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Has there been a diminishing of the doctrine of Roe v Wade in US law?

This essay was written for a law course assessment at the University of Aberdeen. 

Introduction

Roe v Wade declared state interference with a woman’s right to abortion to be unconstitutional by virtue of the 14th Amendment (Roe v. Wade, 1973: 113). This seemingly established an unfettered right to abortion in the USA. However, this unearthed many unanswered questions. While liberals welcomed the change, conservative action was and continues to be sought to reverse the Supreme Court’s (SC) judgment. Since the decision, abortion rights have been narrowed by way of case law and law reform. This has caused the diminishing of Roe’s doctrine to some extent, as demonstrated in this analysis. Politics has had some bearing on this, with the political landscape of the US now posing a real risk to reversing the precedence set by Roe v. Wade.

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Roe v Wade

Before Roe v Wade

Historically, abortion was only lawful in the US in cases where continuation of the pregnancy risked maternal life or health, congenital defects were apparent, or in cases of rape or incest (Silverstein, 1977: 184). This caused countless women to suffer severe consequences due to illegal abortions where termination was required outwith those circumstances (Ingelfinger, 2018: 709). States like New York enacted regulations permitting abortion on request conducted by licensed physicians until foetal viability (Benson Gold, 2003: 10). This decreased the need for treatment following procedural complications (Silverstein, 1977: 186). Many affluent women from outside the state sought the procedure there (Benson Gold, 2003: 10).

Two Cases

Roe is arguably America’s most famous case. The SC 7-2 judgment established the doctrine that the 14th Amendment due process clause was broad enough to encompass a qualified right to privacy that protects women’s right to abortion (US Congressional Research Service, 2019: 1). The Court declared that the 14th Amendment does not include the unborn (Roe v. Wade, 1973). Blackmun stated in Doe v Bolton that upon striking down Texan abortion law, this effectively strikes down all state laws on abortion which violate the 14th Amendment (Doe v. Bolton, 1973: 179).

Roe established the trimester framework for abortion regulation (Roe v. Wade, 1973). The Court adjudicated restrictions could only be legitimised by a “compelling State interest” which a ban on abortion did not amount to despite legitimate aims to protect maternal and foetal life (Roe v. Wade, 1973). The SC found that states’ interests to restrict abortion became justifiable through the progression of pregnancy and it was only after the first trimester that states could be said to have a compelling interest in regulating abortion to protect the mother’s health (US Congressional Research Service, 2019: 2). Regarding foetal life, states’ compelling interest could only be established after foetal viability (Ibid.). Upon viability, states could regulate and forbid abortion except when required to protect the mother’s life or health.  The Roe doctrine was furthered by Doe which established the “undue influence” principle (Ibid.). This disallowed states from imposing unreasonable procedural barriers on termination access (Ibid.). Doe was decided by the SC on the same day as Roe, with the SC stating the judgments should be read together (Ibid.; Doe v. Bolton, 1973).

However, the Court did not clarify when viability occurs during pregnancy, but defined viability as when the foetus could live outside the womb even where artificial assistance was required (Ibid.). Questions left unanswered by Roe bred post-judgment litigation, much of which has caused stricter curtailment of abortion (Ibid.). This, the rise of new restrictive state laws, and the proposed reforms to Title X create a real risk that the Roe v Wade doctrine will be entirely diminished.

An Unfettered Right?

Webster

Although Roe enacted the rule of law for legalising abortion, the judgment gave states wide discretion in regulating abortion, resulting in litigation challenging state laws opposing Roe. For example, in Webster v Reproductive Health Services, the SC upheld Missouri legislation prohibiting state funding and state employees participating in conducting abortion or related counselling but did not uphold a regulation requiring doctors to test for foetal viability prior to aborting a foetus at 20 weeks or more (Webster v Reproductive Health Services, 1989: 490). The Court held that the City of Akron v Akron Center for Reproductive Health, Inc. dictum prohibiting states from adopting “one theory of when life begins” to support abortion regulation had been “misconceived” (Ibid.). The SC declared this only applies where the regulation otherwise does not comply with Roe and Roe provided no restriction on states’ authority “to make a value judgment favoring childbirth over abortion” (Ibid.). Four justices called for reconsideration of Roe (Roe v. Wade).

Dellinger and Sperling argue that Webster’s standing “eviscerate[d] Roe without explicitly overruling the case.” (Dellinger; Sperling, 1989: 83) The Court rejected Roe’s recognition of “a fundamental constitutional right” with no explanation of the issue with this (Ibid.: 84). Forsyth partially disagrees, noting Webster did progress overturning Roe but gave a view of how the SC may narrow the scope of Roe in future (Forsyth, 1991: 520). The Court appears to have digressed from the “undue burden” principle as “substantive prohibitions” to abortion are upheld in Webster, ignoring the Court’s standing on procedural restrictions in Roe (Ibid.: 521). In “abandoning the trimester framework”, the Court declared this was “unworkable”, but did not expand on what this meant for legislatures (Dellinger; Sperling, 1989: 85-88). This omission legitimised state regulation of abortion in the “compelling interest” of an unborn child “throughout the pregnancy” and encumbered “a fundamental liberty.” (Ibid.: 88; Forsyth, 1991: 548) Desertion of the trimester framework highlights the diminishing of the Roe doctrine by undermining women’s right to abortion and propelling foetal life interest which the 14th Amendment does not apply to. The decision marks a catalyst in a series of cases that sought “to chip away at” and “eventually” topple Roe (Forsyth, 1991: 548).

Rust

Rust v Sullivan upheld federal legislation banning family planning (FP) clinics receiving Title X funding from referring or counselling individuals for abortion (Rust v Sullivan, 1991) The majority declared “government is not denying a benefit to anyone but is instead simply insisting that public funds be spent for the purposes for which they were authorized.” (E. Roberts, 1993: 589) The judgment struck “a particular balance between government power and individual rights.” (T. Roberts, 1992: 10) This knocked the Roe doctrine by infringing on women’s ability to make an informed choice at their liberty through restricting access to abortion information (E. Roberts, 1993: 590). Title X forces those seeking abortion into the private sector. This disproportionately affects poverty-stricken women who are unlikely to be capable of affording private healthcare (Ibid.). Resultantly, these women will struggle to exercise their right to abortion.

Casey

Planned Parenthood of Southeastern Pennsylvania v Casey partially overturned Roe, marking a pivotal point in US abortion law history (Planned Parenthood v. Casey, 1992: 833). Justices O’Connor, Kennedy and Souter stated that the right to abortion pre-viability is Roe’s core principle (Ibid.). However, they rejected the “problematic” trimester framework as an unessential element to the doctrine, citing Webster in support, declaring states enacting “a reasonable [abortion] framework” “consistent with Roe’s central premises” (Ibid.). Moreover, state interest “in potential life” meant “[n]ot all burdens […] will be undue” and cases like Harris v McRae portrayed the inconsistencies with “undue burden” (Ibid.). Thus, Casey redefined the standard as laws substantially obstructing abortion before viability (Ibid.).

Devins argues Casey demonstrated the SC’s unwillingness to overrule Roe, causing states to be deterred from heavily restricting abortion if Roe were diminished (Devins, 2009: 1322). However, the recent introduction of extremely limited state laws disproves Devins (Nash, 2019: 497-499). Daly also disagrees, warning Casey reduces protection offered by Roe as the Court deferred from previous dicta protecting against “more burdensome” limitations which the new standard is more likely to uphold (Daly, 1995: 148). Repealing the trimester framework and rebalancing undue burden widened the scope for states to impose restrictive abortion laws by lowering safeguards of women’s right to abortion, significantly diminishing Roe’s doctrine.

Ziegler argues that Whole Woman’s Health v Hellerstedt (WWH) “put teeth in the undue-burden test” of Casey (Ziegler, 2016: 78). WWH upheld the undue burden standard of Casey, rejecting the rational-basis approach (Ibid.: 106). Many abortion opponents had hoped this would diminish Roe after Gonzales v Carhart but WWH implemented “Roe’s strict scrutiny” (Ibid.: 98). However, the case encouraged opponents to impose “renewed emphasis on fetal life” to enact laws, the “Heartbeat Bills” for example, that the SC will uphold, thus depleting the Roe doctrine (Ibid.: 116). The political landscape may be the decider in upholding limiting legislation and Roe’s potential overruling (Ibid.: 115).

Partial-Birth Abortion

In Stenberg v Carhart the Court concluded that absence of “any exception for preservation of health of the mother” and undue burden placed on “the right to choose abortion itself” rendered a Nebraskan “partial-birth abortion” statute unconstitutional (Stenberg v. Carhart, 2000: 914). Stenberg’s judgment reaffirmed Casey that “unconstitutionality” will exist where a health exception is absent and upheld “undue burden” (Wharton et al., 2006: 347). This reaffirmed doctrinal elements of Roe upheld in Casey and demonstrates protection was continued by the new undue burden test.

However, Congress passed the Partial-Birth Abortion Ban Act 2003 (PBABA), advocating “it had a compelling interest” in promoting women’s health interests while providing clarity “between abortion and infanticide” (Lockett, 2008: 347). Gonzales v Carhart followed (Gonzales v. Carhart, 2007: 124). The SC held that the PBABA was not too vague, did not impose an undue burden, and was not facially invalid, and the absent health exception was irrelevant due to other safe options (Lockett, 2008: 356). The Court “assumed” “the central holdings of Roe and Casey”, emphasising the third holding of furthering “the legitimate interest of the Government in protecting the life of the fetus” – but did not state the doctrines of the cases as “controlling law” (Tepich, 2008: 377). Lockett suggests that Gonzales v Carhart unmasks a united driving force to overturn Roe by diversion of precedent (Lockett, 2008: 357).

Kennedy’s use of the “weaker” “rational basis review”, not employed since Roe, rather than the undue burden standard set by Casey diverts precedence (Tepich, 2008: 382-83). Justice Ginsburg described the Court’s decision as “alarming”, highlighting the Court’s ignorance of past decisions and the diversion from Casey (Gonzales v Carhart, 2007). She said the Court endows a ban without an exception that safeguards women’s health “for the first time since Roe” (Ibid.). Carhart’s deference from Casey, which upheld the core holdings of Roe, mocks those precedents. By assuming principles rather than employing these as steadfast, the Court diminishes the significance of the doctrines, suggesting that decisions such as Roe merely act as guidelines, rather than protection of women’s 14th Amendment rights.

Legislative Change

The Hyde Amendment

Roe opponents achieved restriction through the 1976 Hyde Amendment (HA), which prohibits federal funding of abortion (US Congressional Research Service, 2019: 14). Roe legitimised abortion as a medical practice as part of the Medicaid program (Ibid.: 15). Preservation of the mother’s life was generally the only exception to the HA until the 1990s when this was extended to cases of rape and incest (Ibid.). Harris v McRae upheld the Amendment on the basis that states party to Medicaid were not obligated to fund “medically necessary abortions” where the HA ban did not violate the 5th or 1st Amendments (Harris v. McRae, 1980: 297). This demonstrated “a sharp and immediate departure from Roe precedent.” (Adams; Arons, 2014) The Harris ruling places controversial restrictions on a woman’s “fundamental right” to terminate her pregnancy (Boyd, 1981). The holding betrayed Roe’s assurance that all women could make autonomous reproductive decisions equally by negatively impacting low-income women.” (Adams; Arons, 2014). Harris evades Roe’s assertion “that the state has a legitimate governmental interest in protecting” foetal life and maternal health by denying public funding of medical abortions (Boyd, 1981). Harris establishes “a two-tiered system” as state interference of the poor’s abortion rights is permissible whereas wealthier women are safeguarded (Adams; Arons, 2014). By upholding the HA in Harris, the Court destabilised the Roe doctrine of abortion as an equal right for all women by disproportionately limiting access between socio-economic classes.

Healthcare Reform

Extensive controversy arose concerning abortion funding under The Patient Protection and Affordable Care Act 2010 (PPACA) (US Congressional Research Service, 2019: 18). A compromise to include the HA subjected many women newly party to Medicaid to the Amendment also under PPACA (Sonfield; Pollack, 2013: 284). Further, insurers may be completely discouraged from providing abortion coverage due to the complex procedures that need be followed to avoid federal funds financing abortion (Ibid.). Where insurance is not available outwith the exchanges, women in states choosing to exclude abortion from these cannot access the procedure, causing PPACA restrictions to impede women’s right to termination (Spece, 2011: 91). The “undue burden test” could deem these restrictions “unconstitutional” (Ibid.: 90). While the PPACA sought to broaden healthcare access, the HA compromise continues to impede on women’s rights to access termination, opposing the Roe doctrine thusly. Additionally, maintenance of the unduly burdening insurance limitations would disregard precedence of Roe’s undue burden test, as affirmed in Casey, weakening the doctrines wholly.

Trump Administration

Title X Reforms

In early 2019 the Office of Population Affairs (OPA) issued a final rule revising Title X regulations, imposing a duty on employers to implement the necessary measures to adjust to employees’ needs where they conscientiously object to provide healthcare (84 FR 7714). Abortion clinics will also be required to be physically and financially separate from other FP services (Ibid.). The rule encompasses any professional who is linked to the process – for example, “a nurse could refuse to measure the blood pressure of a woman who had just had an abortion.” (Sepper, 2019: 896) Sepper states “abortion is the primary target” and implementation of the rule could have profound implications on women’s access to abortion-related healthcare (Ibid.). Furthermore, employers are not permitted to rebalance staff, nor does the possess an emergency exception, contradicting the Emergency Medical Treatment and Active Labor Act (EMTALA) which requires hospitals to admit patients in an emergency, creating a rigid framework (Ibid.: 897). Therefore, the government is effectively permitting restricted abortion access as this rule could make it extremely difficult for women to access abortion due to employees exercising their right not to provide care at any stage. This adds to the diminishing of Roe as this could potentially unduly burden women’s access and does not protect the right to access abortion under the 14th Amendment. The ruling to block or maintain these reforms will determine the effect of the rule on Roe (Ibid.).

Heartbeat Bills

Restrictive “heartbeat bills” have swept across America in 2019, conveying states’ constitutional efforts to overrule Roe (Arey, 2019). An example of this is the Louisiana Foetal Heartbeat Act 2019, illegalising abortion after 6 weeks with no exceptions for rape or incest – the only exceptions are risk to maternal life or “medically futile” pregnancies (Louisiana Senate Bill 184). Despite desertion of the trimester framework, Roe supported by Casey continues to uphold a woman’s right to abortion until viability, which medical professionals concur takes place at 24 weeks – considerably longer than these laws would allow (Arey, 2019). Therefore, the “heartbeat bills” enacted by states defy the Roe doctrine. However, states including Arkansas, Kentucky, Missouri and Tennessee have imposed trigger laws that would prohibit abortion if Roe is overturned (Nash, 2019: 499).

President Trump has appointed Justices Gorsuch and Kavanaugh to the SC in an effort to secure the overturning of Roe (Scheindlin, 2019). Scheindlin suggests states want lawsuits challenging new statues to progress to the SC to secure this (Ibid.). After June Medical Services v Dr Rebekah Gee and Franchise Tax Board of California v Hyatt in which the Court overruled previous precedent, it is not unreasonable to suggest that the Court might overrule Roe as “wrongly decided” (Ibid.). Therefore, conservative politics in federal courts pose a real risk to diminishing the doctrine of Roe entirely due to contrasting with beliefs of Justices, rather than upholding “respect for the rule of law” (Ibid.). Contrastingly, states such as Illinois, New York and Vermont have enacted legislation safeguarding abortion rights throughout pregnancy (Nash, 2019: 499). Thus, some states are taking action to preserve the Roe doctrine even if the SC does overturn the decision. However, this would create protection inconsistencies offered between states, essentially reverting America back to the pre-Roe position. American women would not equally be guaranteed the right to abortion under the 14th Amendment, thus wiping out the basis of the doctrine.

Conclusion

Roe has clearly been diminished to some extent since 1973, particularly due to Casey which partially overturned Roe. Gonzales v Carhart significantly diminished Roe by merely “assuming” the doctrine, wholly undermining precedence, however WWH strengthened the Roe doctrine by reaffirming “undue burden”. Harris further diminished Roe by upholding unequal abortion access. Despite the PPACA’s attempt to extend abortion access, complex provisions and the HA sacrifices have stunted this and not furthered Roe. The stringent “Heartbeat Bills” and Title X reforms would massively restrict abortion rights. The conservative political climate of the US may result in affirmation of these, diminishing Roe thusly, possibly leading to an overruling.

 

Sources

Table of Cases

Doe v. Bolton, 410 U.S. 179 (1973)

Gonzales v. Carhart, 550 U.S. 124 (2007)

Planned Parenthood v. Casey, 505 U.S. 833 (1992)

Roe v. Wade, 410 U.S. 113 (1973)

Rust v. Sullivan, 500 U.S. 173 (1991)

Stenberg v. Carhart, 530 U.S. 914 (2000)

Webster v. Reproductive Health Services 492 U.S. 490 (1989)

Table of Statutes

Louisiana Senate Bill 184

Title X Final Rule 84 FR 7714

Journals

Adams J E and Arons J, ‘A Travesty of Justice: Revisiting Harris v. McRae,’ (2014) 21 William & Mary Journal of Women and the Law 5-58

Boyd L P, ‘The Hyde Amendment: New Implications for Equal Protection Claims,’ (1981) 33(2) Baylor Law Review 295-306

Daly E, ‘Reconsidering Abortion Law: Liberty, Equality, and the New Rhetoric of Planned Parenthood v. Casey’ (1995) 45 American University Law Review 77-150

Dellinger W and Sperling G B, ‘Abortion and the Supreme Court: The Retreat from Roe v. Wade’ (1989) 138 University of Pennsylvania Law Review 83-118

Devins N, ‘How Planned Parenthood v. Casey (Pretty Much) Settled the Abortion Wars,’ (2009) 118(7) Yale Law Journal 1318-1355

Forsyth C D, ‘A Legal Strategy to Overturn Roe v. Wade after Webster: Some Lessons from Lincoln’ (1991) 1991 Brigham Young University Law Review 519-560

Gold R B, ‘Lessons from Before Roe: Will Past be Prologue?’ (2003) 6 Guttmacher Report on Public Policy 8-11

Ingelfinger J R, ‘A Remembrance of Life before Roe v Wade’ (2018) 379(8) The New England Journal of Medicine 708-709

Lockett C D, ‘The Beginning of the End: The Diminished Abortion Right following Carhart and Planned Parenthood’ (2008) 11(2) Journal of Gender, Race and Justice 337-388

Nash E, ‘Abortion Rights in Peril – What Clinicians Need to Know’ (2019) 381(6) The New England Journal of Medicine 497-499

Roberts D E, ‘Rust v. Sullivan and the Control of Knowledge’ 61(3) (1993) George Washington Law Review 587-656

Roberts M T, ‘Individual Rights and Government Power in Collision: A Look at Rust v. Sullivan through the Lens of Power Analysis’ (1992) 49 Washington and Lee Law Review 1023-1052

Sepper E, ‘Toppling the Ethical Balance — Health Care Refusal and the Trump Administration’ (2019) 381(10) The New England Journal of Medicine 896-898

Silverstein A, ‘From a Crime to a Right: Law, Economics, and Abortion ‘ [1977] 7 Maryland Law Forum 182-191

Sonfield A and Pollack H A, ‘The Affordable Care Act and Reproductive Health: Potential Gains and Serious Challenges’ (2013) 38(2) Journal of Health Politics, Policy and Law 373-391

Spece R G Jr, ‘The Purpose Prong of Casey’s Undue Burden Test and its Impact on the Constitutionality of Abortion Insurance Restrictions in the Affordable Care Act or its Progeny’ (2011) 33 Whittier Law Review 77-108

Tepich L J, ‘Gonzales v. Carhart: The Partial Termination of the Right to Choose,’ (2008) 63(1) University of Miami Law Review 339-394

Wharton L J, Frietsche S, Kolbert K, ‘Preserving the Core of Roe: Reflections on Planned Parenthood v. Casey,’ (2006) 18(2) Yale Journal of Law and Feminism 317-388

Ziegler M, ‘Substantial Uncertainty: Whole Woman’s Health v Hellerstedt and the Future of Abortion Law’ (2016) 2016 The Supreme Court Review 77-116

Reports

US Congressional Research Service. Abortion: Judicial History and Legislative Response (RL33467; Sept. 9, 2019), by Jon O. Shimabukuro. Text in: https://crsreports.congress.gov/; Accessed November 16, 2019.

Newspapers

Scheindlin S A, ‘If Roe V Wade Is Overturned, We Should Worry About The Rule Of Law’ The Guardian (2019) <https://www.theguardian.com/commentisfree/2019/may/21/trump-abortion-roe-v-wade-supreme-court-judges> accessed 13 November 2019

Websites/Blogs

Arey W, ‘Web Roundup: Abortion Bans, Heartbeat Bills, and the Future of Roe v. Wade’ (Somatosphere, 28 June 2019) http://somatosphere.net/2019/web-roundup-abortion-bans-heartbeat-bills-and-the-future-of-roe-v-wade.html/ accessed 18/11/19

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