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

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT