Legal Issues on AbortionIntroduction/ThesisIn 1973, the United States Supreme Courts answered some of the legal questions on the constitutionality of abortion on the cases of Roe v. Wade and Doe v. Bolton. Unfortunately, such decisions did not resolve the moral questions.
As a matter of fact, as suggested by the strong reactions to the Court’s decisions, the flames of the controversy were fanned, and the anti-abortionists reacted to their loss by organizing and fighting a more heated and more effective battle to get their message across to the public and to Congress.The Supreme Court’s 1973 decisions had left a number of subsidiary legal questions unsettled. For instance, the questions of husband’s consent or parent’s consent (in cases of a minor) for an abortion were not addressed because these were not at issue in the two cases before the Court.
Nor did the Court deal with the use of public funds for abortions, nor with a number of procedural requirements for an abortion, such as waiting periods. These questions emerged after the 1973 decisions as some states added requirements for husband’s consent, parental consent, waiting periods, and a variety of other requirements to try to limit the number of legal abortions. In view of the fact that the U.S.
Supreme Court had not ruled on these issues, the courts and state legislatures played a cat and mouse game as states tried out new restrictions and the courts ruled on them. The courts largely quashed these restrictions, especially since some of them were clearly stepping beyond the constitutional boundary the Court had established in 1973 to protect a woman’s right to decide on an abortion. Nevertheless, not al state statutes were ruled unconstitutional; additionally, Congress also entered the dispute by challenging the expenditure of federal funds for induced abortions.From 1973 up to 1986, the history of the legal controversy on abortion can be described as one in which the courts generally supported a woman’s right to an abortion without outside interference, but failed to support the position that the federal government or the states had an obligation to provide funding for abortions.The Original LawsOriginal laws on abortion refer to the first state statutes passed along with any revisions up to 1966, since many abortion statutes went through one or several revisions over the years. But the legislative changes that occurred between 1967 and 1970 were more dramatic than the changes in the prior one hundred years and “original” has then become synonymous with “restrictive.
” Indeed, the original U.S. abortion laws strictly forbade abortion except for one “therapeutic” exception. From the Michigan statute, the typical wording of this exception is: “unless the same abortion shall have been necessary to preserve the life of such woman.” Original statutes not following this pattern were few: Alabama, the District of Columbia, and Oregon included life and health; Colorado and New Mexico contained life and serious or permanent bodily injury; the Maryland statute’s only exception was “that no other method will secure the safety of the mother”; and the Massachusetts, New Jersey, and Pennsylvania laws gave no therapeutic exception.In addition to stating a therapeutic exception which provided a justifiable reason for abortion, some of these statutes also set certain conditions or procedural requirements regulating abortion. Even though consultation requirements and procedural requirements regarding who performs abortions appeared in only a few of the original laws, they came to play a key role in the administration of the original laws and in the post-1966 legislation. Eleven of the pre-1966 statutes specified that a physician or surgeon do the operation, and sixteen states required that “prior consultation with one or more physicians is necessary before a claim of justification can be made” (George 1967, pp.
7 ; 9).Harper (1958) pointed out variations on who had the burden of proof in abortion cases, the state or the defendant, but only a few statutes were specific on this point. Either the state assumed the burden of “proving non-compliance with law beyond a reasonable doubt”, or the doctor-defendant had to establish the medical necessity of the abortion (George 1972). When the statutes were silent on this matter, it became a question of judicial interpretation, and George (1972) found that the courts most often placed the burden “on the state to plead and prove the want of medical justification, provided the defendant is shown to be a licensed medical practitioner.” These rulings in favor of physicians help to explain why no prosecutions resulted even though physicians wrote and talked about hospital-performed abortions that did not comply with the law. As George said: “If the prosecutor has to attack the medical judgment of a doctor, particularly one who performs an abortion in a hospital or public clinic under the supervision of his peers on a special committee, and sustain that attack in court subject to a burden of proving non-compliance with law beyond a reasonable doubt, it is unlikely that he will proceed at all” (1972, p. 733).
A few of the original statutes held the woman guilty of a crime if she aborted herself or submitted to an abortion, and at least one state, Vermont, in considering new abortion legislation in 1972, debated a provision for punishing the woman who aborts herself (George 1967; Means 1968; Burlington Free Press, February 2, 1972). George discussed the legal effect of these provisions:. . . the fact that the woman is deemed to have committed a criminal act means that the woman may claim privilege against self-incrimination when she is summoned to testify for the state. However, because of the importance, in many instances, of the woman’s testimony in establishing the abortionist’s guilt, .
. . immunity against prosecution is conferred upon the woman when she testifies for the state.
This brings the matter around full circle to about where it would be if the woman were not considered a criminal in the first place. (1967, pp. 13-14)While these provisions to punish the woman led to a rather ridiculous legal situation, they symbolically fulfilled the need of some to punish the aborting woman for her moral transgression against society.Abortion can also be regulated by what George called “administrative sanctions.” This refers to the control of licensed medical personnel and hospitals through licensing statutes. George found that performance of or participation in a “criminal” or “unlawful” abortion constituted grounds for license revocation in most states (1967, pp. 17-18). Even where no statutory provision existed for revocation of license, “there is statutory authorization for revocation based on conviction of a felony or unprofessional conduct in general” and “since abortion has been declared a form of unprofessional conduct, it is clear that there is no state in which a proven abortionist can continue to practice without his license being subject to revocation” (1967, p.
18). Even though the loss of license for performing criminal abortions was a relatively rare occurrence, the fear inspired up until 1973 by labeling the practice of unlawful abortion as unprofessional conduct should not be underestimated.One of the reasons for the small number of license revocations due to abortion stemmed from a liberalization in medical thinking that accompanied the growing gap between the law and medical practice.
While the original abortion laws were restrictive, they came to be liberally administered by some members of the medical profession.A certain study published in 1959 illustrates the variable administration of restrictive laws. Packer and Gampbell investigated “medical standards and practices viewed in the light of current legal norms” (1959, p. 422). They mailed a two-part questionnaire to the chiefs of the obstetrical services of twenty-nine representative hospitals in the San Francisco and Los Angeles areas. The first part of the questionnaire collected information about such things as the hospital’s procedures in deciding which abortions to do, the number of abortions performed, and the attitudes of the physicians.
The second part of the questionnaire described eleven hypothetical cases of women requesting abortions and asked each hospital to treat the cases as if they were actually being presented for approval. Twenty-five of the twenty-nine hospitals answered part two, and twenty-two gave a hospital decision on the hypothetical cases. In most of the cases, the indications for abortion accepted by the hospitals did not coincide with the therapeutic exception of California’s law at that time.
Until the 1940s “therapeutic abortion was a relatively common procedure, well accepted by the majority of physicians as properly indicated for the preservation of the mother’s fife or immediate health in certain complicated pregnancies” (Russell 1953, p. 108). Afterwards, an “extensive realignment of indications for therapeutic abortion” took place within the medical community, and as the Packer-Gampbell cases illustrate, physicians disagreed about acceptable indications for an abortion. Guttmacher summed up the reasons for such disagreement when he wrote in answer to the question “Who should be aborted?”: “Two authors of equally good intent could give different answers, since their judgment in large measure would be affected by their training, experience and social background, and by the institutions in which they have worked” (1967, p. 16).
The net effect of this disagreement and confusion, especially up until 1973, resulted into the establishment of separate therapeutic abortion policies and procedures by each hospital. In the absence of agreement within the larger medical community and in view of increasing discrepancies between the law and medical practice, each hospital set up its own regulations. Various approval systems developed, and the therapeutic abortion committee, started in 1945 by Alan Guttmacher, soon became the most popular method of deciding who received an abortion.
Russell enumerated the “manifold values” of a review committee: “1) they serve as deterrents to the indiscriminate use of therapeutic abortion; 2) they act in the best interests of the patient; 3) they are a medicolegal safeguard for the physician; and 4) they serve as repositories for the accumulation of data concerning the utilization and outcome of cases submitted for the therapeutic interruption of pregnancy” (quoted in Hammond 1964, p. 353).From early to mid-1960s, Russell’s evaluation represents this prevailing attitude notwithstanding the physicians’ objection to the committee system. The committees controlled the number and kinds of cases approved and thereby were “deterrents to the indiscriminate use of therapeutic abortion” by those physicians considered to be too liberal in dispensing abortions.
Additionally, by sharing the responsibility for the decision, rather than placing it in the hands of the individual physician, the committees provided a “medicolegal safeguard” against the ever-present threat of legal action. That committees acted “in the best interests of the patient” is questionable. Phelan and Maginnis gave one of the shortest and most critical descriptions of the purpose and workings of the committee system: “The hospital abortion committee is a completely unnecessary medical precaution, and is simply a smokescreen behind which sexual discrimination flourishes and individual doctors protect themselves against criticism by having this anonymous committee sanction their dereliction of duty towards their female patients” (1969, p.
91).Whether one approved or disapproved of the committee system probably depended upon one’s belief about who should have the ultimate decision-making power. But abortion committees dearly served a purpose for hospitals and physicians in a situation where little consensus could be achieved and where the law left the decision in medical hands. As Karl Schaupp Jr. discussed the composition and workings of committees, he noted that a committee could be set up to “make it do anything you want” resulting in an abortion rate “all the way from zero up to almost no restrictions” (quoted in Hammond 1964, p. 353). Committee decisions were influenced by physicians who wanted legal changes and reasoned that changes would come about only by showing legislators that the incidence of abortion would not soar and could be controlled by the medical profession’s committee system. In 1964 Hammond concluded a paper and discussion on hospital committees with the remark: “I hope that the presentation of a paper like this will help Dr.
Overstreet in his testifying before the legislature to show a conservative trend and a responsible trend among the medical profession so that the lawyers and the legislature will turn the problem back to doctors where it belongs” (1964, p. 355).The Reform LawsTo start with an oversimplification, whereas the original laws generally permitted abortions only to save the pregnant woman’s life, the reform laws added health, fetal deformity, and felonious intercourse as indications for a legal abortion. The reform laws were passed between 1966 and 1972 and attempted to clarify or expand the pre-1966 original laws.At an almost without exception, the reform laws went beyond the original laws to expand the indications for a legal abortion. Nevertheless, there were also pressures in some states to go beyond the original laws by strengthening their restrictive features against constitutional attack.
The first anti-abortionist reform law came with the passage of the 1972 Connecticut law. Shortly after a U.S. district court declared the original Connecticut abortion law unconstitutional, the state legislature passed a new law that contained the same therapeutic exception – to save the woman’s life – as the original law, provided a tougher penalty for performing or advising an unlawful abortion than the original law, and stated in a preamble to the new law that “it is the intent of the Legislature to protect and preserve human life from the moment of conception” (New York Times, June 28, 1972, p. C21).
This preamble was carefully prepared in order to prevent further court debate about the intent of the legislature and to reform the original law by strengthening its constitutional basis. But this strengthened law was also ruled unconstitutional by a federal district court.Reform legislation, especially from 1966 through 1969, was typically based on a moderate law proposed in the American Law Institute’s Model Penal Code. The Code states that,A licensed physician is justified in terminating a pregnancy if he believes there is substantial risk that continuance of the pregnancy would gravely impair the physical or mental health of the mother, or that the child would be born with grave physical or mental defect, or that the pregnancy resulted from rape, incest, or other felonious intercourse. All illicit intercourse with a girl below the age of 16 shall be deemed felonious for purposes of this subsection. Justifiable abortions shall be performed only in a licensed hospital except in case of emergency when hospital facilities are unavailable. (American Law Institute, 1962, pp.
189-90)In 1966, Mississippi quietly altered its abortion law by adding a provision for rape, without specifying whether statutory or forcible rape or both was meant. The first big, noisy wave of legal changes came in 1967 when California, Colorado, and North Carolina passed laws based upon the American Law Institute recommendations.These reforms expanded the grounds for abortion along the fines suggested by the American Law Institute and added procedural requirements or conditions for abortions that were not mentioned by the American Law Institute. The reform laws all included life, health, and either rape or incest or both as justifiable grounds for abortion, but these statutes were far from uniform. Some statutes used the words “life and health” while others specified life and physical and mental health. Statutes having no provision for fetal deformity presented a problem because “before reform many [physicians] did an abortion if the woman had rubella in the first trimester. Now, unless danger of ‘fetal defect’ is specifically mentioned in their state law, they do not always grant an abortion” (Irwin 1970, p.
80).In the reform laws, the procedural requirements apparent in the original laws were greatly elaborated. The reform statutes required abortions to be performed by physicians in hospitals almost without exception. The concept of treating the fetus differently according to the period of gestation appeared in some original laws as a distinction between a quickened and unquickened fetus, but the reform laws made more extensive and specific use of the time limit.Some statutes set a time limit beyond which abortion was not permitted or was permitted only if necessary to preserve the woman’s life (e.g.
Delaware and Maryland). Or, in Colorado the time limit applied only to cases of rape and incest. In addition to these conditions, two new procedural requirements appeared in some of the reform laws – residency regulations and consent clauses.
A residency requirement meant that a woman could not obtain an abortion in the state until she had been a resident for a specified period of time. Consent referred to statutory requirements of consent from a husband, parents, or guardian and was connected with the age or marital status of the woman. For instance, Alaska required consent from a parent or guardian if the woman was under 18 and unmarried.The greatest elaboration of previous provisions and the key to the administration and interpretation of the reform laws resided in the medical approval systems set up in the statutes. A certain number of consultants, a therapeutic abortion board, or a hospital review authority was mandatory. These approval systems were highly variable. A hospital review authority for instance could consist of one, two, three, or more members, and the approval bodies differed as to whether a unanimous or majority decision was required for approval.
One official from Califomia told how the manipulation of the committee system could result in a restrictive policy:The law … stipulates that for committees of three or less a unanimous vote is required, though for larger committees a majority vote is sufficient.
Hence, some hospitals will limit the committee to three members and permanently instate one dissident physician, effectively giving him permanent veto power.” (quoted in Plagenz 1969, pp. 82-83)Changes in committee procedures sometimes led to a more liberal policy. Marder reported on one California hospital where initially only “overtly psychotic or highly suicidal” patients were even referred to the abortion committee which resulted in the “rejection of a large proportion of early applications” (1970, p.
1232).The growing awareness that we were excluding patients who might be more favorably reviewed by the full committee led to a change in procedure that enabled all applications, regardless of the initial evaluation recommendation, to be presented to the committee for consideration. This liberalized philosophy brought about a more reasonable definition of mental illness for use by the committee: “A disorder of thinking, feeling or behavior producing a breakdown in living so that the individual cannot deal with reality or cannot function in dealing with daily problems of living.
” (Marder 1970, pp. 1232-1233)Many physicians and observers of the abortion scene saw the effect of these reform laws as making physicians “feel more secure in that what they were doing as a matter of course for years has now been sanctified by the legislature” (Walker and Hulka 1971, p. 444). In essence even before the reform laws were passed many physicians performed abortions to preserve the life or health of women as well as in cases of rape, incest, and fetal deformity; hence, the approval systems that evolved informally within the medical community were formally written into the law. By this reasoning, the legislatures that passed reform bills wanted physicians to continue the medical practices that had evolved and gave them the formal authority, through medical approval systems, to make decisions and set the policy.Some found this kind of law satisfactory, but most observers noted the difficulty of interpreting the laws and thus attacked the operation of the approval systems.
Physicians charged that no common definitions existed for phrases like “gravely impair,” “substantial risk,” or “mental health.” The approval systems set up in law to interpret these legal provisions were “cumbersome, time-consuming, and expensive,” and the “operation of the committee itself is highly vulnerable to individual prejudice on the part of members, and the process is far from scientific or rational” (Whittington 1970, p. 1228). The burden placed upon hospital committees to interpret the law when judging abortion requests has brought the system under attack in other countries, too. Since 1969, an abortion committee is required at each hospital in Canada. The system has been analyzed and criticized because it is arbitrary and capricious in its operation, because appeal procedures are lacking, because the variations among committees in their interpretations of the law has a discriminatory impact, and because it produces undue delay (Smith and Wineberg 1969-70; Badgeley Report 1977; Rodman 1981).In spite of the criticisms leveled against the reform laws, they initiated the trend toward liberalization and for a while they were seen as the most politically feasible course of action since they embodied a compromise between retaining the original restrictive laws and passing permissive repeal laws.Court cases and legal reasoningThe Issue of Husband’s ConsentIn the last footnote to its Roe v.
Wade decision, the U.S. Supreme Court pointed out that it was not discussing “the father’s rights” because this was not an issue presented to the Court. “No paternal right has been asserted in either of the cases, and the Texas and the Georgia statutes on their face take no cognizance of the father.” This left the door open for statutes to pass legislation that requires the pregnant woman’s husband’s consent to an abortion, and about one quarter of the states passed such legislation within two years of the Roe v. Wade decision.There are several arguments being advanced for requiring the husband’s consent.
He has a marital and parental interest in the pregnancy and possible birth. For the reason that he has sired the fetus, and may have an interest in its development, it is unfair and deceptive for the woman to be able to terminate the pregnancy without his knowledge or consent. “In the case of a married woman, the pregnancy may represent her husband’s great hope for and interest in posterity” (Wardle and Wood 1982, p. 78).
Definitely, procreation goes to the very heart of the marriage relation.Contrasting arguments have also been advanced. The husband may not have fathered the child; the husband may be strongly opposed to abortion; the husband may be emotionally unstable. Under such circumstances, requiring the husband’s consent may subject the woman to physical abuse and may lead to a disruption of the marriage.The state and federal courts that considered the question had almost all decided that the husband’s interest in the pregnancy and potential birth was not strong enough to overcome the woman’s privacy right to make a decision about abortion. Nonetheless, an exception was the federal court’s decision in a case involving a Missouri statute.
Missouri was one of the states that passed legislation that requires the husband’s consent before an abortion could be performed. With strong influence from the Roman Catholic Church, this restriction on abortion, among other states, was passed in 1974. The statute required the husband’s consent unless the abortion was necessary to save the woman’s life. Several other restrictions of Missouri law were challenged on constitutional grounds by Planned Parenthood of Missouri. Even though the federal court invalidated other requirements, it upheld the requirement for husband’s consent. On appeal to the U.S.
Supreme Court, though, the requirement for husband’s consent was held to be unconstitutional.In 1976, Supreme Court decided the case of Planned Parenthood of Central Missouri v. Danforth.
Missouri argued that the requirement for husband’s consent was justified by several compelling state interests, “including the husband’s interest in the future childbearing capacity of his wife, the state’s interest in regulating marriage relationships, and the states interest in seeing that a fundamental change in family membership set in motion by mutual consent should be terminated only by mutual consent” (Wardle and Wood 1982, p. 80).On the other hand, the U.S. Supreme Court did not accept the state’s reasoning. Even though it recognized that the husband has a legitimate interest in the pregnancy, and that an abortion can greatly influence the marriage, it did not agree that giving the husband veto power over his wife’s abortion decision would further the goals of mutuality and trust in the marriage, or strengthen the marriage relationship. It held that a state cannot give the husband an absolute veto when it does not have the authority itself. In actuality, the woman retained the right to make her own decision about the abortion, free of coercion, but also free to consult voluntarily with her husband or male partner.
The Issue of Parental ConsentOne of the most controversial questions that emerged after Roe v. Wade was whether minors had the right to make their own abortion decisions, or whether states could require parental consent. Should a pregnant 13-year-old be permitted, by law, to have an abortion without her parents’ consent? Does a minor have the social and psychological competence to make such a decision? Is a minor competent to care for an infant? If not, should the presumption be that abortion is her best alternative? Should we make it easier, rather than harder, for a minor to terminate her pregnancy? Would it help a minor’s decision to require that her parents be informed and involved? Would it help the parent-child relationship?Although the issue of parental involvement in the abortion decision has not been fully resolved, the cases decided thus far suggest roughly how far a state statute may go while stiff passing constitutional muster. It appears that a state may, if it desires, require parental consent or notification for a minor’s abortion, as long as it provides for certain exceptions. One exception is for emancipated minors–minors who are largely independent of their parents, such as those who are living away from their parents and supporting themselves. Another exception is to provide an expeditious route for dependent minors to demonstrate to the courts that they are mature and hence competent to make the decision on their own. Failing that, they must have the opportunity to demonstrate to the courts that obtaining an abortion without parental involvement is in their best interest.Do these decisions, which permit an important procedure without parental involvement, suggest that the U.
S. Supreme Court has abandoned its strong concern for parental autonomy and authority? The answer is no. As pointed out elsewhere:the possibility must be considered that the Danforth line of cases are direct responses to what the Court saw as deliberate attempts to thwart the effect of Roe v.
Wade, and that the Court has merely carved out a special exception to the doctrine of parental autonomy in the reproductive rights area. This interpretation would not be inconsistent with the Court’s previous decisions in the family planning/abortion area, where one finds repeated examples of the Court’s impatience with legislative policies that are antagonistic to family planning efforts. (Rodman, Lewis, and Griffith 1984, pp. 68-69)At present, more than one-third of the states have laws requiring either parental consent or notification, although some of these laws have been enjoined on constitutional grounds. These laws create obstacles and delays for minors seeking an abortion (Rodman, Lewis, and Griffith 1984). In Massachusetts, for example, which required either parental or judicial consent for unmarried minors beginning in 1981, the number of abortions for minors declined by nearly 50 percent.
The total number of abortions obtained by Massachusetts minors, however, was only slightly reduced. Many minors obtained an abortion in nearby states that did not have parental consent requirements (Cartoof and Klerman 1986). Works CitedAmerican Law Institute. Model Penal Code, 2d ed. Philadelphia: American Law Institute, July 30, 1962.Badgeley Report. Report of the Committee on the Operation of the Abortion Law (Robin F.
Bagley, Chairman). Ottawa: Minaster of Supply and Services, 1977.Cartoof, Virginia G. and Lorraine V.
Klerman. 1986. “Parental consent for abortion: Impact of the Massachusetts law”. American Journal of Public Health 76 (1986): 397-400.George B. James Jr. The evolving law of abortion. Western Reserve Law Review 23 (1972): 708-755.
—. “Current abortion laws: Proposals and movements for reform”. In David Smithe, ed.
, Abortion and the Law, pp. 1-36. Cleveland: Case Western Reserve Press, 1967.Guttmacher Alan. F., ed. The Case for Legalized Abortion Now. Berkeley, Calif.
: Diablo Press, 1967.Hammond Howard. “Therapeutic abortion: Ten years’ ex-“, 1964.Harper Fowler. In Mary S. Calderone, ed., Abortion in the United States, (1958): pp.
187-195.Irwin Theodore. “The new abortion laws: How are they working?” Today’s Health 48 (1970): 21.Marder Leon. “Psychiatric experience with a liberalized therapeutic abortion law”.
American Journal of Psychiatry 126 (1970): 1230-1236.;Means Cyril C., Jr. “The law of New York concerning abortion and the status of the fetus, 1664-1968: A case of cessation of constitutionality”.
New York Law Forum 14 (1968): 411-515.Packer Herbert L. and Ralph J. Gampbell. “Therapeutic abortion: A problem in law and medicine”.
Stanford Law Review 11 (1959): 417-455.Phelan Lana C. and Patricia T. Maginnis. The Abortion Handbook for Responsible Women.
Canoga Park, Calif: Weiss, Day, and Lord, 1969.Plagenz Lorry. 1969. “States legislate abortion reform, but hospitals are reluctant to comply”. Modern Hospital 113 (1969): 82-85.Rodman Hyman. “Future directions for abortion morality and policy”.
In Paul Sachdev, ed., Abortion: Readings and Research, pp. 229-237. Toronto: Butterworths, 1981.Rodman Hyman, Susan H. Lewis, and Saralyn B.
Griffith. The Sexual Rights of Adolescents: Competence, Vulnerability, and Parental Control. New York: Columbia University Press, 1984.
Russell Keith P. “Changing indications for therapeutic abortion”. Journal of the American Medical Association 151 (1953): 108-111.Smith Kenneth D. and Harris S. Wineberg.
“A survey of therapeutic abortion committees”. Criminal Law Quarterly 12 (1969-70): 279-306.Walker W. B. and J. F. Hulka. “Attitudes and practices of North Carolina obstetricians: The impact of the North Carolina abortion act of 1967”.
Southern Medical journal 64 (1971): 441-445.Wardle Lynn D. and Mary Anne Q. Wood. A Lawyer Looks at Abonion. Provo, Utah: Brigham Young University Press, 1982.Whittington H. G.
1970. “Evaluation of therapeutic abortion as an element of preventive psychiatry”. American Journal of Psychiatry 126 (1970): 1224-1229.;;