Slide 19 of 49

Roe v. Wade (United States Supreme Court, 1973)

Jane Roe (a.k.a. Norma McCorvey), of Texas, claimed to have become pregnant as a result of a rape. (In 1987, she admitted that she lied about being raped). Two female lawyers enlisted her aid to test the 100-year old Texas law banning abortion. They filed a class action lawsuit and won, but not in time to secure an abortion for their client who gave birth to a daughter and placed her for adoption. The case made its way to the United States Supreme Court. On January 22, 1973, the United States Supreme Court, in two separate decisions (Roe v. Wade and Doe v. Bolton), invented a woman’s "right to abortion" (which is not specified in our U.S. Constitution) based on a "right to privacy," Roe mandated a policy commonly known as "abortion on demand," according to these guidelines:

1. The First Trimester: The Court held that during the first 3 months, the decision to abort must be completely left to the judgment of the pregnant woman and her doctor. The State cannot interfere with the abortion decision at all.

2. The Second Trimester: The State cannot protect the fetus. The State may promote its interest in the health of the mother, if it so chooses, by regulating the abortion procedure in ways that are "reasonably related to maternal health," i.e., qualifications of abortionist and type of facility.

3. The Third Trimester: The State may, if it chooses, regulate and even forbid abortion to protect a viable fetus, except where it is necessary for the preservation of the "health" or the life of the mother.

Doe v. Bolton (United States Supreme Court, 1973)

In the companion case, Doe, the Court stated that the health of the mother includes: "physical, emotional, psychological, familial, and the woman’s age…." In other words, "health" essentially means that any stress upon a pregnant woman justifies an abortion because such factors relate to her complete well-being.

In essence, these two decisions gave American women the right to confidential abortion on demand up to the moment of birth. The particularly chilling aspect of the 1973 decisions was that the humanity of the preborn child was purposefully ignored. The Court held that the preborn human is not a person, therefore not deserving of any protection from the government.

Planned Parenthood v. Casey (United States Supreme Court, 1992)

The United States Supreme Court reaffirmed a woman’s right to end pregnancy in early stages and made it clear that a total ban on abortion would be found unconstitutional.

The Court explicitly reaffirmed Roe v. Wade by a five to four decision. (O’Connor, Kennedy, Souter, Blackmun and Stevens for Roe; Rehnquist, White Scalia and Thomas against Roe).

Under this decision, abortion is still legal for any reason from conception to birth - and the broad "health" definition for post-viability abortions is still the law. However, the court did reformulate the legal rationale of Roe. Instead of the trimester framework, a new "bimester" framework had been established, with viability the dividing line.

The court also created the "undue burden" test for reviewing abortion legislation. The test will look to see whether the abortion regulation’s "purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." While this standard still prevents states from prohibiting abortions before viability, laws that attempt to persuade women from aborting can be passed. A majority of the Court upheld most of the regulations of the Pennsylvania Control Act, including the legality of Informed Consent, 24-hour Waiting Period, Parental Consent and Reporting Requirements. The court, however, struck down spousal notification.