In Part 2 of this series, we left off with abortion rights advocates celebrating the Roe v. Wade decision of 1973, which gave women the right to choose to terminate pregnancy up to a gestational age of 28 weeks, the beginning of the third trimester. But we also noted that this galvanized opponents of abortion, leading, not only to the Hyde Amendment of 1976 that kept Medicaid from paying for abortions, but also to a law in the state of Pennsylvania. Enacted in 1982 as the Pennsylvania Abortion Control Act and then amended in 1988 and 1989, this law did not prohibit abortion in principle, but sought to prevent abortions by throwing various stumbling blocks in the pathway of any abortion seeker within the state. In its amended form, the law mandated the following restrictions:
- Before undergoing an abortion, a woman had to provide “informed consent”, meaning that she needed to listen to information about abortion, information that was required to include possible, but rare, negative outcomes on the woman’s health, akin to the list of potential complications that you hear rattled off at the end of commercials for medications. She then would have to go home and wait at least 24-hours before returning for the actual procedure.
- All abortion facilities in Pennsylvania had to report themselves to the state
- Before undergoing abortion, a minor had to obtain informed consent from a least one of her parents, except in cases of “hardship” that a court would have to determine is present, in which case it could issue what’s called a judicial bypass. This meant that a minor who didn’t want to tell her parents about her pregnancy would have to explain her situation to a court, or to somebody working with a court. This requirement was designed to intimidate minors into backing off from their plans to terminate pregnancy.
- Before undergoing an abortion, married women were required to inform their husbands, except in cases of “medical emergency”. Along with deterring married women from terminating pregnancy, this requirement was intended to win political support from abortion opponents based on a rationale of paternal rights over the fetus. Also, by adding this provision to the law, Pennsylvania narrowed the definition of medical emergency to mean that the physician judges that the abortion is necessary “to avert [the mother’s] death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function.” So, for example, while you could be sure that an abortion would be deemed necessary to save your life if you have something like class IV (severe) heart failure or cancer requiring chemotherapy or radiation, you could not be so sure with heart failure of intermediate classes, or with diabetes, high blood pressure, or asthma, even though pregnancy put your life at increased risk from those conditions.
To keep Pennsylvania from enforcing the restrictions, Planned Parenthood of Southeastern Pennsylvania and doctors from five abortion clinics filed suit against Pennsylvania Governor Bob Casey in the United States District Court for the Eastern District of Pennsylvania. This lower federal court declared the rules unconstitutional and blocked their enforcement, causing the case to be reviewed by the Third Circuit Court of Appeals, which agreed that the requirement for a wife to notify her husband was unconstitutional, as it would put too much burden on a wife, because it could trigger physical abuse and/or financial retaliation. In contrast with the lower court, however, the appellate court upheld the other restrictions of the Pennsylvania law. This meant that women would have to listen to warnings about negative outcomes and wait 24 hours and that minors would have to obtain parental consent, or judicial bypass to have an abortion. Also noteworthy is that the Third Circuit decision against husband notification requirement was not unanimous among the three appellate judges. The dissenter —who thought that wives ought to be required to notify their husbands— was Samuel Alito, who is now a SCOTUS justice.
The case reached the SCOTUS in 1992, when the anti-abortion movement was getting extremely powerful and increasingly ruthless. Norma McCorvey, the real Jane Roe, not only had revealed herself by this time, but was siding with the pro-life movement in public appearances, saying that abortion should be prohibited, sometimes specifying after the first trimester. Later in life, she would reveal that abortion opponents were paying her, that she would take their money and say what they instructed her to say, and that she was really pro-choice. Meanwhile, conservative legal experts were weaving a tale that they thought that the Roe v. Wade decision on abortion and the 1965 Griswold v. Connecticut decision on contraception (mentioned in Part 2) were inappropriately flexible applications of the 14th Amendment to privacy. Conflicting with this picture was the fact that the conservatives had no problem with the previous application of the 14th Amendment to guarantee privacy, namely privacy for individuals to enter contracts with companies, which conservatives had used to justify child labor in sweatshops in the early 20th century.
Now the SCOTUS of 1992 differed in its composition from what it had been 19 years earlier. Still on the court was Justice Blackmun, who had written the majority opinion for Roe v. Wade and had turned out to be liberal on many issues. Justice John Paul Stevens, nominated by President Ford, also had turned out liberal and could be expected, as much as Blackmun, to vote to uphold Roe v. Wade. At the other side of the issue were the two dissenters from from Roe decision, one being Byron White and the other William Rehnquist, who was now Chief Justice. They were joined by two conservative ideologues, Clarence Thomas and Antonin Scalia, who were certain votes to overturn Roe. This gave a lot of power to three moderate conservatives —Sandra Day O’Connor, David Souter, and Anthony Kennedy— who ended up aligning in a way that caused the SCOTUS to uphold the main principle of Roe v. Wade, that the due process clause of the 14th Amendment protected a woman’s right to choose up to the point of fetal viability. Consequently they, along with the two liberal justices, were able to declare the Pennsylvania rule about wives having to notify their husbands before getting abortions as unconstitutional.
Reasoning that a need for spousal notification created an “undue burden” on the wife, because of possibilities of abuse by the husband that the Third Circuit court had pointed out, the three moderate conservatives wrote an opinion also saying that anything else that created an “undue burden” on an abortion seeker also would be unconstitutional. To “clarify” what else, apart from the Pennsylvania husband notification provision, would constitute an “undue burden”, the moderate conservatives defined an “undue burden” as anything that would create a “substantial obstacle”. Since this opinion (called a plurality opinion, since there was no majority to write anything) upheld the other provisions of the Pennsylvania law, including requirement for minors to get parental consent, the implication was that those other provisions did not count as “undue burdens” or “substantial obstacles”. This created a huge zone of vagueness that invited lawmakers in anti-abortion states to draft all sorts of crazily worded laws designed to place obstacles in the pathway to an abortion that people could argue were not substantial obstacles.
At the same time, Justice O’Connor, citing a handful of out-of-context studies and case reports of rare instances when infants survived following birth earlier than 24 weeks gestation, produced what was essentially a pseudoscientific claim that medicine had pushed back the limit of viability from 28 weeks gestation to 23 weeks. Perhaps when artificial womb technology is ready, legal minds can rethink the viability issue, as the technology would open the possibility of transferring a fetus out of the woman, thus ending her pregnancy, without killing the fetus. But we are many years away from such capability, or many decades. In any case, based on such an unrealistic assessment of the capabilities of the era, the plurality opinion of the three moderate conservatives declared that the trimester framework was obsolete and that there were only two stages of pregnancy that mattered to the law: viability and pre-viability. The result of this declaration has been various states enacting laws using a range of gestational ages as the point of viability, beyond which a woman’s right to an abortion could be denied. I recalling a conversation as a medical student, in Israel, with an obstetrics/gynecology instructor who remarked something like, “In the US, abortion is legal until 26 weeks”.
Knowing about the 28 weeks and Roe v. Wade, I shrugged in confusion, but now I realize that the instructor must have heard about some particular state that had a 26 week cutoff and that she must have assumed that it had been part of some uniform rule across the United States. Since the Planned Parenthood v. Casey decision of 1992, the cutoff has been set at different points in different states. In Texas, for instance, if you want an abortion, and you have no life-threatening medical condition and the fetus has no severe abnormality, you need to get the procedure by the end of the 20th week, or the state will deny you the right to choose.
Given this rational to select the point of viability, plus terminology that was intentionally vague handed down in the Planned Parenthood v. Casey decision of 1992, and then in another SCOTUS decision, Gonzales versus Carhart in 2007, antiabortion state legislatures and governors have had a field day. Of the many laws that have been enacted, some, such as the Alabama law seeking to prohibit all abortions in 2019, are for the goal of getting Roe v. Wade overturned in its entirety. But most of the restrictions have been enacted are hurting abortion rights through more of a death-by-a-thousand-cuts effect. Along with pushing back the point of viability, these laws have been enacted to make abortion a logistical nightmare for you if you are considering terminating your pregnancy, and also a psychological nightmare, as the strategy is to force doctors to tell you and show things to make you feel as guilty as possible. Don’t fall for it. If you are pregnant and do not wish to be, learn the laws in the state where you live. If you are required to look at an ultrasound and listen to an embryonic heartbeat, remember that an embryo or fetus is not a sentient being, just because it has a little muscle pumping blood. A fish has a heartbeat that you could see and hear on ultrasonography. Don’t make the experience more emotional than it needs to be by allowing anybody to make you feel guilty. Roe v. Wade was a logical, consistent decision in 1973 and it would make just as much sense today, if restored to its full effect.