The article ‘Legality of abortion in USA’ is written by Nilanjana Banerjee and discusses the struggles faced by women in getting abortions, the restrictions on abortion and the landmark cases concerning abortion in the US and its present status. I. Introduction Every individual has the right over their own body and women have this additional right to express… Read More »

The article ‘Legality of abortion in USA’ is written by Nilanjana Banerjee and discusses the struggles faced by women in getting abortions, the restrictions on abortion and the landmark cases concerning abortion in the US and its present status. I. Introduction Every individual has the right over their own body and women have this additional right to express the desire of wanting to embrace motherhood or not. But this right was not recognised and irrespective of her wishes, she...

The article ‘Legality of abortion in USA’ is written by Nilanjana Banerjee and discusses the struggles faced by women in getting abortions, the restrictions on abortion and the landmark cases concerning abortion in the US and its present status.

I. Introduction

Every individual has the right over their own body and women have this additional right to express the desire of wanting to embrace motherhood or not. But this right was not recognised and irrespective of her wishes, she was forced to be the child-bearer. Additionally, the complications involved or her health issues were not paid adequate heed.

Thus, there was a lot of struggle by women activists who wanted abortion to be legalised. Illegal abortion created several problems for women who conceived due to sexual assault or rape or for women who had complications affecting their health.

It was during the second wave of feminism, that the Supreme Court in the case of Roe v. Wade, legalised abortion (but with certain restrictions). Despite legalising abortion, there were societal issues that had to be overcome.

II. Abortion

Abortion is the procedure to terminate a pregnancy, either by medicine or by surgery. There has been a lot of debate concerning whether abortion should be made legal.

Originally abortion was considered legal before quickening i.e. the point when the person feels the foetus moves. Back then the medical science was well developed, thus the risk associated with the process of abortion was higher. But by mid 19th century, most states started formulating laws to ban abortion as poison control measures as certain chemicals came to be very widely used as abortifacients.

But despite the legal restrictions, abortion was going on surreptitiously. Finding such doctors who provided safe abortions was a difficult task as not every doctor provided such services and thus there were cases of self-abortion due to which there were a number of deaths. After decades of conflict and debates, finally, abortion was made legal in Roe v. Wade ruling.

III. Why should abortion be allowed?

Abortion is the procedure to terminate the pregnancy and there can be several reasons for doing so. Firstly, in cases where medical reasons like growing complications affect the health of women or in case if the woman does not wish to embrace motherhood.

Secondly, in cases where pregnancy might have resulted from rape or sexual assault. In such cases, the woman might wish to terminate the pregnancy.

Thirdly, every human has the right to live with dignity and to express oneself and one’s desire. Therefore a woman should have the liberty to express her desire, whether to terminate the pregnancy or continue with it. Hence abortion should be made legal as it will protect the interests of women and uphold the freedom of expression.

IV. Overview of the struggle

Abortion was already made illegal in mid 19th century but it was during this time when the movement advocating ‘voluntary motherhood’ was rising along with other women movements. This ban on abortion was due to several reasons like controlling women, their movements; then due to racism and white supremacy, white doctors targeted the black midwives to get control over their profession.

Another reason was declining birth in white Protestants and increased immigration of Catholics. There was a fear among Protestants that their community might turn minority. So, they banned abortion to increase the White Protestant population.

Despite these legal bans, many people continued to do abortion though clandestinely but finding a safe and secure place to get an abortion was dependent on the economic conditions of women. Those who could not pay used dangerous methods for abortion and there were a huge number of deaths.

In the 1960s, the Clergy Consultation Service on Abortion was set up. It was a network of people who helped women find safer places for illegal abortion. Thereafter in 1969, Chicago Women’s Liberation Union formed a group of laywomen called ‘Abortion Counselling Service’, to create an underground feminist abortion service which provided inexpensive, safe and supportive legal abortion.

Inspired by the Civil rights and anti-war movements, the women activists started a women liberation movement and reproductive rights were the main issue. Women spoke openly about their experiences with illegal abortion and made visible the risks they had to take for abortion and demanded the legalization of abortion.

V. Changes in law

Efforts were made to change the laws and gradually the effects of such efforts were seen. Between 1967 to1973, 14 states reformed their abortion laws and four among them repealed the restrictive abortion laws, including access to abortion in emergence circumstances. New York legalised abortion in 1970 and became the first state in the US to do so. It allowed abortion till the 24th week of pregnancy. Then, Hawaii, Alaska, Washington DC followed the path in legalising abortion.

Then came the 1973 landmark judgement in the case of Roe v. Wade[1]. In this case, the US Supreme Court ruled that people have the right to privacy as bestowed by 14th Amendment. In this case, Roe demanded the absolute right to abortion, but the court did not accept that. Instead, the court had put some restrictions on it. Justice Harry A. Blackmun said that the statute criminalizing abortion was violative of women’s right to privacy.

Dividing the pregnancy into three trimesters, the court left the decision of abortion (in first trimester) on the pregnant women and medical professionals. For the second trimester, the state may regulate abortion based on maternal health. And for the third trimester, the court may prohibit abortion except for emergency situations. There were mixed reactions to this judgement.

But the situation after this judgement was not a very easy one as there were several cases that came up and the wide scope laid down by Roe v. Wade was narrowed down. From 1973 to 1992, innumerable cases came up and almost all the states put up restrictive abortion laws.

VI. Aftermath of Roe v. Wade

In 1979, came up the case of Belloti v. Baird[2], where parental consent for abortion was an issue. The court said that parental consent is a must for the abortion of a minor girl or, the girl could petition a judge to seek permission for abortion (without notifying parents). In such a case, the young girl has to show that she is mature enough to take the decision and has decided so in her best interest.

The Medicaid funding, a program by federal and individual states which covered abortion care as a part of the comprehensive health care program for lower-income women, was also blocked by the court. This funding was restricted only to limited cases by the 1976 Hyde Amendment and thereafter completely banned the funding. Many lower-income women were dependant on the funding, who had to undergo risky abortions. In October 1977, Rosie Jimenez, a lady having an abortion in Mexico did because she could cover the cost.

Thereafter the validity of Hyde amendment was challenged, however, the court upheld it in the case of Harris v. Mc Rae[3]. The court ruled that Hyde amendment and the subsequent ban on funding did not violate women’s constitutional rights.

In Planned Parenthood v. Cassey[4] the court considered Pennsylvania’s highly restrictive laws which required a 24hour waiting period, parental consent, spousal consent and several other burdensome requirements. The court abandoned the trimester criteria and set out a new test, the court allowed only those restrictions which did not place an undue burden on the woman seeking an abortion and defined an undue burden as those restrictions which act as a substantial obstacle in the path of a woman seeking an abortion.

After this, the legislature began passing more and more restrictive laws and one of them was challenged in court. In 2000 came up the case of Stenberg v. Carhart[5] where Nebraska statute was brought in question. It prohibited two different types of abortion and evacuation and the court struck down this law stating that if any method of abortion is safer then the state cannot ban it explicitly.

A few years later, Congress passed a very identical law which was challenged in 2007 in Gonzales v. Carhart[6]. Supreme Court overruled the former Stenberg judgement and upheld the validity of the act.

The dissenting opinion was given by Justice Ruth Bader Ginsburg-

“Today’s decision is alarming… It tolerates, indeed applauds, federal intervention to ban nationwide procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynaecologist (ACOG). And for the first times since Roe, the court blesses a prohibition with no exception safeguarding a women’ health”[7].

From 1973 onwards, more than 1000 restrictive legislation had been passed and put in unnecessary requirements for the doctors, called TRAP laws i.e. Targeted Regulations of Abortion Providers. These were clothed under the name of safer abortion practices, but practically none of them served such purpose.

The TRAP laws were challenged several times but it reached Supreme Court only in 2016 in the case of Whole Women’s Health v. Hellerstedt[8] It challenged two provisions of Texas Law. The court held that such laws put an undue burden on the providers of such services and restricts the access to abortion. Despite these, Texas Law still tried to justify the provisions on grounds that they are important for safety.

In 2019, around seven states passed laws banning abortion either absolutely or during 6th to 8th week of gestation and proposed a ‘foetal heartbeat bill’ as per which abortion is banned after the doctor can detect the embryonic cardiac activity. Alabama voted for an absolute ban on abortion leaving no exception for rapes and incest.

In 2020, in June Medical Services LLC v. Russo, the court invoked the 2016 judgement of Whole Women’s health and banned Louisiana Abortion Act (which was similar to the Texas law).

During the covid-19 lockdown, the unessential services have been stopped and the anti-abortion activists have taken the opportunity to put restrictions on abortion. People are now turning to medical abortion and telehealth to increase their security and privacy while the abortion process is going on.

VII. Conclusion

Getting the right to abort was an assiduous task with a lot of chaos and risks which women had to undergo. Even after the Supreme Court’s decision of Roe v. Wade, there were several legislations which restricted the path to an abortion.

Despite the restrictive law, abortion was going on secretively and individual states kept passing laws to restrict or ban abortion. The court at times upheld them while declaring them unconstitutional other times. In this way, the struggle kept going on. The lockdown has added to the problem and women are now opting for telehealth to keep things safer for them.


References

[1] 410 U.S. 113 (1973).

[2] 443 U.S. 622 (1979).

[3] 448 U.S. 297.

[4] 505 U.S. 833 (1992).

[5] 530 U.S. 914.

[6] 550 U.S. 124 (2007).

[7]Id.

[8] 579 U.S. (2016).


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Updated On 2021-08-30T11:21:21+05:30
Nilanjana Banerjee

Nilanjana Banerjee

National University of Study and Research in Law Ranchi

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