A Look at Abortion Legislation from the Early Twentieth Century to the Recent Ruling in Louisiana

On Thursday, February 7, the Supreme Court blocked a Louisiana law enacted in 2014 from going into effect. The 2014 law would have required doctors performing abortions to have admitting privileges at nearby hospitals, which would have potentially reduced the number of doctors in the state who can perform abortions legally to one.

In 2017, Judge John W. deGravelles of the Federal District Court of Baton Rouge struck down the law for placing an undue burden on women seeking abortions, in accordance with their constitutional right to do so, on the grounds that it is often unreasonably difficult for doctors to gain admitting privileges. This decision was overruled by a federal appeals court, and the District Court refused to rehear the case, leading doctors and clinics opposing the law to file an emergency application to the Supreme Court to block the law while they pursued an appeal.

The 2014 law is yet another restriction passed in the last decade as part of a long fight over abortion rights that started in the early twentieth century. Though illegal at the time, abortions were available throughout the early twentieth century in larger American cities. Performers of these clandestine procedures were prosecuted only when the woman seeking the abortion died. Anti-abortion laws were enforced more strictly in the 1940s and 1950s, causing the procedure to become less available, more expensive, and riskier. In the 1960s, growing concern about the dangers of illegal abortions ushered in a wave of legislative reform championed by second-wave feminists. In 1962, the American Law Institute’s Model Penal Code, a text designed to help legislators update and standardize American penal law, proposed that abortion should be punishable as a felony, but noted that physicians could perform them legally in the scenarios in which any one of the three following conditions had been met: first, if the birth would result in severe physical or mental health issues for the mother; second, if the child would be born with a debilitating physical or mental defect; or third, if the pregnancy resulted from rape, incest, or another form of felonious incest.

Between 1962 and 1973, nineteen states reformed their abortion laws to follow the guidelines set forth in the American Law Institute’s Model Penal Code to varying degrees. One of the states that incorporated these standards into state law was Georgia. However, the state also required women seeking abortions to be residents of the state and to gain approval from at least three licensed physicians prior to the procedure. In the late 1960s, a woman under the pseudonym Mary Doe sued Arthur Bolton, Attorney General of her Georgia district, on the grounds that the law violated her constitutional rights to privacy and personal liberty. In 1971, the Supreme Court unanimously declared the portion of the state law that specifies the scenarios in which one may seek an abortion to be unconstitutional, but upheld the medical approval and residency requirements. It was the success of Doe v. Bolton that set the grounds for the most far-reaching Supreme Court ruling on abortion, Roe v. Wade.

In 1970, a woman under the pseudonym Jane Roe sued Henry Wade, District Attorney of Dallas County, Texas, on the grounds that limiting the ability to terminate a pregnancy in any scenario is a violation of the constitutional right to personal liberty and privacy. In his 1973 opinion, Associate Justice Blackmun noted that only a “compelling state interest” justifies regulations limiting “fundamental rights” (such as privacy) and that legislators must “express only the legitimate state interests at stake” in drafting legislature. The ruling allowed states to regulate abortion only beginning at the point at which the fetus could survive outside the mother’s body, around the end of the first trimester.

Many challenges have narrowed the scope of Roe v. Wade since 1973, but the decision has yet to be overturned. In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), the Supreme Court established that restrictions on abortion are unconstitutional if they place an “undue burden” on a woman seeking an abortion before the end of the first trimester. In Gonzales v. Carhart (2007), the Court upheld the federal Partial-Birth Abortion Ban Act (2003), which prohibited a procedure known as intact dilation and evacuation. In Whole Woman’s Health v. Hellerstedt (2016), citing its decision regarding “undue burdens” in Casey, the Court struck down two provisions of a Texas law that had required abortion clinics to meet the standards of outpatient surgical centers and abortion doctors to have admitting privileges at a nearby hospital.

The abortion debate has only been heating up for the past ten years. In the Supreme Court, stance on Roe v. Wade has become an important consideration in judicial nomination. The debate has also gained significant traction in the political realm since the 2010 midterm elections introduced a large contingent of pro-life Republican legislators to Congress. States adopted 401 abortion restrictions between 2011 and 2017, accounting for 34 percent of the 1,193 abortion restrictions enacted by states since Roe v. Wade. In 2015 alone, 396 restrictions were introduced, with fifty-seven being enacted, providing a sense of the scale at which restrictions have been introduced. The following chart from the Guttmacher Institute captures the scope of this increase:

These restrictions generally accomplished the following: set physician and hospital requirements, gestational limits, and waiting periods; limited “partial-birth” abortions, public funding, and coverage by private insurance; required state-mandated counseling on the risks of abortion and parental involvement; and allowed healthcare providers to refuse to participate in abortion. Yet, in 2017, twenty-one states enacted fifty-eight new measures to support reproductive health- a sharp increase from the twenty-eight enacted the year before. Of the fifty-eight, twelve protect abortion.

While restrictive abortion measures tend to be supported by Republican legislators and protective ones by Democratic legislators, the public is not as strictly divided along party lines; the plurality of Americans tend to take the “pro-choice” position over the “pro-life” one. There is a fairly large contingent of Republicans who support abortion rights, and there is a smaller, but still significant, group of Democrats who oppose abortion rights. The contrast between popular support and the partisan nature of recent legislative action can be traced to party coalitions, with each party having a bloc that largely dictates how the party handles the issue (conservative Christians among Republicans, women’s rights activists among Democrats). Because of the power those blocs have, stance on abortion has become a cornerstone of party identity, even if its voters do not share that stance entirely.

The fact that abortion has become such a partisan issue may explain Chief Justice John Roberts’s uncharacteristic liberal ruling in the Louisiana case. Through the 2016 term, Justice Roberts had issued conservative rulings in 82.4 percent of closely divided cases, making him a more consistent conservative vote than every justice other than Justice Alito. This may lead one to predict, with good reason, that he would have come down with the other conservative justices in the Louisiana case, which is why his siding with the more liberal judges came as a shock to many.

Still, this decision is not totally out of character for the justice. For the first time in history, the Supreme Court has become deeply divided along partisan lines. Critiques of today’s Supreme Court argue that it was never meant to be the political machine it is today, leading some to lose faith in the authority of the judicial branch. But Justice Roberts has been a longstanding defendant of the Supreme Court as a nonpartisan power. By siding with the more liberal justices in the Louisiana case, Justice Roberts demonstrates that the Court can put aside partisan divides to settle matters of importance.

Some are calling John Roberts the new Justice Anthony Kennedy or the new swing vote on the Supreme Court. It is likely, however, that Justice Roberts will uphold his conservative track record on future close and highly divisive cases; Robert’s vote in the Louisiana case is probably not indicative of a similarly liberal one in the eventual effort to overturn Roe v. Wade. Furthermore, his ruling has placed further pressure on abortion as hot-button issue in the 2020 presidential elections. One thing is clear from this ruling and the growing number of abortion-related state legislation: the abortion debate will only continue to grow in intensity and political weight in the coming years.