Questions of Law
There are many important legal issues surrounding abortion, and a great deal of misinformation among the public about such issues as what kinds of abortions are allowed by law and what pro-lifers can do to peacefully oppose abortion.
The questions and answers below deal not only with court decisions and laws that outline the conditions under which abortions are performed, but also with the legality of various forms of pro-life activism, and what pro-life activists can do when their rights are restricted
by other citizens or the police.
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.
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 v. Wade effectively overturned all existing state laws against abortion. Roe v. Wade did allow for some limitations on when abortions could be obtained. However, these limitations were effectively nullified by the court’s decision in Roe’s companion case, Doe v. Bolton, outlined below.
Doe v. Bolton challenged a Georgia law which required the approval of multiple physicians, under limited circumstances, for an abortion to take place. The ruling overturned limits on obtaining abortions such as restrictions on what point during a pregnancy an abortion can be obtained, whether one can cross state lines to obtain an abortion and whether a doctor has to approve an abortion.
In Doe v. Bolton, the court ruled that abortion for “the health of the mother” could not be restricted, while adopting a very broad definition of what “may relate to health”, including “all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the wellbeing of the patient”. This effectively made abortion legal through all nine months of pregnancy for almost any reason.
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 decide?
- See also What did Doe v. Bolton decide?
- See also Is abortion ever necessary to save a woman’s life?
Dorland. Dorland’s Illustrated Medical Dictionary. St. Louis: Saunders, 1965.
Lewis, J., and Shimabukuro, Jon O. “Abortion Law Development: A Brief Overview.” Almanac of Policy Issues. January 28, 2001. http://www.policyalmanac.org/culture/archive/crs_abortion_overview.shtml.
Quay, Eugene. Justifiable Abortion: Medical and Legal Foundations. Washington: Family Life Bureau, National Catholic Welfare Conference, 1961.
The real name of the woman anonymously named “Jane Roe” in Roe v. Wade is Norma McCorvey. In her lawsuit, she claimed to have become pregnant as the result of rape and argued that she should therefore be allowed to have an abortion, despite the laws against abortion in her home state of Texas. She gave birth to the child and placed her for adoption before the 1973 ruling legalized abortion. McCorvey worked in the pro-choice movement and for an abortion clinic for several years thereafter.
After publicly identifying herself as Jane Roe, McCorvey became friends with Rev. Flip Benham and other pro-lifers. Her book, Won By Love, recounts how the compassion pro-lifers showed to her brought her into the pro-life movement. McCorvey admitted to the many fabrications in the Roe v. Wade case, including her claim to have been raped. In 2005 she asked the United States Supreme Court to overturn Roe v. Wade on the basis of new evidence showing that abortion hurts women.
Though some have claimed McCorvey may have recanted her pro-life position shortly before her death in 2017, those who knew her testify that she remained a pro-life advocate until the end.
McCorvey, Norma. Won By Love. Nashville: Thomas Nelson, 1998.
The “Mary Doe” in Doe v. Bolton was Sandra Cano. Cano had gone to a free legal clinic seeking help getting a divorce and retrieving her children from foster care. She happened to be pregnant at the time. Without her realizing what they were doing, her lawyers sidelined the issues she wanted help with and instead filed a lawsuit stating that she wanted an abortion. When Cano’s mother and lawyer arranged for her to have an abortion, she fled the state.
Unfortunately Cano did not understand the legal jargon being used in her case. She had no idea that her lawyers were fighting for abortion rights, not for her divorce. Cano has always been and continues to be opposed to abortion. Cano even filed a motion for the Supreme Court to rehear and overturn her case, but in 2006 the Court refused. Her story is chronicled in the book Supreme Deception.
Fletcher Lash, Sybil. Supreme Deception: How an Activist Attorney Manipulated the U.S. Supreme Court and Gave Birth To Partial Birth Abortions. Lawrenceville: Sentinel Productions, 2002.
If the Supreme Court were to overturn Roe v. Wade, it would not mean the end of legal abortion in the United States. Rather, the issue would return to the states, where it was before Roe v. Wade. State legislatures would then have the power to determine the legal status of abortion in their individual states.
Several states have already enacted laws intended to go into effect if Roe v. Wade were overturned. Some of these laws would ban most abortions, while others would maintain the status quo of broadly legal abortion under Roe.
- See also How did abortion become legal in the United States?
- See also What was the legal status of abortion in the United States before Roe v. Wade?
Since the Supreme Court’s Roe v. Wade and Doe v. Bolton rulings in 1973 (see above), most states have sought to impose restrictions on abortion. As these laws have been enacted, Planned Parenthood, the American Civil Liberties Union (ACLU) and other abortion advocacy organizations have sought court injunctions to prevent them from going into effect. Many of these legal battles have found their way to the U.S. Supreme Court.
In Planned Parenthood v. Danforth (1976), the Court upheld the right of a state to require the consent of one parent when a minor sought an abortion. A judicial bypass provision was required in cases where a minor felt she would be in danger if she sought consent from a parent.
In Webster v. Reproductive Health Services (1989), the Court upheld a state’s prerogative to prohibit the use of taxpayer funds and public facilities for abortions.
In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) the Court discarded the trimester formula adopted in Roe, and ruled that states could enact laws to protect the unborn child after viability. Casey also upheld the state’s 24-hour waiting period before an abortion, as well as the state’s parental consent and informed consent laws.
In Gonzales v. Carhart (2007) the Supreme Court upheld the federal ban on a particular type of late term abortion known as partial birth abortion.
Planned Parenthood v. Danforth, 428 U.S. 52 (1976).
Webster v. Reproductive Health Services, 492 U.S. 490 (1989).
Planned Parenthood v. Casey, 505 U.S. 833 (1992).
Several measures have been enacted in various states to restrict abortion:
Parental Notification: Parental notification statutes require written proof that one or both parents have been notified of their daughter’s desire to have an abortion. Parental notification is required in 11 states.
Parental Consent: Parental consent statutes require written proof that, not only have one or both parents been notified, but also that one or both parents consent to their daughter’s decision. Twenty-six states have parental consent laws.
Waiting Periods: Waiting periods ranging from one to 24 hours before an abortion can be performed have been enacted in 27 states.
Informed Consent: While it is ethically and legally required for a doctor to explain a medical procedure before performing it on a patient, this is not universally required for abortion. Eighteen states have laws—sometimes referred to as “Right to Know” laws—requiring a woman to be provided with some kind of information before an abortion is performed. This information ranges from offering a woman an ultrasound and thoroughly explaining the procedure to merely making pamphlets that explain the procedure available.
Partial Birth Abortion Bans: In addition to a federal law banning partial birth abortion, 21 states have laws prohibiting the practice that would remain in force if the federal law were ever repealed.
Late Term Abortion Bans: Forty-three states restrict late term abortion, some on the basis of fetal viability, others because the fetus can feel pain. These laws prohibit abortion after a certain point in pregnancy, usually
24 weeks or as early as 20 weeks, and all include exceptions for either the life or health of the mother.
The numbers of states listed above refer to states where abortion restrictions are in force. Many other state restrictions on abortion have been enjoined by the courts either permanently or while undergoing legal challenge, and are not in force.
It is also important to note that while those state restrictions that are in force provide some degree of protection to the unborn and their mothers, abortion remains relatively easy to obtain throughout the United States.
For detailed information on state restrictions, see the sources cited below, which are updated monthly.
Guttmacher Institute. “State Policies in Brief: An Overview of Abortion Laws.” Last modified November 13, 2019. https://www.guttmacher.org/state-policy/explore/overview-abortion-laws.
Guttmacher Institute. “State Bans on Abortion through Pregnancy.” Last modified November 15, 2019. https://www.guttmacher.org/state-policy/explore/state-policies-later-abortions.
In a 2018 analysis conducted for the Charlotte Lozier Institute, Catholic University of America Professor Michael New found that parental involvement laws have lowered abortion rates by at least 13% among minors in the states where they have been enacted. The most dramatic results were seen in laws requiring parental consent, rather than just notification, and laws requiring involvement from both parents, rather than just one.
Since these laws can be circumvented if a girl can travel to a nearby state without a parental involvement law, such laws are more effective when neighboring states have similar laws in force.
New, Michael, PhD. “How the Legal Status of Abortion Impacts Abortion Rates.” Charlotte Lozier Institute. May 23, 2018. https://lozierinstitute.org/how-the-legal-status-of-abortion-impacts-abortion-rates/.
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.
Freedom of Access to Clinic Entrances Act of 1994. 18 U.S. Code § 248. http://www.justice.gov/crt/about/spl/facestat.php.
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.