Law of the Land

This blog–which is intended to serve as a combination of news feed and news-based commentary on abortion issues–should really begin by noting the general law applicable to a woman’s ability to procure an abortion. I start here because an improper understanding of the law, especially the three points discussed below, is a major reason for poor debate on abortion issues.

Although most of the issues surrounding the law on abortion are accompanied by debate and differences of opinion, several general principles are undisputed. First, it is clear that the effect of Roe v. Wade, 410 U.S. 113 (1973), was to “constitutionalize” abortion law, making all other contradictory statutory law immediately invalid. At the time Roe was decided, many legal scholars from many ideological perspectives saw the sweeping effect of the decision as a change in the law without precedent.

Second, although Americans continue to use the casename “Roe” as shorthand for the abortion legal framework, another case has essentially replaced Roe as the legal standard governing abortion law: Planned Parenthood v. Casey, 505 U.S. 833 (1992). The plurality opinion in Casey replaced the trimester framework set forth in Roe and replaced it with a new standard for evaluating a woman’s relative right to a pre-viability abortion. Under the Casey standard, a court must invalidate any law imposing an “undue burden” on a woman’s right to an abortion prior to viability. States are said to have complete authority to restrict a right to a post-viability abortion.

But with both pre-viability and post-viability abortions, a major exception exists that permits abortion irrespective of the constitutionality of the statute restricting abortion. This exception, known as the “life or health” exception, was first set forth in Roe and was later reaffirmed in Casey. Under the “life or health” exception, a woman may procure an abortion at any stage of pregnancy if “it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” Casey, 505 U.S. at 879. One further case is necessary to understanding the “life or health” exception; the doctor evaluating a woman’s eligibility under the “life or health” exception is allowed to consider “all factors–physical, emotional, psychological, familial, and the woman’s age–relevant to the well-being of the patient.” Doe v. Bolton, 410 U.S. 179, 192 (1973).

It is the “undue burden” standard set forth in Casey that could be seen as both pro- or anti-abortion, depending on the court’s findings on whether a burden is “undue.” Indeed, advocates on both sides immediately saw Casey as a partial victory for their respective side. To be clear, under the Casey standard, the state and federal government have limited authority to restrict access to early abortions and broad authority to restrict access to late-term abortions. The state laws on abortion that are passed on a regular basis will undoubtedly end up in court to receive judicial evaluation under this standard.

But anti-abortion advocates quickly saw that “life or health” exception was large enough to swallow up the general rule. It is this exception–together with the breadth of the exception as stated in Doe v. Bolton–that anti-abortion advocates reference when they use the term “abortion on demand.” Although the term is imprecise, it is true that a woman can procure an abortion at any stage of pregnancy if, at minimum, a doctor determines that emotional or familial factors militate against having a baby. Whatever the outcome of the court case evaluating whether a new law poses an “undue burden,” the law will have no practical application for women meeting this exception.

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