Abortion

• Author: Lettie Rose/Kaitlin Gauthier/Sydney Brinker/Katie Henneke/Chunhui Li
• Pages: 201-251

ARTICLES

ABORTION

EDITED BY LETTIE ROSE, KAITLIN GAUTHIER, SYDNEY BRINKER,

KATIE HENNEKE, AND CHUNHUI LI

I. INTRODUCTION ......................................... . 201

II. FEDERAL ABORTION LAWS ................................. 202

III. OVERTURNING ROE V. WADE ................................ 203

A. THE DOBBS V. JACKSON DECISION ........................ 204

B. LEGISLATIVE PROTECTIONS OF ABORTION ................... 206

C. BANS BASED ON FETAL DEVELOPMENT .................... 207

D. MEDICATION ABORTION BANS AND RESTRICTIONS ............. 208

IV. PUBLIC FUNDING AND ABORTION ............................. 210

A. FEDERAL BANS ON PUBLIC FUNDING FOR ABORTION ........... 211

B. STATE BANS ON PUBLIC FUNDING FOR ABORTION ............. 213

V. FETAL PERSONHOOD ..................................... . 214

A. FEDERAL AND STATE FETICIDE LAWS ..................... . 214

B. FETAL PERSONHOOD, TORT LAW, AND CIVIL CAUSES OF ACTION . . 220

C. FETAL PERSONHOOD UNDER STATE LAW: CONSTITUTIONAL

AMENDMENTS AND LEGISLATION ......................... 221

VI. CONCLUSION ........................................... 224

APPENDIX ................................................. 225

I. INTRODUCTION

The landmark decision of Roe v. Wade, establishing the right to abortion in

the United States,

1

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 growth, and on the other

by pressure from the Catholic Church and political parties.

2

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

https://perma.cc/T9GG-W27R.

Since 1973, anti-

abortion activism has created a complex legal landscape surrounding the constitu-

tional right to abortion.

3

The Supreme Court retreated from the broad protection

of abortion within the first trimester under Roe’s framework in the early 1990s,

1. See Roe v. Wade, 410 U.S. 113, 129 (1973), overruled by Dobbs v. Jackson Women’s Health Org.,

142 S. Ct. 2228 (2022).

2.

3. See generally Roe, 410 U.S. 113.

201

establishing an “undue burden” standard in Planned Parenthood of Southeastern

Pennsylvania v. Casey.

4

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. Dobbs v. Jackson Women’s Health Organization

overturned both Roe and Casey in 2022.

5

This decision, which was leaked in May

2022 and published in June 2022 with minor changes, ended the federal constitu-

tional guarantee of abortion rights and returned the full power to regulate abortion

care to the states.

6

This Article examines developments within the past eight years in abortion

law, particularly the Supreme Court’s reasoning in Dobbs. Part II describes the

current landscape of constitutional abortion rights, including federal abortion

legislation that remains post-Dobbs. Part III discusses state trigger bans and state

protections that have come into effect after Dobbs, bans based on fetal develop-

ment, and medication abortion bans and restrictions. Part IV describes restrictions

on the use of federal and state public funding for abortion procedures. Finally,

Part V discusses fetal personhood.

II. FEDERAL ABORTION LAWS

In Roe, the Supreme Court held that the right to personal privacy, guaranteed

by the Constitution, included the right to choose to terminate a pregnancy via

abortion.

7

Roe grounded the right to abortion in the right to privacy found in the

penumbras of the Bill of Rights recognized in Griswold v. Connecticut

8

and

Eisenstadt v. Baird.

9

However, the Court also recognized that the right to abortion

is not an absolute right and that certain compelling state interests—primarily pro-

tecting a pregnant person’s health and the potential life of the fetus—justify the

regulation of abortion.

10

These interests influenced the development of the trimes-

ter framework, based on the developmental stage of the fetus, for determining

whether state regulation was permissible.

11

Under this framework, states gain

more regulatory authority as a pregnancy progresses.

12

4. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 837 (1992), overruled by Dobbs v. Jackson

Women’s Health Org., 142 S. Ct. 2228 (2022).

5. Dobbs, 142 S. Ct. at 2242.

6. Id. at 2243.

7. Roe, 410 U.S. at 153.

8. Griswold v. Connecticut, 381 U.S. 479, 484–85 (1965); Roe, 410 U.S. at 129.

9. Eisenstadt v. Baird, 405 U.S. 438, 453 (1972); Roe, 410 U.S. at 129.

10. Roe, 410 U.S. at 154.

11. The Roe Court held that during the first trimester, the state could not interfere with a pregnant

person’s right to choose to terminate a pregnancy. Id. at 164. During the second trimester, state

regulations “reasonably related to maternal health” were permissible, but the state still could not prohibit

a individual from obtaining an abortion. Id. Once the fetus reached viability at the end of the second

trimester, the state’s interest in the potential human life permitted outlawing abortions except when the

abortion was necessary to preserve the life or health of the pregnant individual. Id. at 164–65.

12. See id. at 164–65.

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With the Court’s decision in Dobbs returning the power to regulate abortion to

the states, previous federal cases regarding abortion are no longer good law.

13

However, federal legislation, such as the Hyde Amendment and the Partial Birth

Abortion Ban Act (PBABA), will remain in effect.

14

The Hyde Amendment, which, before Dobbs was the greatest barrier to abor-

tion access, limits the use of Medicaid funds to reimburse the cost of abortion

care.

15

The Court upheld the Hyde Amendment as constitutional in Harris v.

McCrae.

16

In 2003, Congress passed the PBABA, which prohibits the intentional perform-

ance of partial-birth abortions that are not necessary to save the life of the preg-

nant person.

17

The Supreme Court found the PBABA constitutional, with Justice

Kennedy writing for the majority, in Gonzales v. Carhart.

18

The Court relied on

the government’s ability to restrict abortions once the fetus obtains viability, as

well as the government’s interest in the life of the fetus.

19

The government’s

“legitimate and substantial interest in preserving and promoting fetal life” was

elucidated in Casey: the government had an interest in distinguishing between the

potential undue burden on a pregnant person’s ability to have an abortion and

the State’s interest in expressing profound respect for the life of the unborn.

20

The

Court’s primary focus in upholding the PBABA was on the state’s interest in pro-

tecting the potential life of the fetus. Today, the PBABA is valid law and prohib-

its dilation and extraction (D&X) abortions.

21

As of 2022, abortion is no longer a constitutional right.

22

It is now up to the

states to decide whether to protect the right to abortion.

23

III. OVERTURNING ROE V. WADE

When the Supreme Court overturned Roe, it did not outlaw abortion; instead,

the Dobbs decision allows states to determine the legality of abortion proce-

dures.

24

The Dobbs Court upheld a Mississippi law banning abortion after fifteen

weeks of pregnancy.

25

After the Dobbs opinion leaked, certain states announced

plans to outlaw abortion by passing trigger laws, which would come into effect

13. Dobbs, 142 S. Ct. at 2243.

14. See id. at 2280–81.

15. Hyde Amendment, Pub. L. No. 94–439, § 209, 90 Stat. 1418, 1434 (1976); see also Further

Consol. Appropriations Act of 2020, Pub. L. No. 116–94, 133 Stat. 2534, 2579 (2019).

16. Harris v. McRae, 448 U.S. 297, 326 (1980).

17. See Act of Nov. 5, 2003, Pub. L. No. 108–105, 117 Stat. 1206 (codified at 18 U.S.C.A. § 1531

(a)).

18. Gonzales v. Carhart, 550 U.S. 124, 147 (2007).

19. Id. at 145–46 (quoting Casey, 505 U.S. at 846).

20. Id.

21. 18 U.S.C. § 1531(a).

22. Dobbs, 142 S. Ct. at 2242.

23. Id. at 2243.

24. Id.

25. Id. at 2284.

2023] ABORTION 203