Abortion has been a controversial issue in American culture, society, and
political history. It has been a complex debate due to a conflict of rights,
i.e. a fetal's right to life versus the right of a woman to control her own
body. People have different approaches on this subject, those who believe that
it's a decision of a woman whether to terminate her pregnancy or not, are
identified as 'pro-choice', whereas those who debate that the 'fetus' has a
right to live are identified as 'pro-life'.
The two major political parties of the nation are also divided with different
perspectives, the Republican Party has been fighting presidential elections with
abortion as one of their key grounds for votes, ensuring people either
criminalize abortion or restrict it based on the stages of pregnancy, while the
Democratic Party has generally defended the access to abortion.
There are mainly 3 landmark cases that defined and shaped the constitutional
protection for a woman's right to abortion in the United States of America:
Roe v. Wade
- Roe v. Wade (1973)
- Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)
- Whole Woman's Health v. Hellerstedt (2016)
 was a landmark case of the U.S. Supreme Court in which
the court ruled that a woman has a right to abortion prior to the viability of
fetus. Further, the court held that criminalizing abortion violates a woman's
constitutional right of privacy, which is found to be inferred from liberty
guaranteed under the Fourteenth Amendment ("�nor shall any state deprive any
person of life, liberty, or property, without due process of law"). Hence,
abortion was decriminalized in the U.S.A. after this judgment.
Facts of the case
In 1970, a single (unmarried) woman pregnant with a third child, Norma McCorvey,
resident of Texas, by a pseudonym - "Jane Roe" brought up a federal action
against Henry Wade, District Attorney of Dallas County, challenging the criminal
abortion laws in Texas. Roe wished to have an abortion after discovering she was
pregnant however back then abortion was illegal in Texas and it was prohibited,
except in cases where the mother's life was in danger. In her lawsuit, Roe
claimed that the state laws were unconstitutionally vague and infringed her
right to personal privacy.
- Whether the Constitution recognizes the right of a woman to terminate
her pregnancy by abortion?
- Whether the abortion right is absolute?
How did Roe v. Wade change women's rights?
Judgment - On 22nd January 1973, the Supreme Court by the vote of 7-2 (total
bench of 9 judges) decided in favour of Jane Roe and decriminalized abortion
throughout the United States.
Planned Parenthood v. Casey
- The court ruled that right to abortion prior to 'fetal viability' is a "fundamental right" protected by the Due Process Clause of the Fourteenth
- The court held that abortion is a 'privacy right' of a woman.
- Court also recognized the severe impact the state would impose on a
woman's physical & mental health by denying abortion, including the
financial burden in the upbringing of the unplanned child.
- The court rejected the plaintiff's argument, i.e. an absolute right to
abortion, and concluded that a state can regulate abortion if it is subject
to maternal health, maintaining medical standards, or preserving potential
- The court further created a trimester framework based on pregnancy to
regulate the state's interest in abortion by defining the rights of each
Further, the state may prohibit
abortions unless an abortion is necessary to save the life or health of the
- 1st trimester (conception to 12 weeks): during this time, a woman's
privacy interest is paramount; hence state cannot regulate abortion. It's up
to the decision of the woman herself to terminate her pregnancy. (absolute
right to women was given here)
- 2nd trimester (12 to 24 weeks): a state may regulate abortion if the
regulations are subject to the health of the pregnant person.
- 3rd trimester (24 to until the birth): at this time a 'fetus' becomes
viable; hence the state's interest in protecting the potential human life
outweighs the right to privacy of a woman.
- The majority also concluded that the 'strict scrutiny' standard was
relevant when reviewing restrictions on abortion since it is part of the
fundamental right to privacy.
 case reaffirmed the basic principle laid down
in Roe v. Wade, i.e. women have a fundamental right to obtain an abortion prior
to fetal viability, protected by the Due Process Clause of the Fourteenth
Facts Of the case:
The Pennsylvania Abortion Control Act of 1982 brought up five controversial
provisions for a person seeking an abortion, those were:
- Doctors were required to inform women considering abortion about its
potential negative impacts & risks on their health and woman's consent on
- A 24-hour waiting period was required before undergoing the abortion
- Married women were required to notify their husbands prior to abortion
- Minors seeking abortion were required to get the consent of at least one
- Certain reporting requirements were imposed on facilities providing
Several abortion clinics and physicians challenged these provisions on the
grounds that they were unconstitutional.
- Whether the decision delivered in Roe v. Wade should be overturned as
- Whether the challenged provisions of Pennsylvania's abortion statute
Whole Woman's Health v. Hellerstedt
- The U.S. Supreme Court, in a plurality opinion, reaffirmed the
"essential holding" of Roe v. Wade, which was the existence of a
constitutional right to abortion by implying the doctrine of stare decisis.
- The trimester framework was replaced by 'viability analysis of fetus' in
determining when the state's interests could outweigh the interests of a
pregnant woman and held that a state could prohibit abortion once a fetus
becomes viable unless the health of the mother was at risk.
- The 'strict scrutiny' standard of review required by the Roe case was
also replaced with the 'undue burden' standard to determine whether the
state regulations impose any substantial obstacle in the path of a woman
seeking an abortion before viability.
- The court upheld all the provisions of the Pennsylvania Abortion Control
Act of 1982 except one, the requirement of spousal notification as it was
found to be an undue burden and therefore unconstitutional.
, this case questioned the
validation and evaluation of the undue burden of two provisions:
'admitting-privileges requirement' and 'surgical-center requirement' of House
Bill 2 ("H.B. 2")
enacted by the Texas Legislature back in 2013.
Facts of the case
These two provisions were considered unnecessary regulations on doctors and
facilities that provided abortion. The "admitting-privileges requirement"
provided that a physician performing an abortion must have active admitting
privileges at a hospital located not further than 30 miles from the abortion
facility and the "surgical-center requirement" required an 'abortion facility'
to comply with the standards for ambulatory surgical centers under Texas law.
These restrictions were referred to as 'TRAP laws' ("Targeted Regulation of
The constitutionality of the statute was challenged by a group of Texas abortion
providers including Whole Woman's Health on the grounds that such provisions
resulted in a significant decline of abortion facilities from 42 to just 19 due
to the complexity and costs involved in compliance of both provisions.
- Whether both the disputed provisions of House Bill 2 (H.B. 2) were
- The U.S. Supreme Court by a 5-3 vote stated that both the challenged
provisions of Texas law H.B. 2 were unconstitutional because such
restrictions on the abortion facilities imposed an undue burden on women
seeking abortion rather than providing any significant medical benefits to
What significance did these cases bring to women's right to abortion?
Until the early 1900s, abortion was illegal in the U.S.A with exceptions among
few states that allowed abortion only to protect a woman's life. In 1967,
Colorado became the first state to decriminalize abortion in cases of rape,
incest, or in which pregnancy would lead to permanent physical disability of
woman. Later on California, Oregon and North Carolina also passed similar laws.
In 1970, New York legalized abortion up to 24th week of pregnancy and in the
same year, Hawaii became the first state to completely legalize abortions.
By the end of 1972, some states allowed abortion only in the case of rape or
incest, while others in cases when a patient's life was in danger . Prior to
Roe case, abortion was not considered a personal right and women didn't have
control over their unwanted pregnancies as per their wishes.
But after the Roe v. Wade (1973) case, the right to abortion became a
constitutional right and was provided federal protection. This landmark case
didn't completely legalized abortion in the nation, in fact it provided women an
absolute right to abortion only in the first trimester after which states could
interfere with reasonable regulations. This way it created a fine balance
between both women's rights and a state's interests.
The case of Planned Parenthood v. Casey (1992)
reaffirmed the right to
abortion as a constitutional right and modified the trimester framework with a
fetal viability test to evaluate the legality of abortion. The undue burden
standard was also established to determine which regulations by the states could
be unconstitutional. Whole Woman's Health v. Hellerstedt (2016) case concluded
that states cannot place restrictions on abortion services that create an undue
burden for women seeking an abortion.
Why is the abortion in the news again?
On 24th June 2022, the U.S. Supreme Court ruled out another landmark judgment in
Dobbs v Jackson Women's Health Organization  case that challenged
Mississippi's ban on abortion after 15 weeks of pregnancy. This case struck down
the constitutional right to abortion given to women until their first 24 weeks
of pregnancy (prior to viability of fetus), abandoning almost 50 years of
precedent of Roe v. Wade case.
How has Roe v. Wade been overturned?Facts of the case
In 2018, the Mississippi Legislature passed the 'Gestational Age Act', which
prohibited abortion after the first 15 weeks of pregnancy, well before fetal
viability. This act included exceptions for any medical emergency or "severe
fetal abnormality" but none for cases of rape or incest.
The State of Mississippi argued that the court should overturn Roe and Casey
because they are interpreting the constitution as it has no explicit mention of
the right to abortion. Counter to this, Jackson Women's Health Organization, the
only licensed abortion facility in Mississippi, challenged the constitutionality
of the act arguing that it is a complete ban on pre-viability abortion.
- Whether Mississippi's law banning all abortions after 15 weeks of
gestational age is unconstitutional?
- Whether the prohibitions on all elective abortion before viability are
The U.S. Court with a 6-3 vote:
- Upheld the Mississippi's ban by stating that both Roe and Casey were "egregiously wrong" from the start.
- Held that the right to abortion is not guaranteed by the constitution as
"The Constitution makes no reference to abortion, and no such right is
implicitly protected by any constitutional provision". Thus previous
landmark decisions in Roe v. Wade (1973) and Planned Parenthood v. Casey
(1992) were overruled, ending federal protection for abortion.
- Held that individual states will have the sole authority to regulate
access to abortion services.
This case marks the first time the Supreme Court ruled on the constitutionality
of 'pre-viability abortion' ban since the Roe v. Wade decision in 1973.
Aftermath of the Supreme Court's decision
The U.S. Supreme Court has removed the federal abortion protections upon which
women of the nation have relied for nearly half a century, therefore ending its
precedent which means individual states will now have the authority to regulate
abortion. This decision is being considered a "devastating setback" as it has
brought the status of women's right to abortion many decades back in time.
The judgment has overturned the access to abortion which could be performed at
any time before the viability of fetus, i.e. up to 24 weeks of pregnancy because
after that period a fetus can live outside the womb.
President Joe Biden described the court's decision as "realization of an extreme
ideology and a tragic error by the Supreme Court, in my view" .
The abortion ban has led to chaos across the country as some people are praising
the decision while others are protesting against the same. Most of the states
led by Republicans are looking forward either to completely banning abortion or
strictly restricting it, while Democrat-led states are in support of abortion
and have a liberal take on the termination of pregnancy.
According to a study by Guttmacher Institute, out of a total of 50 states, 26
are certain or likely to ban abortion, i.e. half of the U.S. In the anticipation
of the decision, out of those 26 states at least 13 had already passed 'trigger
laws' which were enacted immediately after the judgment in a few states, and in
others, it will be in the upcoming weeks.
These states include: Arkansas, Idaho, Kentucky, Louisiana, Mississippi,
Missouri, North Dakota, South Dakota, Oklahoma, Tennessee, Texas, Utah, and
Wyoming. While all these trigger laws have the same intent of banning abortion,
their implementation, timelines and other details may vary from state to state
According to The New York Times, by the end of June 2022, states that banned
abortion soon after the judgment include: Alabama, Arkansas, Missouri & South
Dakota with no exceptions for rape or incest, and Oklahoma with exceptions to
rape and incest. Some states like Arizona, Louisiana, West Virginia, Wisconsin,
Kentucky and Utah had existing bans on abortion which were temporarily blocked
by the court but may be enforced in the future.
States like Ohio and South Carolina have restrictive laws that prohibit abortion
after six weeks of pregnancy. The Texas Supreme Court has allowed a 1925 law
banning abortion to take effect and it also has a separate trigger ban, with no
exceptions for rape or incest. Idaho, Tennessee, Mississippi, North Dakota, and
Wyoming are expected to enact the trigger bans soon following the end of next
Who will be affected the most?
The residents of the states that will ban abortion will suffer the most
consequences as they will not have any access to abortion services. People
seeking an abortion will have to travel to other states where it will be legal.
Such travel distances will significantly increase as abortion seekers will have
to go to another state rather than nearby cities. This can become an obstacle to
abortion as travel distance may vary from a few miles to hundreds of miles and
women may end up carrying their pregnancies.
According to a study by Diana Greene Foster, a reproductive-health researcher at
the University of California, the poor women who will be denied an abortion are
more likely to live in poverty afterwards as women rarely choose to give the
child for adoption and such unplanned pregnancies can bring challenges to the
families with the burden of unwanted expenses of raising the child .
Furthermore, the states where abortion remains legal will also be affected. The
abortion service providers in these states will witness an enormous number of
patients at their facilities on a daily basis as more than half of the states
have already banned abortion, thus decreasing the number of abortion facilities
in the country. It will be a challenge to accommodate so many patients.
Various public-health researchers and economists claim that restricting abortion
access has negative consequences for pregnant people as denial of abortion may
affect their psychological and physical health as well as of the infant.
Prohibition of abortion access across numerous states of the country is likely
to cause severe health, financial and emotional consequences, especially for
people in marginalized communities. These bans will have severe impacts on
people who face discriminatory obstacles when accessing health care, those
having difficulty making ends meet, members of the LGBTQ community, younger
people, immigrants, people with low incomes, and people in rural communities.
Prohibiting abortions does not guarantee that demand for abortion or unintended
pregnancies will come to stop. Neither will it benefit one's health instead it
will create more stress and act as an obstacle for people who seek an abortion.
States like Alabama, Arkansas, Missouri & South Dakota have already passed laws
banning abortion even in cases of rape or incest.
According to a study held by Pew Research Centre, the majority of both men and
women in U.S.A. express their support for abortion of which 63% of women & 58%
of men are of the opinion that abortion should be legal. Even though the
majority of Americans are against overturning Roe, a majority also prefer the
combination of the right to abortion with restrictions but not up to an extent
completely banning it .
According to the U.S. Centers for Disease Control and Prevention, in 2019, 79%
of all U.S. abortions occurred prior to the 10th week of gestation; 93% occurred
prior to 14 weeks gestation . Some states have prohibited abortion after six
weeks of pregnancy which is generally long before many women become aware of
their pregnancies. Pregnancy is possible to be detected within about four weeks
from the first day of a woman's period and let's say if a woman detects her
pregnancy after four weeks and decides to have an abortion she will have only
two weeks to obtain it.
Justice Alito, who delivered the majority of decision in Dobbs v Jackson Women's
case that overturned Roe said, "The Constitution makes no
reference to abortion, and no such right is implicitly protected by any
constitutional provision" , but the question that arises here is that even
though there is no explicit mention of 'same-sex marriage' also in the U.S.
constitution, it is considered as a fundamental right. It was legalized in every
state of the U.S.A. by 2015.
- 410 US 113 (1973)
- Fourteenth Amendment of United State's Constitution
- 505 U.S. 833 (1992)
- 579 U.S. 582 (2016)
- 597 U.S.(2022); https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf
Award Winning Article Is Written By: Mr.Ravneet Singh Gill
Authentication No: AU221332633745-1-0822