Abstract
The current era of constitutional law relevant to abortion began on January 22, 1973, when the Supreme Court announced its decision in Roe v Wade. The Court’s opinion placed severe limitations on government action restricting access to abortion.1 The incidence of abortion has risen rapidly as the result of Roe. The number of legal abortions was estimated to be 745,000 in 1973 and 1,410,000 in 1978; the proportion of women in their reproductive years undergoing an abortion rose from 1.7 percent in 1973 to 2.8 percent in 1978.2 At the same time that abortion has become more frequent, it has become an important political issue; in 1980, the Republican party adopted a platform calling for a constitutional amendment that would overturn the Roe decision and prohibit abortion.3
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Preview
Unable to display preview. Download preview PDF.
Notes
Roe v Wade, 410 U.S. 113 (1973).
Stanley Henshaw, Jacqueline Forrest, Ellen Sullivan, & Christopher Tietze, Abortion in the United States, 1978–1979, 13 Family Planning Perspectives 6, 7 (1981). Of all abortions, the proportion performed on women who had previously had an abortion was estimated to be 15 percent in 1974 and 23 percent in 1976.
Christopher Tietze, Repeat Abortions — Why More? 10 Family Planning Perspectives 286 (1978).
Patricia Steinhoff, Roy Smith, J. Palmore, M. Diamond, & C. Chung, Women Who Obtain Repeat Abortions: A Study Based on Record Linkage, 11 Family Planning Perspectives 30 (1979).
The platform provides as follows: There can be no doubt that the question of abortion, despite the complex nature of its various issues, is ultimately concerned with equality of rights under the law. While we recognize differing views on this question among Americans in general-and in our own party-we affirm our support of a constitutional amendment to restore protection of the right to life for unborn children. We also support the Congressional efforts to restrict the use of taxpayers’ dollars for abortion. National Abortion Rights Action League, 12 Newsletter 6 (August, 1980).
Roe v Wade utilized the due process clause of the Fourteenth Amendment, which is applicable to the action of States, because the statute in dispute was that of a State. The due process clause of the Fifth Amendment, however, provides identical protections from action of the federal government. See Harris v McRae, 100 S.Ct. 2671, 2685 (1980).
Roe v Wade, supra note 1, at 159.
Recent evidence indicates that abortion is safer than childbirth until the sixteenth week (i.e., the fourth month) of pregnancy. Willard Cates & Christopher Tietze, Standardized Mortality Rates Associated with Legal Abortion: United States, 1972–1975, 10 Family Planning Perspectives 109 (1978).
Roe v Wade states that abortion cannot be forbidden after fetal viability if the “life or health” of the woman is jeopardized. No definition is given for the term health. However, two years earlier, a statute had been considered that prohibited abortions except when they were required to preserve the “life or health” of the pregnant woman; the Court rejected the argument that the term health was ambiguous and defined it to include both mental and physical well-being. United States v Vuitch, 402 U.S. 62, 72 (1971). In using the term health in Roe v Wade, the Court evidently adopted the same definition. Indeed, the Court cited its earlier decision in referring to the question of whether the statute before it was vague. 410 U.S. at 164.
Roe v Wade, 410 U.S. at 165-66.
DoevBolton, 410 U.S. 179(1973).
Planned Parenthood of Central Missouri v Danforth, 428 U.S. 52 (1976).
Colautti v Franklin, 439 U.S. 379,400-401 (1979).
Id. at 388-89; Planned Parenthood of Central Missouri v Danforth, supra note 10, at 64.
Planned Parenthood of Central Missouri v Danforth, supra note 10, at 67.
Women’s Services, P.C. v Thone, 636 F.2d 206 (8th Cir. 1980); Margaret S. v Edwards, 488 F.Supp. 181 (E.D. La. 1980); Leigh v Olson, 497 F.Supp. 1340 (D. N.D. 1980).
Compare Charles v Carey, 627 F.2d 772 (7th Cir. 1980) and Women’s Services, P.C. v Thone, supra note 14, with Wolfe v Schroering, 541 F.2d 523 (6th Cir. 1976). See generally Michael Lupfer & Bohne Silber, How Patients View Mandatory Waiting Periods for Abortion, 13 Family Planning Perspectives 75 (1981).
Charles v Carey, supra note 15; Planned Parenthood Ass’n v Ashcroft, 483 F.Supp. 679 (W.D. Mo. 1980); Akron Center for Reproductive Health, Inc. v City of Akron, 479 F.Supp. 1172 (N.D. Ohio 1979); Margaret S. v Edwards, supra note 14. See Planned Parenthood v Bellotti, 499 F.Supp. 215 (D. Mass. 1980).
Planned Parenthood of Central Missouri v Danforth, supra note 10, at 70n.ll.
Wolfe v Schroering, supra note 15.
Henshaw, Forrest, Sullivan, & Tietze, supra note 2, at 17.
Scheinberg v Smith, 482 F.Supp. 529 (S.D. Fla. 1979).
Melvin Zelnik, Young Kim, & John Kantner, Probabilities of Intercourse and Conception among U.S. Teenage Women, 1971 and 1976, 11 Family Planning Perspectives 177, 183 (1979).
National Center for Health Statistics, U.S. Department of Health & Human Services, Final Natality Statistics, 1978, Monthly Vital Statistics Report, vol. 29, no. 1 Supp. [DHHS Pub. No. (PHS) 80-1120] (1980), at 12; National Center for Health Statistics, U.S. Department of Health, Education & Welfare, Teenage Childbearing: United States, 1966–75, Monthly Vital Statistics Report, vol. 26, no. 5 Supp. [DHEW Pub. No. (HRA) 77-1120] (1977), at 9.
Melvin Zelnik & John Kantner, First Pregnancies to Women Aged 15–19: 1976 and 1971, 10 Family Planning Perspectives 11, 13, 14 (1978).
Ginsburg v New York, 390 U.S. 629 (1968).
H.L. v Matheson, 101 S.Ct. 1164 (1981).
Planned Parenthood of Central Missouri v Danforth, supra note 10, at 75.
H.L. v Matheson, supra note 25, at 1171.
As to the procedures by which parental denial of consent may be overruled, see Bellotti v Baird, 443 U.S. 622 (1979).
Maher v Roe, 432 U.S. 464(1977).
The equal protection clause of the Fourteenth Amendment provides that “[n]o State shall... deny to any person within its jurisdiction the equal protection of the laws.” A guarantee of equal protection applicable to the federal government has been inferred from the due process clause of the Fifth Amendment. Hampton v Wong, 426 U.S. 88 (1976). See note 4, supra.
Maherv Roe, 432 U.S. at 475-76.
Harris v McRae, 448 U.S. 297 (1980).
Id. at 316-317.
James Trussell, Jane Menken, Barbara lindheim, & Barbara Vaughan, The Impact of Restricting Medicaid Financing for Abortion, 12 Family Planning Perspectives 120 (1980).
Jeff Borders & Phillips Cutright, Community Determinants of U.S. Legal Abortion Rates, 11 Family Planning Perspectives 227 (1979).
Jacqueline Forrest, Ellen Sullivan, & Christopher Tietze, Abortion in the United States, 1977–1978, 11 Family Planning Perspectives 329, 335 (1979).
Baird v Dep’t of Pub. Health, 599 F.2d 1098 (1st Cir. 1979); Friendship Medical Center, Ltd. v Chicago Bd. of Health, 505 F.2d 1141 (7th Cir. 1974), cert. denied, 420 U.S. 997 (1975); Hodgson v Lawson, 542 F.2d 1350 (8th Cir. 1976); Mahoning Women’s Center v Hunter, 610 F.2d 456 (6th Cir. 1979), vacated and remanded on other grounds, 100 S.Ct. 3006 (1980).
Author information
Authors and Affiliations
Rights and permissions
Copyright information
© 1982 Springer Science+Business Media Dordrecht
About this chapter
Cite this chapter
Barnett, L.D. (1982). Abortion. In: Population Policy and the U.S. Constitution. Kluwer · Nijhoff Studies in Human Issues. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-2718-1_10
Download citation
DOI: https://doi.org/10.1007/978-94-017-2718-1_10
Publisher Name: Springer, Dordrecht
Print ISBN: 978-94-017-2720-4
Online ISBN: 978-94-017-2718-1
eBook Packages: Springer Book Archive