Abortion in Colorado: if Roe v. Wade Is Reversed
| Publication year | 1990 |
| Pages | 807 |
1990, May, Pg. 807. Abortion in Colorado: If Roe v. Wade is Reversed
Since the U.S. Supreme Court decision in Webster v. Reproductive Health Services(fn1) in July 1989, lawyers and others have been interested in reassessing the constitutional right of abortion. Although Webster did not reverse this right, as defined in Roe v. Wade,(fn2) and Doe v. Bolton,(fn3) Webster does allow states to establish more legal restrictions on abortions. In fact, several justices indicated that a reversal of Roe and Doe was possible in the near future. For example, Justice Scalia declared that Roe and Doe should be overruled outright and criticized the Court for failing to do so. The Court will decide two more cases concerning limitations on abortion rights this term.(fn4)
In Colorado, from its early history to the late 1960s, nearly all abortions were prohibited. In 1967, Colorado passed one of the first "liberalized" abortion laws. The 1967 law allowed abortion in the event of rape or incest or when continuation of the pregnancy is likely to result in the woman's death or serious impairment to her physical or mental health, or result in the birth of a child with a physical deformity or mental retardation.(fn5) That law was largely held ineffective in 1973 by the U.S. Supreme Court with Roe and Doe and later decisions.
This article examines the U.S. Supreme Court decisions on abortion and the general law of privacy on which the Court based some of its findings, findings which also could apply under federal statutes, state constitutions and state law. The article then analyzes federal and other states' case law interpreting constitutional rights to abortion. Finally, the article discusses Colorado's abortion statute and constitutional guarantees. The question many are asking is whether abortion rights in Colorado will continue to be protected if federal constitutional protection of abortion rights disappears.
The 1973 U.S. Supreme Court decisions in Roe and Doe established United States constitutional rights to an abortion. Roe held:
This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.
... the word "person," as used in the Fourteenth Amendment, does not include the unborn.(fn6)
Thus, Roe struck down a Texas law which imposed criminal sanctions for
Howard Holme is a shareholder and director and Craig A. Umbaugh is an associate of the Denver firm of Fairfield and Woods, P.C.
Doe held unconstitutional under the Fourteenth Amendment provisions of a Georgia statute that was modeled on the same American Law Institute Model Penal Code as was Colorado's 1967 law. Doe held unconstitutional provisions (which existed in both the Colorado and Georgia statutes) that required accreditation of the hospital where the abortion was to be performed, advance approval of the abortion by a hospital committee, and advance approval of two other physicians. The Court also found Georgia's requirement that a woman obtaining an abortion be a resident of Georgia was unconstitutional under the Privileges and Immunities Clause of Article VI of the Constitution.
Roe and Doe relied heavily on Griswold v. Connecticut,(fn9) which held unconstitutional Connecticut's statute prohibiting the use of contraceptives. Griswold, in turn, relied on earlier decisions establishing certain rights to privacy under the First, Third, Fourth, Fifth and Fourteenth Amendments to the U.S. Constitution.(fn10) Justice Brandeis, in 1928, recognized the right to privacy and called it the right "to be let alone."(fn11) Constitutional privacy rights include the right to educate a child in the parents' choice of school if the parents pay for it, the right to associate and privacy in one's associations, the right of belief, activities relating to marriage and procreation, the right to remain silent as to one's beliefs, the privacy of first class mail, and the right to plan one's own affairs. Griswold found that the Bill of Rights guarantees not only rights specifically enumerated, but creates penumbras containing rights not specifically enumerated, but necessary to ensure constitutional guarantees.(fn12)
The U.S. Supreme Court extended the holdings in Roe and Doe. Planned Parenthood of Central Missouri v. Danforth(fn13) held unconstitutional requirements that (in order to make abortion legal), in addition to the consent of the woman requesting an abortion, consent must also be obtained from the spouse of a married woman or from the parents of a minor woman. Akron v. Akron Center for Reproductive Health, Inc.(fn14) held unconstitutional laws requiring parental notification where the laws did not provide a "judicial bypass" that would allow a court to approve an abortion in place of or contrary to parental wishes. Thornburgh v. American College of Obstetricians and Gynecologists(fn15) held unconstitutional various other requirements, including that the patient be counseled by physicians before the abortion.
Webster was decided just a few years after Akron and Thornburgh. It became the first U.S. Supreme Court opinion upholding substantial state restrictions of abortion rights since Roe. In Webster, the Court upheld as constitutional Missouri laws prohibiting the use of public facilities or public employees to perform abortions that are not necessary to save the mother's life and requiring physicians to perform fetal viability tests if it is believed that at least twenty weeks of gestation have passed. The Court also held that it did not need to rule on the preamble of the Missouri statute which states that life begins at conception and that unborn children have a protectable interest in health, life, and well-being, finding the preamble had no effect at law.(fn16)
To the extent that U.S. Supreme Court decisions hold that the U.S. Constitution protects the right to abortion, only a federal constitutional amendment could take away that right. However, if the Court were to extend Webster and erode or eliminate constitutional protections to abortion, state constitutions, federal and state statutes and common law regarding abortion will become more important.
It is highly unlikely that the U.S. Supreme Court will prohibit abortion as a matter of constitutional law. No member of that Court has ever endorsed the view that a fetus is a protected "person" under the U.S. Constitution.(fn17) Instead, if Roe and Doe are reversed, the U.S. Supreme Court probably would allow other lawmakers, including Congress, the state supreme courts and state legislatures to establish laws protecting or restricting abortion.
Provisions of a federal law could preempt restrictions or protections otherwise existing under state constitutions or state law. One example of a federal law which would preempt state law is the federal Freedom of Choice Act of 1989,(fn18) introduced in both houses of Congress. It was sponsored by 24 Senators and 117 Representatives as of March 30, 1990. If enacted, it would protect the right to abortion to a large degree. Its § 2 reads:
(a) IN GENERAL.---Except as provided in subsection (b), a state may not restrict the right of a woman to choose to terminate a pregnancy---
(1) before fetal viability; or
(2) at any time, if such termination is necessary to protect the life or health of the woman.
This short provision would largely codify the results of U.S. Supreme Court opinions (before Webster) on abortion(b) MEDICALLY NECESSARY REQUIREMENTS.---A State may impose requirements medically necessary to protect the life or health of women referred to in subsection (a).
In summary, the U.S. Supreme Court has construed the U.S. Constitution in such a way as to protect a woman's right to an abortion, albeit allowing certain state restrictions. If it reverses its decisions allowing the abortion choice and Congress does not pass a statute which would protect or prohibit, on a national scale, the right to abortion, then state supreme courts and state legislatures will have to decide under what, if any, circumstances abortions will be available.
A number of states, including California, Massachusetts, Connecticut, New Jersey, Florida and Vermont, have found that their state constitutions protect the right to abortion.(fn19) State supreme court decisions interpreting their own constitutions control state statutes on the subject. Some of these decisions preceded and helped influence the outcome of Roe and Doe, and some are recent. These states have constitutions more or less similar to Colorado's. It is likely that such...
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