinics.
In May 1994, President Clinton signed into law another tool to be used against anti-abortion militants, the Freedom of Access to Clinic Entrances Act (FACE), which allows for federal criminal prosecution of anyone who, “by force or threat of force or by physical obstruction, intentionally injures, intimidates, or interferes … with any person … obtaining or providing reproductive health services” (18 U.S.C.A. § 248). The law also makes it a federal crime to intentionally damage or destroy the property of any reproductive health facility, and it permits persons harmed by those engaging in prohibited conduct to bring private suits against the wrongdoers. The law imposes stiff penalties as well for those found guilty of violating its provisions.
Ultimately, medical technology may have as much to do with the outcome of the abortion debate as politics. New drugs have been developed that induce abortion without a surgical procedure. The most well known of these is RU-486, developed by the French pharmaceutical company Roussel Uclaf. The drug blocks the action of the female hormone progesterone, preventing the implantation of a fertilized egg in the wall of the uterus. It is used with a second drug in pill form, prostaglandin, taken forty-eight hours later, which causes uterine contractions. The uterine lining is then sloughed off, along with any fertilized eggs. Widely used in Europe, RU-486 is said to be 95 per cent effective. The drug is also being tested as a morning-after pill and as a possible treatment for breast cancer, endometriosis, and brain tumours. The Food and Drug Administration (FDA), under the Reagan and Bush administrations, banned the importation of RU-486 into the United States. However, in April 1993, the Clinton administration pressured Roussel Uclaf to license the drug for sale to the U.S. Population Council, a New York-based nonprofit organization, which said it would conduct clinical tests in the United States. Seeking to avoid the ire of anti-abortion groups, Roussel Uclaf was planning to set up a nonprofit foundation that would manufacture and distribute RU-486.
Even before the Supreme Court’s landmark 1973 abortion ruling in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147, pro-life groups had begun to picket and protest at family planning clinics that perform abortions. Such groups had formed in response to an abortion reform movement that by 1970 had succeeded in liberalizing abortion laws in many states. From the start, most anti-abortion demonstrators modelled their protests on those of the civil rights movement of the 1950s and 1960s. The anti-abortion movement was led by such people as Joan Andrews, a pacifist and human rights advocate who became a hero for the movement after she spent two-and-a-half years in a Florida jail for attempting to disengage a suction machine used in abortions. The movement advocated the nonviolent approach to civil disobedience pioneered by Mohandas K. Gandhi and Martin Luther King, Jr. By 1975, two years after Roe, Catholic groups had begun to conduct sit-ins at family planning clinics where abortions were performed. With time, evangelical Protestant groups joined the movement, and in the mid-1990s, they accounted for a majority of anti-abortion activists.
Pro-life groups have come to call their activities direct actions or rescues, believing that they are saving unborn children from murder, and their tactics have grown increasingly complex. Typical stratagems include bringing in dozens or hundreds of volunteers and blocking clinic entrances with their bodies, often chaining themselves to doors; shouting slogans, sometimes with bullhorns; attempting to intercept women leaving or entering the building and plying them with anti-abortion literature; displaying graphic pictures of fetuses; and trailing clinic employees to and from work while shouting such things as “Baby killer!” Besides demonstrating, anti-abortion groups have sponsored “pregnancy crisis centres,” where they counsel pregnant women, with the intention of persuading them to carry their pregnancies to term. By the mid-1980s, activists had created national organizations and networks that promoted civil disobedience to stop the practice of abortion. The most well known of these is Operation Rescue, which was started in the 1980s by Randall Terry, an evangelical Christian.
The aggressive strategies of the anti-abortion movement have prompted legal responses from women’s and abortion rights organizations, resulting in a number of cases that have reached the Supreme Court. In several different rulings, the Court has attempted to clarify what is and is not allowed in anti-abortion demonstrations. In making these decisions, the Court has attempted to balance the rights of the demonstrators—particularly their right to free speech—with the rights of women seeking to use family planning clinic services. In 1988, for example, in Frisby v. Schultz, 487 U.S. 474, 108 S. Ct. 2495, 101 L. Ed. 2d 420, the Court upheld a Brookfield, Wisconsin, city ordinance prohibiting pickets “focused on, and taking place in front of, a particular residence.” The ordinance had been created in response to anti-abortion demonstrations targeting the private home of an obstetrician who performed abortions, a tactic assumed by the protesters after picketing at the physician’s clinic had not stopped its operation. Justice Sandra Day O’Connor wrote in the Court’s opinion, “There is simply no right to force speech into the home of an unwilling listener.”
A later Supreme Court decision gave abortion clinics further protection: it supported the constitutionality of a court injunction prohibiting protesters from going within thirty-six feet of a clinic that had been a regular target of protests. In July 1994, in Madsen v. Women’s Health Center, ___U.S.___, 114 S. Ct. 2516, 129 L. Ed. 2d 593, the High Court ruled 6-3 to let stand the thirty-six-foot exclusion zone for the Melbourne, Florida, abortion clinic. However, the Court did strike down other provisions of the injunction, such as a three-hundred-foot exclusion zone and restrictions on carrying banners and pictures. The ruling was considered a major defeat for the anti-abortion movement. Justice Antonin Scalia wrote a sharp dissent in which he claimed that the Supreme Court’s position on abortion had claimed “its latest, greatest and most surprising victim: the First Amendment.”
Violence has been a part of the heated debate surrounding abortion ever since the 1973 Roe v. Wade decision that guaranteed a woman’s limited right to an abortion. Bombings, arson, and even murder have been committed by anti-abortion activists in the name of their cause. The National Abortion Federation counted more than three thousand violent or threatening incidents against abortion clinics between 1976 and 1994. In the 1990s, the extremist wing of the anti-abortion movement turned even more violent, including murder as part of its tactics. Some extremists now view killing health care professionals who perform abortions as justifiable homicide.
Between March 1993 and the end of 1994, five staff workers at abortion clinics were murdered by anti-abortion zealots. Dr David Gunn was fatally shot on March 10, 1993, outside an abortion clinic in Pensacola, Florida, by Michael Griffin. In August 1994, Dr John Bayard Britton, age sixty-nine, who had replaced Gunn as a circuit-riding doctor in northern Florida, and his escort, James Barrett, age seventy-four, were shot repeatedly in the face with a shotgun as their car pulled into the parking lot of the Ladies Clinic of Pensacola. Minutes later, police arrested Paul Hill, an anti-abortion extremist. President Bill Clinton called Britton’s and Barrett’s killings a case of domestic terrorism. In December 1994, in perhaps the most gruesome incident of all, John Salvi killed two people and wounded five more when he opened fire in two Boston-area family planning clinics.
According to the Alan Guttmacher Institute, in 1988—well before the 1993-94 wave of violence—17 per cent of counties in the United States had abortion providers. The federal government cannot guarantee protection for clinics; whereas there are some fifteen hundred abortion clinics nationwide, in 1995 there were only 2,100 federal marshals.
The government and abortion rights groups have responded to the increased violence in two ways: reviewing existing laws to find those that can be used to investigate and prosecute violent groups and individuals, and creating new laws that specifically address access to abortion clinics. In the late 1980s, the National Organization for Women (NOW) filed a lawsuit against long-time pro-life activist Joseph Scheidler and his Pro-Life Action Network (PLAN). Initially, NOW attempted to use the Sherman Anti-Trust Act of 1890 (15 U.S.C.A. § 1 et seq.) against PLAN, but without success. At the prompting of Chicago lawyer Fay Clayton, NOW turned to a different law, the Racketeer Influenced and Corrupt Organizations (RICO) chapter of the Organized Crime Control Act of 1970 (18 U.S.C.A. §§ 1961-1968), and broadened its attack to include Randall Terry, founder of Operation Rescue. RICO was originally drafted as a potent means to convict all members of a criminal enterprise—including those who had routinely escaped police dragnets, the Mafia bosses. The law imposes harsh penalties on those convicted under it: up to twenty years in jail for each criminal count, and triple damages in civil judgments. In early 1994, the Supreme Court, in National Organization for Women v. Scheidler, 510 U.S. 249, 114 S. Ct. 798, 127 L. Ed. 2d 99, upheld the use of RICO against anti-abortion groups, many of which could now be attacked as criminal enterprises. Chief Justice William H. Rehnquist, writing the Court’s opinion, reasoned that to be designated a criminal enterprise under RICO, an organization need not be devoted to economic gain. Justice David H. Souter wrote a concurring opinion in which he warned that RICO could conflict with First Amendment rights regarding speech. “I think it prudent to notice,” he wrote, “that RICO actions could deter protected advocacy and caution courts applying RICO to bear in mind the First Amendment interests that could be at stake.”
Women’s rights groups were less successful in Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 113 S. Ct. 753, 122 L. Ed. 2d 34 (1993). In this case, the Supreme Court ruled that a nineteenth-century federal civil rights law (42 U.S.C.A. § 1985) aimed at protecting African Americans from the Ku Klux Klan could not be used to prevent anti-abortion protesters from blockading abortion clinics. Originally enacted as part of the Ku Klux Klan Act of 1871, a law that had first been used against mob violence and vigilantism, the relevant statute had in the 1980s been applied by courts to actions of anti-abortion groups, most notably Operation Rescue. A lower-court ruling, for example, found that Operation Rescue had violated trespassing and public nuisance laws and had conspired to violate the right to interstate travel of women seeking abortions at clinics. The court banned Operation Rescue from trespassing on or obstructing access to abortion clinics (NOW v. Operation Rescue, 726 F. Supp. 1483 [E.D. Va. 1989]). This decision was reversed by the Supreme Court in Bray, in a 6-3 ruling, when it held that women did not qualify as a class under discrimination by the provisions of the Ku Klux Klan Act.
After Bray, congressional supporters of abortion rights, Representative Charles E. Schumer (D-N.Y.) and Senator Edward M. Kennedy (D-Mass.), introduced the Freedom of Access to Clinic Entrances Act (FACE), which would give federal courts the authority to issue restraining orders against protesters blockading abortion clinics (18 U.S.C.A. § 248). It was signed into law by President Clinton on May 26, 1994. The law allows for federal criminal prosecution of anyone who, “by force or threat of force or by physical obstruction, intentionally injures, intimidates, or interferes … with any person … obtaining or providing reproductive health services.” The law also makes it a federal crime to intentionally damage or destroy the property of any reproductive health facility, and it permits persons harmed by those engaging in prohibited conduct to bring private suits against the wrongdoers. The penalties for violation of the act include imprisonment for up to one year and a fine of $10,000 for a first offence; for each subsequent offence, penalties can be up to three years’ imprisonment and $25,000. FACE is patterned after existing civil rights laws, including 18 U.S.C.A. § 245(b), which prohibits force or threat of force to willfully injure, intimidate, or interfere with any person who is voting, engaging in activities related to voting, or enjoying the benefits of federal programs. Nevertheless, FACE is not identical to previous federal civil rights laws, particularly where it prohibits acts of physical obstruction.
FACE brought on immediate challenges by anti-abortion groups who claimed that it abridged their First Amendment right to freedom of speech. Courts were unwilling to invalidate the law on this ground, reasoning that the law proscribes only conduct—as in “force,” “threat of force,” and “physical obstruction”—rather than speech (see Council for Life Coalition v. Reno, 856 F. Supp. 1422, No. 94-0843-1EG[CM], 1994 WL 363132 [S.D. Cal. 1994]).
The violence against clinics and the murder of abortion providers have given new momentum to the pro-choice, or abortion rights, side of the abortion issue. Family planning clinics that perform abortions are receiving increased protection from local, state, and federal statutes, with FACE the most prominent of these laws. However, the debate and litigation surrounding the issue of anti-abortion protests show little sign of abating, and anti-abortion protest groups are preparing to challenge the laws regulating their activities, on the grounds that such laws abridge freedom of speech.
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