Questions of Law

On January 22, 1973 the United States Supreme Court rulings Roe v. Wade and Doe v. Bolton struck down as unconstitutional all existing laws restricting abortion. See below for details on these two cases.

However, it should be noted that in the 2022 case Dobbs v. Jackson Women’s Health Organization, the Supreme Court overturned its prior Roe and Doe rulings.

In the 1973 Roe v. Wade decision, the Supreme Court of the United States ruled 7-2 that the Fourteenth Amendment of the U.S. Constitution, which protects the rights to life, liberty and property, entailed a “right to privacy” that included the right for a woman to procure an abortion up until “the point at which the fetus becomes ‘viable’.”

Roe effectively overturned all existing state laws against abortion. While it did allow for some limitations on when abortions could be obtained, these limitations were effectively nullified in Roe‘s companion case, Doe v. Bolton.

In Doe, the court ruled 7-2 that abortion for “the health of the mother” could not be restricted, while adopting a very broad definition of “health” that included such factors as the woman’s emotional well-being and age. Doe effectively made abortion legal at any point, for almost any reason.

Both Roe and Doe were overturned in the United States Supreme Court’s 2022 ruling in Dobbs v. Jackson Women’s Health Organization.

See also What did Dobbs v. Jackson decide?

Dating back to British common law, the historical foundation of American law, abortion was illegal after “quickening”, when the mother could feel the baby begin to move. As early as 1871 the American Medical Association condemned abortion as “wholesale destruction of unborn infants.” By 1900, abortion was illegal throughout the United States through all nine months of pregnancy.

Throughout the 19th and 20th centuries, individual states regulated abortion, with penalties typically imposed on the abortionists. In the 1960’s, in the midst of the sexual revolution and more widespread use of contraception, some sociologists and legal scholars proposed that abortion laws be liberalized to allow exceptions for rape, incest and other reasons never before considered to justify abortion.

Colorado legalized abortion for rape, incest, significant fetal anomaly or threat to the mother’s health in 1967. In 1970, New York passed the country’s most permissive abortion law, allowing abortion up to 24 weeks for any reason. By the time of Roe v. Wade, thirteen states had passed laws similar to Colorado’s. Most states allowed abortion only in cases where a woman’s life was said to be in danger. 

All of these state laws on abortion were rendered moot by the Supreme Court’s Roe v. Wade and Doe v. Bolton decisions in 1973. 

See also What did Roe v. Wade and Doe v. Bolton decide?

On June 24, 2022, the United States Supreme Court issued its ruling in the Dobbs v. Jackson Women’s Health Organization case. By a vote of 6-3, the court upheld Mississippi’s Gestational Age Act, which had banned abortion after 15 weeks with limited exceptions. The court further ruled by a 5-4 vote to overturn its previous rulings in Roe v. Wade and Doe v. Bolton, declaring those cases were wrongly decided. The majority found no basis in the U.S. Constitution or the legislative history of the nation for a right to abortion. They also rejected the “undue burden” standard established in their 1992 ruling in Planned Parenthood of Southeastern Pennsylvania v. Casey, which had allowed some abortion restrictions to be enacted post-viability.

Dobbs restored the right of the American people to deliberate and establish abortion policy through the democratic process.

See also What is the legal status of abortion in the United States?, What did Roe v. Wade and Doe v. Bolton decide?, What legal restrictions on abortion have states enacted?, and At what point in pregnancy does the fetus become viable?

The United States Supreme Court’s 2022 ruling in Dobbs v. Jackson had a profound impact on abortion policy in the U.S., varying widely from state to state.

In some states, pre-Roe abortion restrictions were still on the books, and could once again be enforced after Dobbs overturned Roe — though these laws were challenged in state courts by abortion advocates. In other states, “trigger laws” had been enacted before Dobbs to ban or limit abortion, should Roe ever be overturned. These measures have likewise been challenged in the courts.

In yet other states, various abortion limits have been established since Dobbs returned the abortion issue to the people and their elected representatives — once again with legal challenges.

At the other end of the spectrum, some states have responded to the Dobbs ruling by expanding their permissive abortion laws, removing limits like parental involvement measures, increasing taxpayer funding of abortion, and more.

Meanwhile, ballot initiatives in several states have either overturned abortion restrictions or blocked the legislature from enacting them.

See also What legal restrictions on abortion have states enacted? and Do any state restrictions actually reduce abortion?

Several measures have been enacted in various states to restrict abortion both before and after the Dobbs v. Jackson ruling. These measures include:

Abortion Bans with Exceptions: A handful of states have banned nearly all abortions, while allowing limited exceptions. These include exceptions for pregnancies resulting from rape or incest, threats to the health or life of the mother, and cases of severe fetal anomaly.

Gestational Limits: Other states have restricted abortion after the fetus has reached a particular gestational age, starting as early as 6 weeks after the mother’s last menstrual period. These laws all allow abortions in some exceptional cases, such as rape, incest, threats to the health or life of the mother, and severe fetal anomaly.

Late Term Abortion Bans: Many states have restricted abortion after fetal viability or when the fetus can likely feel pain. These limits range from 22 to 25 weeks after the mother’s last menstrual period, and all include exceptions to preserve the health or life of the mother.

Parental Involvement: Parental notification statutes require that one or both parents be notified of their minor daughter’s desire to have an abortion, while parental consent statutes go further and require that one or both parents actually consent to the abortion.

Waiting Periods: Numerous states have enacted waiting periods ranging from one to 24 hours before an abortion can be performed.

Informed Consent: Sometimes known as “Right to Know” laws, informed consent measures require a woman to be provided with important, relevant information before an abortion is performed. This information ranges from offering a woman an ultrasound and thoroughly explaining how the abortion will be performed to merely making pamphlets available that explain the procedure.

Partial Birth Abortion Bans: In addition to a federal law banning partial birth abortion, several states have laws prohibiting the practice.

See also When can a fetus feel pain?, At what point in pregnancy does the fetus become viable?, How is a D&X or “partial birth” abortion performed?, What is “late term” abortion?,  and What is the legal status of abortion in the United States? 

Even before the overturning of Roe v. Wade in 2022, researcher Dr. Michael New had established that certain state measures reduce abortion rates, particularly parental involvement laws and limits on taxpayer funding of abortions. Since then, states have been able to enact far broader abortion limits, the impact of which will take some time to be fully understood. Yet evidence is already mounting that these new laws are significantly reducing abortion rates. This contradicts the claims of some abortion advocates that women will simply circumvent these measures by traveling out of state for abortions or ordering abortion pills by mail. While certainly some women are doing so, the emerging data reveal that many women are instead choosing to carry their pregnancies to term.

See also What legal restrictions on abortion have states enacted?

While there is no national abortion policy in the United States, the laws of some states make the U.S. overall one of the most permissive countries in the world when it comes to abortion. In fact, the U.S. is one of only seven countries — including China and North Korea — that allow elective abortion after 20 weeks. In the vast majority of countries in which elective abortion is legal — including nearly all of Europe — strict nationwide limits are imposed after the 12th week.

See also What is the legal status of abortion in the United States?

The Freedom of Access to Clinic Entrances (FACE) Act was signed into law by President Bill Clinton in 1994. FACE specifically prohibits “the use of force or threat of force or physical obstruction” to intentionally injure, intimidate, or interfere with someone seeking to enter a facility that provides abortions. FACE also prohibits the same actions at places of religious worship, considered by some legal analysts as a bid by the law’s drafters not to appear to be singling out pro-life activity.

The penalty for a first non-violent violation of FACE is up to one year in prison, and a fine of up to $10,000, in addition to civil penalties of $10,000 or more. Subsequent non-violent convictions carry a punishment of up to 18 months in prison and a fine of up to $25,000, in addition to civil penalties. These penalties are far more severe than the penalties already imposed by state law for the acts prohibited by FACE.

Pro-lifers have the same rights as all American citizens under the First Amendment of the United States Constitution to freedom of expression on the public way. This includes the right to pray on a public sidewalk. However, one is not permitted to block the sidewalk in the process of exercising this right.

See also What can I do to witness for life at a local abortion clinic?

As long as one remains on public property and does not block the public right-of-way, it is perfectly legal to talk to a woman going into an abortion facility, to her companion, or to anyone else. It is not permissible to go onto private property in order to communicate, unless specifically invited there by someone with the authority to make the invitation.

The right to free speech is guaranteed by the First Amendment of the U.S. Constitution, and does not depend on the hearer’s permission or interest in hearing the speech.

See also What is “sidewalk counseling” and how can I get involved?

The public display of abortion victim photographs is a form of freedom of expression guaranteed by the First Amendment of the United States Constitution. The fact that a message may be unwelcome to some viewers or listeners does not abrogate the right to proclaim the message.

See also May police put a stop to pro-life activity simply because someone complains? and How do I become a more effective pro-life activist?

A small number of states and municipalities have enacted measures intended to limit the activity of pro-life advocates in the immediate vicinity of abortion facilities. The constitutionality of these laws, commonly known as “bubble zones” or “buffer zones,” has been challenged by pro-life advocates, and some have been struck down by the U.S. Supreme Court.

It should be noted that these kinds of measures are uncommon, but if you live in an area subject to one, contact the Pro-Life Action League at info@prolifeaction.org for guidance on how to keep your pro-life outreach at abortion facilities as effective as possible under your local restrictions.

See also Is it legal to talk to abortion-bound women outside abortion facilities? and What is “sidewalk counseling” and how can I get involved?

If pro-lifers ever feel threatened or in danger due to the actions of any person, they should call the police, for two critical reasons. First, the pro-life activists should not hesitate to protect their own safety. Second, individuals who use force or threaten to use force may be guilty of assault or battery, and if they are not confronted by the police this time, they may feel emboldened to threaten or harm other pro-lifers in the future.

“Assault” is defined as placing a person in reasonable apprehension of being struck or pushed, through words or gestures. “Battery” is the willful or intentional touching of a person against that person’s will by another person, or by an object or substance put in motion by another person. An offensive touching can constitute a battery even if it does not cause injury, and could not reasonably be expected to cause injury.

It is also appropriate to call the police if it is readily apparent that a woman or girl is being coerced to go into the abortion clinic by someone accompanying her.

See also How often are women coerced into getting abortions?

Peaceful, legal exercise of the freedom of speech is not dependent on the attitude or response of those who see or hear the message. Police may receive complaints from the public during a pro-life demonstration, but it is the duty of the police to protect the pro-lifers’ First Amendment rights and to explain these rights to those who are complaining.

There are, however, situations in which the police may be appropriately exercising their duty to protect the safety of the public by restricting to some extent the location of a demonstration or the way in which it is organized. When such “time, place and manner” restrictions are imposed, it must be clear that law enforcement’s duty to ensure public safety overrides the First Amendment rights of the demonstrators. Since this is a judgment call on the part of a police officer, it will necessarily be subjective.

See also Pro-Life Legal Issues 

It is advisable to comply with police directives, even when one is certain those directives violate pro-lifers’ freedom of expression guaranteed by the First Amendment of the United States Constitution. Such violations can be more effectively challenged afterwards in court. Receiving a citation or being arrested adds to the legal difficulty of obtaining justice later.

It is advisable for the organizers of any pro-life demonstration to have on hand the phone number of an attorney who can offer immediate assistance if the pro-lifers encounter a problem with a police officer or department.

The Thomas More Society Pro-Life Law Center specializes in defending the rights of pro-life activists. They can be reached at their offices in Chicago at (312) 782-1680.