CURRENT LAW OF ABORTION AS ANNOUNCED BY THE FEDERAL COURTS

James S. Cole, General Counsel

Updated October 16, 1998

This page offers a concise outline of the cases that matter in current abortion law. Those cases which were important in the past but no longer have relevance have been omitted. The reader should realize that this is just a bare outline of the conclusions of the cases. The Court's reasoning is not meant to be delineated here. Journals abound in which the Court's rationale has been dissected and commented upon, and interested readers may peruse the Index of Legal Periodicals for citations.

Also, because this page is for Missouri Right to Life, those federal decisions which govern Missouri are highlighted. Many other decisions from around the country have been omitted, unless they are believed to offer indications of how the federal courts here would rule in similar cases.

A. Abortion prohibition and regulation in general

1. Roe v. Wade, 410 U.S. 113 (1973)¹

a. Abortion is a fundamental Constitutional right, founded in the concept of "privacy".

b. According to the Court, the word "person," as used in the Constitution, does not include unborn human beings.

c. Apart from the Constitution, although the judiciary cannot say if the unborn are "persons" whom the law may protect, it is unconstitutional for the state legislatures and Congress to override the right to abortion by saying so.

d. At all stages, abortion can be regulated if the regulation enhances women's health. After viability is reached, abortion can be regulated, but only in ways which do not impair a woman's health. No abortion for "health" can be forbidden.

2. Doe v. Bolton, 410 U.S. 179 (1973):  "Health" means whatever a doctor wants it to mean, and includes a woman's age, family situation, emotional and physical state, and social circumstances.

3. Planned Parenthood v. Casey, 112 S.Ct. 2791 (1992):

a. Abortion is a "liberty interest" protected by the due process clause of the Constitution. The "liberty interest" belongs to the woman alone. The other members of the family and the unborn have no rights.

b. Any regulation which is an "undue burden" on the right to abortion is unconstitutional and void.

c. Regulation found in Casey to be an "undue" burden, thus void:

i. Requirement that the husband of a pregnant woman be notified in advance of her intent to have an abortion.

d. Regulations found in Casey not to be "undue" burdens, thus enforceable:

i. Requirements that the woman be told the following:

• Nature of the abortion procedure, its risks and alternatives, to the extent a reasonable patient would consider these things material to her decision;

• Risks of carrying the baby to term;

• Probable gestational age of the baby;

• That state-published materials exist which describe the development of the baby, give information on medical assistance for childbirth and on child support, and list adoption and alternative services.

ii. Waiting period of 24 hours.

iii. Requirement that at least one parent of a pregnant teen give consent to the abortion, unless the teen obtains a court order approving the abortion. (The parents of a pregnant teen need not be notified of the court proceeding.)

iv. Certain recordkeeping requirements.

B. Use of government money or facilities to fund abortions

1. Harris v. McRae, 448 U.S. 297 (1980); Beal v. Doe, 432 U.S. 438 (1977); Maher v. Roe, 432 U.S. 464 (1977):

a. The federal constitution does not compel the federal government or any state to fund abortions.

b. Note, however, that the highest state courts in certain other states have ruled that their state constitutions do compel the state governments to fund abortions.

2. Poelker v. Doe, 432 U.S. 519 (1977)

a. A local hospital may refuse to allow abortions on its premises. (This case was brought against the City of St. Louis.)

b. A few years later, the Eighth Circuit ruled that when there is no other hospital available in the locality and the mothers pay for the abortions, then a public hospital does have to allow abortions on its premises. Nyberg v. City of Virginia, Minn., 667 F.2d 754 (8th Cir. 1982). In light of the Webster case cited below, this case probably no longer represents good law, if it ever did.

3. Webster v. Reproductive Health Services, 109 S.Ct. 3040 (1989)

a. The State may forbid the use of any money that passes through the state treasury, whether it comes first from the federal government or another source besides state taxes, for the purpose of performing abortions.

b. The principle that the state may forbid the use of state money, facilities, or employees for performing abortions was reaffirmed.

c. However, the Attorney General of Missouri stipulated that a statute forbidding the use of state money, facilities or employees from "encouraging or counseling" a woman to have an abortion applied only to the fiscal officers of the state and was not directed to abortionists, clinics, and doctors. In light of that authoritative interpretation, the challenge to that part of Missouri's 1986 statute was dropped. The prohibition now represents a dead letter that restricts nothing.

4. Rust v. Sullivan, 111 S.Ct. 1759 (1991)

a. The Constitution allows a government to forbid abortion referrals from government-funded family planning programs to abortion clinics.

b. The Constitution allows a government to require that family planning programs funded by the government shall be kept independent of abortion facilities by the use of separate facilities, personnel, and accounting records.

5. Planned Parenthood v. Arizona, 789 F.2d 1348 (9th Cir. 1986); Planned Parenthood v. Minnesota, 612 F.2d 359 (8th Cir. 1980); Planned Parenthood v. Kivlahan,

a. The Constitution does not allow a government to make organizations ineligible for family planning subsidies because they perform abortions. It is a violation of equal protection of the laws under the 14th Amendment.

b. These decisions are reconciled with Rust v. Sullivan by noting that the federal regulations challenged in Rust did not disqualify the abortionists completely; the regulations only required them to keep the abortion side of their operations separate from the family planning side, and further forbade referrals from the family planning side to the abortion side.

¹ The citation following the case name (e.g., "410 U.S. 113" gives the set of books where the decision is printed, the volume and first page number of the case, the court, and the year of the decision. For a citation like "410 U.S. 113," the volume number is 410; the set is "United States Reports," and the initial page is 113. For a citation like "106 S.Ct. 2169," the decision is found in vol. 106 of the "Supreme Court Reporter," beginning on page 2169. A citation like "667 F.2d 754" is found in volume 667 of the "Federal Reporter, Second Series," beginning on page 754. The federal appellate courts are designated as "___ Cir.", as in "8th Cir."