I.    Roe v. Wade

          The U. S. Supreme Court assumed control over abortion law when it handed down its decision in Roe v. Wade, 410 U.S. 113, on January 22, 1973.  In the years since then, the Court's abortion jurisprudence has taken some twists and turns, but the surviving basic rules of Roe and its companion case, Doe v. Bolton, are as follows.  Needless to say, the Pro-Life Movement considers these rules to constitute what Justice White, dissenting from the Roe majority, called "an exercise in raw judicial power," with no support in the Constitution.  The following is a broad summary, not intended to provide all the nuances and fine points of the Supreme Court's abortion jurisprudence.

• According to the Court, the word "person," as used in the Constitution, does not include unborn human beings.
• Apart from the Constitution, the judiciary cannot say if the unborn are "persons" whom the law may protect, yet it is unconstitutional for the state legislatures and Congress to override the right to abortion by saying that they are.
• "Health" means whatever a doctor/abortionist wants it to mean.  As the companion case to Roe, Doe v. Bolton, 410 U.S. 179 (1973), states, the concept of "health" must include a woman's age, family situation, emotional and physical state, and social circumstances, all as considered by the abortionist.
• At all stages of a pregnancy, abortion can be regulated if the regulation enhances women's health.  Abortion cannot be regulated in any way which does not enhance a woman's health.  No abortion for health reasons can be forbidden.
• In short, abortion is legal from conception through birth if a doctor is willing to do the deed and say it was for a woman's health.

II. Planned Parenthood v. Casey

          In 1992, the Court handed down its decision in Planned Parenthood v. Casey, 112 S.Ct. 2791 (1992).  In that decision, the Court expanded on the surviving rules of Roe v. Wade as follows.  (Again, this is a broad summary, not a listing of all relevant details.)

• 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 Constitutional rights.
• Any regulation which is an "undue burden" on the right to abortion is unconstitutional and void.
• Certain regulations that formerly were not allowed under Roe were deemed constitutional under Casey, including a waiting period and required information to be given to women.  However, a regulation requiring that husbands be notified of their wives' intent to obtain an abortion of their baby was ruled unconstitutional as an undue burden on the wives' right to abort.

III.  Partial Birth Abortion/Infanticide Bans

          The U. S. Supreme Court considered one type of statutory ban on partial birth abortions in the case, Stenberg v. Carhart, no. 99-830  (June 28, 2000).  The Nebraska law at issue was struck down for two reasons.  First, it did not have a health exception.  But a health exception is a false issue in connection with infanticides, as these procedures truly are.  The AMA has written that there is no valid medical reason to perform partial-birth abortions, and the procedures present health dangers to the woman.  As is mentioned below in connection with viability, a health exception swallows the other rules that the Supreme Court has promulgated in the abortion field, so this reason really means that the Court will not allow the people, through legislators, to enact partial-birth abortion legislation.

          Second, in Stenberg, the Court acquiesced in the interpretation by lower federal courts of the scope of the Nebraska statute.  They held that the Nebraska statute covered more than the intended crime and outlawed "normal" abortions, especially dilatation and evacuation (D & E) abortions most commonly used in the third month of gestation.  Thus, under this interpretation, the law effectively created an "undue burden" on the woman's right to abortion, in violation of the Constitution as construed in Casey.  This ground is susceptible to being overcome by more precise drafting by the legislature, and Missouri has already attempted to do so.

          Missouri enacted a ban on partial birth infanticide (H.B. 427) on September 16, 1999, after a grueling contest in the Legislature to override the Governor's veto.  The essence of H.B. 427 is contained in its third section, as follows:  "A person is guilty of the crime of infanticide if such person causes the death of a living infant with the purpose to cause said death by an overt act performed when the infant is partially born or born."  The key terms of that sentence were defined in other portions of the statute, and a section making it explicitly inapplicable to other abortion procedures was included.

          On the day after the General Assembly overrode the Governor's veto, Planned Parenthood filed suit to have a federal court declare H.B. 427 to be unconstitutional. Reproductive Health Services of Planned Parenthood v. Nixon, case no. 2-99-4231-CV-C (W.D. Mo.)  In a welcome turn of events, a federal appeals court stayed the federal litigation while state court litigation is proceeding.  In the state court action, the State of Missouri seeks a declaration that the statute does not impinge on regular abortion procedures. State of Missouri v. Reproductive Health Services, case no. 004-00008 (St. Louis City Circuit Court).  On December 5, 2000, the state circuit court issued a mixed ruling.  The court construed the statute to imply a health exception within a broader clause in the statute allowing those charged with infanticide to have all defenses otherwise available by law.  Without such an implied health exception, the judge held, the statute would be unconstitutional under the rulings of the U. S. Supreme Court.  The state court also ruled that only the abortion procedure known as "D & X abortion" was prohibited by the statute, which takes away one of the main arguments of the abortionists.  It is likely that an appeal will be filed, perhaps by both sides, and that the state case will reach the Missouri Supreme Court in due course.  After the state supreme court rules, the federal court litigation will resume to determine the federal constitutional questions.

        If the circuit court's interpretation of H.B. 427 is upheld by the Missouri Supreme Court, then it is likely that no language which attempts to ban partial birth abortions will ever be upheld.  Roe v. Wade and Planned Parenthood v. Casey will turn out to mean, as Stenberg v. Carhart indicated, that even these unspeakable crimes are protected under the United States Constitution.
 

IV.  The Irrelevance Of Viability

          Although Roe v. Wade and Planned Parenthood v. Casey contained much language dealing with the supposed significance of viability, in the end, the actual holdings left viability a meaningless concept.  In Roe, the court held that a state may, if it chooses, protect viable unborn babies "except when [abortion] is necessary to preserve the . . . health of the mother."  410 U.S. at 163-64.  But in view of the expansive definition of "health" noted above, far beyond the meaning which most citizens would give the term, no state law may prevent an abortion if a doctor says it is for a woman's health.

          Casey did not change this principle of law.  Although Casey's language can leave the impression that it was allowing states to regulate post-viability abortions more than pre-viability abortions, it did not in fact allow anything of the sort.  When it came to post-viability abortions, Casey simply quoted with approval the principles of Roe and Doe described above.  112 S.Ct. at 2821.  The health exception was preserved in its full scope, an exception which swallows the rule.

          To see how abortionists view the matter, it is instructive to consider what the author of the standard textbook on abortion procedures, Dr. Warren Hern of Colorado, said in connection with a proposed exception for partial birth abortions to avert "grievous" physical harm to the woman.  Dr. Hern said, "I will certify that any pregnancy is a threat to a woman's life and could cause grievous injury to her physical health."   (The Record, Bergen County, N.J., May 14, 1997) (emphasis supplied).  With a willing doctor, therefore, no post-viability abortion may be prevented by a state.
 

V.  Equal Rights Amendment

        As the law stands now, the right to abortion is not grounded in any specific language of the U. S. Constitution, but only in certain general language of a portion of the Fourteenth Amendment which guarantees citizens the right not to be deprived of liberty without due process of law.  An Equal Rights Amendment (ERA) would provide another provision of the Constitution on which to ground the right to abortion, one which the courts would probably use to wipe out most, if not all, of those few regulations which are presently allowed.  (See the separate article on current Missouri abortion law.)  To regulate abortion, it is reasoned, would be to aim a prohibition only at women, because men would not be affected, and this would violate a federal ERA.  (The fallacies of this type of reasoning are not addressed here.)  This type of reasoning has been used by state courts in interpreting state constitutions.  (For example, New Mexico Right to Choose/NARAL v. Johnson, 975 P.2d 841 (N.M. 1998), cert. denied, 119 S.Ct. 1256 (1999).)  There is no reason to believe that the federal courts would not use the same type of reasoning in respect to an ERA, if ratified by the states as an amendment to the U. S. Constitution.  This would double the work now facing the Pro-Life Movement in connection with ultimately changing the law to protect all persons from the first moments of their existence, and it would wipe out all the gains of the past quarter-century of pro-life work in the legislative field.  The ERA thus represents a dire threat to the Pro-Life Movement.

        There are efforts in Missouri and other states to have the state legislature ratify the Equal Rights Amendment which was proposed by Congress to the States back in 1972.  The number of states required to ratify is 38 (three-fourths of the number of states), but only 35 ratified it before the deadline established by Congress expired (and it was extended beyond the original deadline, still without success).  There is unfortunate historical precedent which indicates that Congress may validate a ratification of a constitutional amendment, no matter whether ratification was accomplished within the rules established by Congress or not.  Because of the threat posed to the Pro-Life Movement by the ERA, it will be strenuously opposed for as long as it takes to consign it to the ashcan of history.
 

Conclusion

        It is easy to summarize the general principle of abortion law.  If a doctor is willing to perform an abortion, it is legal, at any time in the baby's development.  Period.  Until the U. S. Supreme Court changes its abortion jurisprudence, or the people amend the U. S. Constitution, there is nothing citizens can do about this general principle of law.  The Pro-Life Movement must turn its attention to safeguarding the health of women--abortionists are the dregs of medical doctors, and they are notorious for malpractice--and to influencing the choice regarding abortion toward life and away from death.