The Decades Long Struggle to Define a Woman's Right to Choose

 /  Dec. 17, 2021, 12:32 p.m.

abortion protest
A pro-choice rally in St. Paul, Minnesota (2019)

November 1 marked the first day of oral arguments in United States v. Texas in front of the Supreme Court. It was remarkably reminiscent of a day nearly fifty years ago, when women waited with bated breath for the landmark ruling that would, for most intents and purposes, legalize abortion. The core decision of this famous case, Roe v. Wade, has largely stood the test of time, though many abortion cases have chipped away at and reformed the original mandate in the years since 1973. Each time, the Court is forced to walk the fine line between judicial activism and legislative intent, while remaining specific enough that it does not place undue burden on the women or doctors involved. The precedent of specificity in deciding such cases was born out of necessity, as the early 70s presented the Court with a battlefield they had not seen before—a woman’s uterus. 

1970s: The Precedent is Set

It was 1969 when Norma McCorvey found herself pregnant for the third time. A young Texan waitress from an impoverished family, she had experienced a difficult upbringing and had been drifting for some time between odd jobs at bars, one unsuccessful marriage at 16, and two prior baby girls whom she had carried to full term and given up. At the time, abortions were only legal in Texas when the mother’s life was at risk, which was not the case for McCorvey. She was desperate to get an abortion but did not have the means to travel to a state where it would be available to her. The other daunting option was an illegal abortion, which had become popular in the underground world of the decades prior; the Guttmacher Institute estimates that between 200,000 and 1.2 million were performed each year, but the process could be dangerous. Instead, McCorvey sought out a legal route to obtaining an abortion in her home state and was referred to attorneys Linda Coffee and Sarah Weddington. They filed a petition and formed an argument for their client centered on the common understanding of a right to privacy, making it their mission to prove that such a right was provided for in the Constitution. The petitioner was listed as Jane Roe in an effort to protect her true identity. The defendant was named Henry Wade, the district attorney in McCorvey’s home in Dallas County. 

At the same time, Sandra Bensing, a young Georgian woman not too unlike Norma McCorvey, found herself applying for abortion priveleges at an Atlanta hospital. Bensing had led a tumultuous life herself, having spent time in a psychiatric hospital, losing her first two children to the foster system after being deemed an unfit parent, and giving up her third child to another family. Georgia law at the time only allowed for abortions in cases where the mother had been raped, the mother’s life was in danger, or when the fetus was expected to be seriously malformed, none of which applied to Bensing. It also further required the pregnant woman to obtain approvals from a personal physician, two consulting physicians, and a hospital committee. Although Bensing was able to receive an abortion at a private hospital, she filed a case challenging the constitutionality of the state law, naming Georgia Attorney General Arthur K. Bolton as the opposing party and taking on the pseudonym “Mary Doe.” 

The Supreme Court is in the majority of civil cases an appellate court, so both Roe and Doe had to be argued and decided at the district court level prior to their hearings before the Supreme Court. In the instance of Norma McCorvey and lawyers Coffee and Weddington, the US District Court for the Northern District of Texas decided in their favor, ruling that the Texas law violated the privacy of the mother under the Ninth Amendment. This amendment provides that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”, which the district court interpreted to mean that Americans retain the right to make decisions within their personal sphere. Texas appealed this decision to the Supreme Court. Doe followed a similar path:a district court in Georgia decided that the plaintiff’s privacy was restricted by the limited number of reasons for which the state would justify an abortion, though it maintained that the state had relevant interest in the protection of health that gave them the right to legislate abortions. Bensing appealed the decision to the Supreme Court, claiming entitlement to a broader relief.  

In a decision that would define the next half-century of abortion, the Supreme Court ruled both the Texas and Georgia statutes unconstitutional in a resounding 7-2 vote. The decision balanced what the court saw as the two key factors—the state’s interest in protecting the health of its people and the woman’s right to privacy—by creating separate guidelines for each of the 12-week trimesters. In the first trimester, a state could not regulate abortion beyond requiring a medically safe conditions. In the second trimester, a state could regulate abortion only to the extent that it is related to protecting the health of the pregnant woman. In the final trimester, the Court found that the state’s interests in protecting potential life outweighed the rights to privacy and the state could litigate as it saw fit. The decision was founded on the Due Process Clause of the Fourteenth Amendment, which reads: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The Court found that this clause primarily, along with supporting evidence in the First, Third, Fourth, and Ninth Amendments, laid the basis for a protected right to privacy in the Constitution. 

1980s and 90s: Limitations and Addendums to Roe 

Throughout the remainder of the 70s and the greater part of the 80s, the Supreme Court continued to uphold the principles of the Roe and Doe decisions in their entirety, striking down bans on clinic advertising and overturning state laws requiring a guardian’s consent for a minor’s abortion. It seemed as though the legal right to an abortion had been set in stone, though abortions remained a key talking point for leaders in the religious right. The tides began to turn suddenly in the late 80s as the Supreme Court became decidedly more conservative with three appointments by President Ronald Reagan. As the national political conversation turned to “family values” Republicanism in the Reagan Era, abortion once again took the center stage. 

The first major challenge came in the form of Webster v. Reproductive Health Services in 1989. The case was centered on a Missouri law that prohibited the use of public facilities or funds to provide abortion counseling or services and placed the burden on physcians to report the unborn child's gestational age, weight, and lung maturity and determine viability. A group of affected doctors challenged the law in July of 1986, filing the case against Missouri Attorney General William L. Webster. The district court decided with the plaintiffs on multiple counts, agreeing that sections of the Missouri law were unconstitutional. On appeal by Webster, however, the Supreme Court ruled in a 5-4 decision that the Missouri law was constitutional as it stood. The majority decision went on to criticize the original decision in Roe, citing one of the biggest arguments against the case: the trimester framework was too specific and crossed the boundary between judicial activism and legislating. They also disagreed with the use of fetal viability as a turning point in the timeline, stating: “We do not see why the state's interest in protecting potential human life should come into existence only at the point of viability, and that there should therefore be a rigid line allowing state regulation after viability but prohibiting it before viability”.

The strategy in the fight against abortion rights had then been established in anti-abortion legislation throughout the 80s: make it so difficult to obtain an abortion that the standing decision in Roe lacked practical value to American women. The tactic of limiting access to funding for abortion promotion and related services began with Rust v. Sullivan, which was decided in 1991 and turned the fight into a First Amendment issue of free speech. It began with Title X of the Public Health Service Act, which focused on federal funding for family planning. The act provided that none of the funds may be directed towards abortion counseling or referreal, and a suit was quickly filed by several grant recipients and doctors. Both the district court and the court of appeals granted a summary judgement favoring the government, arguing that the law did not burden a woman’s right to an abortion beyond reason. The key questions of the case became whether a government’s decision not to subsidize an activity infringed on the right to the activity and whether a lack of funding could further be considered a penalty on that activity. The Supreme Court upheld the original decisions and affirmed that the act was a violation of neither the First Amendment nor the Due Process Clause of the Fifth Amendment, which helps construct a right to privacy. The conservative Chief Justice Rehnquist (who had dissented in Roe v. Wade) justified the court’s decision, saying “When Congress established a National Endowment for Democracy to encourage other countries to adopt democratic principles, it was not constitutionally required to fund a program to encourage competing lines of political philosophy such as Communism and Fascism.” The original ruling was thus further eroded as states were able to successfully limit access to abortions. 

Perhaps the most defining case of this era of changing tides was Planned Parenthood of Southeastern Pennsylvania v. Casey, which was decided only a year after Rust in 1992. At issue were five sections of the Pennsylvania Abortion Control Act, which required a woman’s informed consent at least 24 hours prior to the procedure, informed consent from a parent if the patient was a minor, and confirmation that  the husband was notified if the patient was married. It also defined a medical emergency in which aforementioned steps could be skipped and mandated reporting requirements for abortion facilities. A team of abortion clinics and independent doctors brought the suit on the grounds that each of these sections were unconstitutional in their language. The District Court found all of the provisions to be unconstitutional, but upon appeal, the Court of Appeals reversed the original decision in all cases but the third, which required a married woman’s signature certifying that she had informed her husband in advance of the procedure. Upon further appeal, the Supreme Court found the spousal notification requirement was an undue burden, though the remaining provisions were ruled constitutional because of the state’s vested interest in the health of its citizens. The Court thus maintained the fundamental rights established by Roe and Doe but rejected the trimester system, instead replacing it with the “undue burden” test, which persists to this day as the methodology of evaluating abortion-related cases. 

2000s: The Carhart Cases

The 2000s cases for abortion in the Supreme Court were defined by the two Carhart cases, which established and subsequently dismantled a precedent regarding partial birth abortions, a procedure wherein a physician is “intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the [abortionist] knows will kill the … child and does kill the … child”. Nebraska passed a law prohibiting any partial birth abortions with steep consequences: violations qualified as felonies and resulted in an automatic revocation of a convicted doctor’s license to practice. The District Court and the Eighth Circuit sided with Carhart, a Nebraska physician who brought the suit, in ruling the law unconstitutional. The Supreme Court affirmed this decision in 2000, citing the lack of a clause in the law protecting the pregnant woman’s health. The Court further argued in their decision that the law left open for interpretation whether it could be applied to other forms of abortion, in which case it would violate the rights to privacy established in the 70s. 

Just seven years after the first decision, Carhart II reached the Supreme Court docket following the passage of a 2003 law called the Partial-Birth Abortion Ban Act in the U.S. Congress. The petitioners argued that the language of the act would make it applicable in both a more common “dilation and evacuation” (D&E) abortion procedure as well as the lesss common “dilation and extraction” (D&X) procedure. The plaintiff’s argument hinged on the fact that the act could then effectively be construed as a ban on most late-term abortions and would then be placing an undue burden on the right to an abortion. A federal District Court and the Eighth Circuit Court subsequently ruled that the act was unconstitutional. Upon appeal, the Supreme Court was confronted with the key question of whether the act was a violation of personal liberty because of the lack of an exception protecting the health of the mother. In a surprise ruling, the Court held in a close vote that the ban on partial-birth abortions was not unconstitutional and did not place an undue burden on the right to an abortion. 

2010s and 20s: Abortion on the Court Docket Today

Upholding the Partial-Birth Abortion Ban Act marked a new era in the Court, and state legislatures grew bolder in their attacks on abortion rights. Conservative states began passing  “heartbeat bills,” laws that ban abortions as soon as the embryo’s cardiac activity can first be detected by an ultrasound, at around six weeks gestation. However, many women are not even aware that they are pregnant until they have an abnormal menstrual cycle, leaving them with only two weeks in the best case scenario to make a decision on keeping their pregnancy. Under the Trump presidency, Alabama, Georgia, Kentucky, Louisiana, Mississippi, Missouri and Ohio all passed copycat heartbeat bills. At the same time, the Supreme Court was undergoing a large change as Justices Kennedy retired and Justices Scalia and Ginsburg passed away, to be replaced with conservative justices Gorsuch, Kavanaugh, and Barrett. The position of family values Republicanism was once again growing important, even as the presidency passed into the hands of Democrat President Biden. 

This brings us to November 1, 2021, when US v. Texas was first argued before the Supreme Court. At first glance, Texas law SB 8, also known as the Texas Heartbeat Act, is yet another copycat heartbeat bill, but it takes further action to deputize the average citizen. The law allows private citizens to bring civil suits against anyone who helps a woman get an abortion, from physicians to drivers, and to collect at least $10,000 in damages if they prevail in court. Public backlash was extreme on both ends: the issue quickly trended on national news sources and social media and liberal activists began flooding the tip website with false allegations to overwhelm the service. In response to popular opinion, major ride-sharing companies Uber and Lyft committed to covering the entirety of the legal fees for any drivers who are implicated under the new law. In a 5-4 vote in early September, the Supreme Court formally denied a request from Texas abortion providers to place a freeze on the Texas Heartbeat Act. The dissenters were the three remaining liberal justices and Chief Justice John Roberts. 

Concurrently, the Department of Justice filed a suit against the state, arguing that the law violates both the Supremacy Clause (which gives federal law precedence over state laws) and the Fourteenth Amendment (which includes the Due Process Clause in which the Roe v. Wade's decision was rooted). Attorney General Merrick Garland commented, “The Act is clearly unconstitutional under longstanding Supreme Court precedent. The United States has the authority and responsibility to ensure that no state can deprive individuals of their constitutional rights through a legislative scheme specifically designed to prevent the vindication of those rights.” 

The case was first decided by U.S. District Court Judge Robert Pitman, who took a strong stance in favor of the federal government. In his remarkable 113-page decision, he stated “A person's right under the Constitution to choose to obtain an abortion prior to fetal viability is well established," he wrote. "Fully aware that depriving its citizens of this right by direct state action would be flagrantly unconstitutional, the State contrived an unprecedented and transparent statutory scheme to do just that.” The Circuit Court Judge disagreed on appeal, blocking Pitman’s injunction. The question of enforcement was then immediately appealed to the Supreme Court, who allowed the lawsuit brought by abortion providers to proceed but let SB 8 remain in effect for the time being. Though the Court avoided expressing an opinion on the law’s constitutionality, it will likely fall to them to make the final decision. If the law is allowed to stand as written, it will represent a drastic change in the Court’s policy on abortions. Women across states with more stringent abortion laws will be forced to reach their decision quickly or face risky illegal procedures or expensive trips out of state. It will establish a new precedent that will once again open the door to questions about the legal limits of the right to privacy.

The image used in this article is license under the Creative Commons Attribution-ShareAlike 2.0 Generic license. The original image, which has not been altered, was authored by Lorie Shaull and can be found here.

Niharika Iyer


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