.

   Abortion law in the United States emanates from two basic governmental sources: (1) the legislatures of the several states and territories and (2) the United States (i.e., the "federal") Supreme Court. The state legislatures, being responsible for the production of most criminal laws, are the traditional source of abortion regulation. Thus, from the decline of common law (judicially created) crimes in the early 19th century, to the intervention of the United States (federal) Supreme Court in the 1970’s, state legislatures widely criminalized abortion. In 1973, in the landmark case of Roe vs. Wade, the United States Supreme Court ruled that the Fourteenth Amendment to the United States Constitution provided a fundamental right for women to obtain abortions. The Supreme Court held that the "right to privacy," established by the Court’s precedents in the contraception cases of the 1960’s and early 70’s, assured the freedom of a person to abort unless the state had a "compelling interest" in preventing the abortion. The Court then held that, though the state had an interest in protecting fetal life, this interest did not become "compelling" (i.e. adequate to allow banning an abortion) until fetal viability occurred in the third trimester of pregnancy. Thus, all the state abortion laws that regulated abortion during the first six months of pregnancy (except for the purpose of protecting maternal health during the second trimester) were invalidated.

   What this means is that before Roe v. Wade in 1973, the legality of abortion essentially rested with the legislatures of the several states. However, in 1973, the Supreme Court made it an issue of federal constitutional law by holding that abortion was a constitutional right. From then on, whether abortion was legal or not depended on the Supreme Court’s decisions as to how broad the Roe right to abortion actually was. State legislatures continue to have a say only in the little room the Court has left outside the scope of the abortion right.

   However, with Webster in 1989 and Planned Parenthood v. Casey in 1992, the Supreme Court expanded this room, allowing the states that want to regulate abortion substantially more latitude to do so. Since 1992, elective abortions can be banned after actual viability (c. 20-22 weeks), and pre-viability regulations only have to meet the new "undue burden" standard, meaning that a "compelling" state interest is not required so long as the law does not present a "substantial obstacle" to obtaining an abortion.

   The main focus of this Supreme Court litigation is the conflict between various states that want to make laws either protecting women or the unborn, and abortion rights advocates who want as little government restraint upon the abortion option as possible. The state will argue that there is no constitutional right to abortion, or if there is a right that it is not violated by the law the state wants to enforce. The abortion rights advocates argue that Roe v. Wade rightly protected a fundamental human right and that it must not be eroded by politics.

   There are other players, however. The United States Congress can pass at least some abortion regulations--but hardly ever does so. Its legislation is subject to the same constitutional scrutiny as state laws. It must also be remembered that each state has its own state constitution and its set of state constitutional rights. Though these rights cannot operate in derogation of federal constitutional rights, they can provide rights that are not in the federal constitution. Thus, a state supreme court can have its own version of "Roe v. Wade," finding an independent right to abortion in that state’s own constitution.

The Process since 1973.

   Supreme Court cases (like Roe and Casey) generally get started when someone, usually an interested organization (e.g., Planned Parenthood) or someone backed by one, brings a law suit in federal court to enjoin the enforcement of a particular state law, claiming that it violates some provision of the U.S. (federal) Constitution. They sue the state (often through some official, like Dallas District Attorney Henry Wade in Roe v. Wade or Pennsylvania Governor Robert Casey on Planned Parenthood v. Casey). It begins in a U.S. (federal) District Court in the state in question, where one side wins and the other invariably appeals. The case goes on to the U.S. Circuit Court of Appeals (the intermediate appellate court) for the particular federal circuit the state is in. There a panel of judges will "affirm" or "reverse" the decision of the district court below and the loser will petition the United States Supreme Court to hear the case. If the Court refuses then the decision of the circuit court will stand and will be binding law within that circuit. If the Court agrees (by a vote of four) to take the case then the nine-member Court will decide whether it agrees with how the circuit court ruled or not. Whether the Supreme Court strikes down the law or not, its decision as to what the Constitution says will bind every other court in the country, state or federal.

   [N.B. This is not always how it goes--Roe v. Wade, for example, came directly up from the district court, which is very unusual. Some cases come out of a state court system after a party lost in that state’s supreme court. Also, the federal appellate procedures have changed over the years. Very few cases come to the Supreme Court via conventional appeal any more. Most are now brought as petitions for a writ of certiorari, which are purely "discretionary," so that the busy Court can take only those few cases they think are important.]

   [The United States Supreme Court is the final arbiter of so-called "federal issues," which include interpretation of the U.S. Constitution.]

Back to the Abortion Law Homepage