Abortion

ARTICLES

ABORTION

EDITED BY IDA ADIBI, EMMA HOLLAND, CLARA MALKIN, JESSICA MITTEN,

NEELAM PATEL, ELLIE PERSELLIN, KATIE SCHWARM, AMARIS TROZZO,

NOREEN VERINI, AND ELAN WILKENFELD

I. INTRODUCTION ......................................... 279

II. CONSTITUTIONAL ABORTION RIGHTS .......................... 282

III. REGULATION OF ABORTION ................................ 292

A. LEGISLATIVE BANS ON ABORTION ........................ 292

1. Bans on Fetal Development. . . . . . . . . . . . . . . . . . . . . . . 293

2. Bans Based on the Reason for the Abortion. . . . . . . . . . . 295

3. Bans Based on Medical Procedures Used . . . . . . . . . . . . 297

a. Surgical Abortion Bans . . . . . . . . . . . . . . . . . . . . . . 298

b. Medication Abortion Bans and Restrictions . . . . . . . 303

B. LEGISLATIVE RESTRICTIONS ON THE PROVISION OF ABORTION. . . . . 305

1. Targeted Regulations of Abortion Providers . . . . . . . . . . 306

2. Counseling, Waiting Periods, and Ultrasound

Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309

3. Parental Involvement Laws for Minors . . . . . . . . . . . . . . 313

IV. PUBLIC FUNDING AND ABORTION ............................ 315

A. FEDERAL BANS ON PUBLIC FUNDING FOR ABORTION ........... 316

B. STATE BANS ON PUBLIC FUNDING FOR ABORTION............. 320

V. PRIVATE INSURANCE COVERAGE FOR ABORTION .................. 322

VI. TRENDS TOWARD FETAL PERSONHOOD ........................ 323

A. FEDERAL AND STATE FETICIDE LAWS ..................... 324

B. FETAL PERSONHOOD AND TORT LAW ..................... 329

C. FETAL PERSONHOOD UNDER STATE LAW-CONSTITUTIONAL

AMENDMENTS AND LEGISLATION ........................ 330

VII. CONCLUSION .......................................... 332

I. INTRODUCTION

The landmark decision of Roe v. Wade prompted an escalation of the abortion

rights dialogue of the 1960s, propelled on one side by the women’s movement

and concerns about the health implications of illegal abortions and population

279

growth, and on the other by pressure from the Catholic Church and political

parties.

1

Roe v. Wade established the right to abortion in the United States.

2

However,

since the 1973 Roe decision, anti-abortion activism has created a complex legal

landscape surrounding the constitutional right to abortion. The Supreme Court

retreated from the broad protection of abortion within the f‌irst trimester under

Roe’s framework in the early 1990s, establishing an “undue burden” standard in

Planned Parenthood of Southeastern Pennsylvania v. Casey.

3

As lower courts struggled to implement the Casey standard, anti-abortion acti-

vists f‌looded state and federal legislatures with laws to test the constitutional lim-

its of abortion regulation. As of January 1, 2021, at least twenty-three states have

imposed stringent standards on abortion clinics,

4

including mandated counseling

designed to dissuade people

5

from obtaining abortions,

6

required waiting periods

before an abortion,

7

required parental involvement before a minor obtains an

abortion,

8

and limited use of state Medicaid funds to pay for medically necessary

abortions,

9

all of which narrow the protections of abortion rights under the Casey

standard.

10

Twenty-four years after Casey, in Whole Woman’s Health v. Hellerstedt, the

Court upheld the undue burden standard and used it to strike down a stringent

Texas state law that required abortion providers to obtain admitting privileges at

a local hospital and abortion clinics to make signif‌icant structural modif‌ications

1. See Stephanie Schorow, Setting the Stage for Roe v. Wade, THE HARV. GAZETTE (Nov. 5, 2010),

https://news.harvard.edu/gazette/story/2010/11/setting-the-stage-for-roe-v-wade/.

2. See Roe v. Wade, 410 U.S. 113 (1973).

3. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 837 (1992).

4. See State Laws and Policies: Targeted Regulation of Abortion Providers, GUTTMACHER INST. (Jan.

1, 2021), https://www.guttmacher.org/state-policy/explore/targeted-regulation-abortion-providers.

5. The Georgetown Journal of Gender and the Law acknowledges that people of all gender identities

may seek abortion and thus are also forced to navigate the same restrictive thicket of policies

surrounding abortion. Abortion is not just a cisgender women’s issue, but that of any pregnant person,

independent of their gender identity. Because the vast majority of case law and statutory code regarding

abortion refers exclusively to cisgender women, this Article will use the terms “woman” or “women”

when directly discussing statutes and case law that refer only to cisgender women, and otherwise seek to

use more gender-inclusive language. While a more robust discussion of the particular diff‌iculties that

trans and nonbinary people face in obtaining abortion is beyond the scope of this Article, it is worth

Noting that particularly because most laws and decisions only refer to cisgender women, those who are

not cisgender may experience additional diff‌iculties in seeking abortion care. See generally Heidi

Moseson et al., The Imperative for Transgender and Gender Nonbinary Inclusion, 135 OBSTETRICS &

GYNECOLOGY 1059, 1059–68 (2020); Caitlin van Horn, Trans and Nonbinary People Get Abortions

Too, ALLURE (July 30, 2019), https://www.allure.com/story/abortion-gender-neutral-language-transgender-

men-nonbinary.

6. See State Laws and Policies: Counseling and Waiting Periods for Abortion, GUTTMACHER INST. (Jan.

1, 2021), https://www.guttmacher.org/state-policy/explore/counseling-and-waiting-periods-abortion.

7. See id.

8. See State Laws and Policies: Parental Involvement in Minors’ Abortions, GUTTMACHER INST. (Jan. 1,

2021), https://www.guttmacher.org/state-policy/explore/parental-involvement-minors-abortions.

9. See State Laws and Policies: State Funding of Abortion Under Medicaid, GUTTMACHER INST. (Jan.

1, 2021), https://www.guttmacher.org/state-policy/explore/state-funding-abortion-under-medicaid.

10. See Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2314–18 (2016).

280 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. XXII:279

to meet the standards of an ambulatory surgical center.

11

The victory in Whole

Woman’s Health was somewhat limited by the Supreme Court’s opinion of June

Medical Services v. Russo.

12

Chief Justice Roberts’s concurrence in that case,

which found the Louisiana restriction on clinics to be an undue burden based on

the precedent of Whole Woman’s Health, called for a reevaluation of Whole

Woman’s Health itself.

13

Chief Justice Roberts argued that instead of balancing

benef‌its and burdens as was done in Whole Woman’s Health, the Court should

revert to a two-pronged analysis of (a) whether the law imposes a substantial ob-

stacle and (b) whether said restriction passes rational basis review.

14

Given the

newly-minted conservative 6-3 majority on the Court,

15

further restrictions on the

right to an abortion, as seen in Chief Justice Roberts’s concurrence, should be

anticipated. It will be more diff‌icult for abortion rights activists to overcome the

“rational basis” test to limit regulations.

This article examines various developments in abortion law between 1973 and

2020 and explores the current state of abortion law in the United States. Part II

looks at the development of the federal constitutional right to abortion from Roe

v. Wade through June Medical Services. Part II also describes the current land-

scape of state constitutional abortion rights. Part III discusses legal regulation of

abortion, including actual bans on particular procedures and de facto bans on

abortion that make performing the procedure so onerous that physicians may be

unwilling to incur the extra liability. Part IV examines the continued impact

made by cutting public funding for abortions pursuant to the now forty-year-old

Hyde amendment. Part V addresses the state restrictions on private insurance

coverage for abortion and the trend towards these restrictive policies following

the passage of the Patient Protection and Affordable Care Act (“PPACA”). Part

VI examines requirements and laws that ref‌lect a growing trend toward fetal per-

sonhood despite the Court’s holding in Roe v. Wade that, under the Fourteenth

Amendment, a fetus is not a “person.”

16

Finally, in Part VII, this article ref‌lects on the importance of the Supreme

Court’s decision to take up June Medical Services and what the case means for

abortion rights moving forward, especially given recent changes in the Supreme

Court’s composition. In the past two years, Justice Kavanaugh was nominated

11. Id. at 2300.

12. Gretchen Borchelt, Symposium: June Medical Services v. Russo: When a “Win” is Not a Win,

SCOTUSBLOG (June 30, 2020, 12:31 PM), https://www.scotusblog.com/2020/06/symposium-june-

medical-services-v-russo-when-a-win-is-not-a-win/.

13. June Medical Servs. v. Russo, 140 S. Ct. 2103, 2135–36 (2020) (Roberts, C.J., concurring)

(“Nothing about Casey suggested that a weighing of costs and benef‌its of an abortion regulation was a

job for the courts.”).

14. Id. at 2135.

15. Joan Biskupic, The Supreme Court Hasn’t Been This Conservative since the 1930s, CNN:

POLITICS (Sept. 26, 2020, 6:33 PM), https://www.cnn.com/2020/09/26/politics/supreme-court-

conservative/index.html.

16. Roe v. Wade, 410 U.S. 113, 158 (1973).

2021] ABORTION 281