Abortion is a medical or surgical procedure to deliberately end a pregnancy. In Roe v. Wade (1973), the US Supreme Court ruled that the Constitution protects a woman's right to an abortion prior to the viability of a fetus. A woman may exercise that right at her own discretion through the end of the first trimester, generally around the twelfth week of pregnancy. The ruling allows states to regulate but not completely restrict a woman's access during the second trimester. During the third trimester, after viability, the state can restrict all abortions unless the mother's health or life is in danger. However, in May 2022, a court draft opinion was leaked indicating that the solidly conservative court majority was planning to overturn the decades-old decision, which would allow states to create their own laws on abortion.
The issue of abortion remains highly controversial, however, and several states have introduced restrictions that undermine that ruling. Abortion restrictions have often been challenged in federal courts. Some, such as the denial of state funds for the procedure, have been upheld. Others, such as those requiring spousal consent for an abortion, have been struck down.
Opponents of abortion typically object to the practice for religious or ethical reasons, contending that the procedure amounts to the killing of what they consider to be a human life. Those who support access to abortion believe it is a human rights issue, as a woman should be able to control medical decisions about her own body and life. Those opposed to abortion generally refer to themselves as pro-life, while those who support access to safe, legal abortions typically identify as pro-choice. Differences of opinion persist within both movements. Some pro-life activists may condone abortions in cases of rape or incest, while others take an uncompromising stance, believing that all abortion is murder. Within the pro-choice movement, some activists contend that no restrictions should be placed on abortions, while many who identify as pro-choice support laws that require a waiting period before the procedure can be performed or laws requiring minors to obtain permission from their parents.
In many states throughout the nation, activists and policy makers have sought to change the legal status of reproductive rights. In 2020 lawmakers in twelve states tried to use the COVID-19 pandemic as justification to temporarily ban abortion as a "nonessential service." The following year, various states introduced new restrictions on abortion. More than one hundred abortion restrictions were implemented in 2021, making it the most restrictive year in US history for abortion access since Roe was decided. Americans remain divided on the issue of abortion. According to a Pew Research Center 2021 poll, 59 percent of American adults say abortion should be legal in all or most cases and 39 percent say it should be prohibited entirely or in most cases. Poll results also showed a wide partisan divide on abortion, with 80 percent of Democrats and Democratic-leaning independents saying that abortion should be legal in all or most cases compared to only 35 percent of Republicans and Republican-leaning independents who say the same.
- Abortion refers to a procedure to terminate a pregnancy. The term is typically applied to a planned medical or surgical procedure.
- People who support legal access to abortion typically identify as pro-choice, while those who support bans and heavy restrictions identify as pro-life.
- Medical abortions can take place during the first trimester of a pregnancy. In these procedures, the patient takes a combination of drugs to induce an abortion.
- Surgical abortions are more common than medical abortions. Several factors, such as local laws or the health of the woman, may determine which type of procedure is performed.
- In 1973 the US Supreme Court ruled in Roe v. Wade that state laws banning abortion during the first trimester of pregnancy are unconstitutional. Reproductive rights advocates have since challenged subsequent restrictions placed on abortion in federal court.
- Passed in 1976, the Hyde Amendment forbids the use of federal funds for abortions except under cases of rape, incest, or in which continuing the pregnancy would threaten the woman's health.
- In 2021 the US Supreme Court heard arguments on cases related to strict abortion laws implemented in Texas and Mississippi that could overturn the landmark abortion rights decision in Roe v. Wade.
Surgical and Medical Abortions
Most abortions take place within the first trimester of pregnancy. There are two types of abortion, surgical and medical. Medical abortion uses medication to terminate the pregnancy.
The most commonly performed surgical abortion procedure is suction abortion, also referred to as vacuum aspiration, which involves removing tissue from the uterus through a thin tube. The procedure is less invasive than surgeries at later stages of pregnancy that require labor to be induced. Health care providers generally consider first-trimester surgical abortions performed by trained medical professionals to be among the safest and simplest forms of surgery. Data from the US Centers for Disease Control and Prevention (CDC) suggests that many fewer women die from legal abortions than from childbirth or many other common procedures, leading many medical experts to conclude that abortion is safer than giving birth in the United States.
Abortions achieved with medication instead of surgery are called medical abortions and are considered safe and effective until nine weeks after the last menstrual period. The most commonly used drugs for medical abortions in the United States are mifepristone and misoprostol, taken in sequence as prescribed by a health care provider. In such cases, patients are first directed to take mifepristone, also referred to as RU-486. This drug blocks the body's natural production of progesterone, an essential pregnancy hormone. The patient takes the second pill, misoprostol, two days later. This drug causes the uterus to contract and expel the embryo. Medical abortions are slightly less effective than surgical abortions but carry a smaller risk of infection. Health care professionals caution that medical abortions should not be confused with emergency contraception, a type of birth control pill used after unprotected sexual intercourse that serves to prevent, not terminate, pregnancy.
In 2015 Arizona passed legislation requiring doctors to inform patients that medical abortions could be interrupted or "reversed" within two days after taking the mifepristone pill if the patient replaced the second abortive medication with a dose of progesterone, the chemical that mifepristone stops the body from naturally producing. A lawsuit prevented the law's enactment, asserting a lack of scientific evidence supporting the claim that medical abortions are reversible. In 2016 the governor repealed the law due to ongoing legal challenges. However, similar legislation has been passed in Arkansas, Idaho, Kentucky, Nebraska, North Dakota, Oklahoma, South Dakota, and Utah, despite many health care professionals calling such claims irresponsible and insisting that no medical evidence suggests the process can be reversed. In 2019 researchers at the University of California, Davis, prematurely ended a study into the effectiveness of using progesterone in this manner after a quarter of the study's participants required hospital treatment for severe vaginal bleeding. The available data showed no indication that the hormone reversed the effects of a medical abortion.
Roe V. Wade
Abortions were commonly performed in the United States at the time of its founding and were not restricted by law until Connecticut passed the first anti-abortion law in 1821. Until the Roe v. Wade ruling in 1973, there was no federal standard for abortion laws, which were left to the discretion of state legislatures. By 1967 forty-nine states and the District of Columbia had classified abortion as a felony crime in most cases. That same year, however, Colorado passed a law that allowed women to seek voluntary abortions. Several states followed Colorado in liberalizing their abortion laws. By 1973 laws prohibiting abortions had been repealed in four states and loosened in fourteen. In states where abortions were prohibited by law, women who wished to terminate their pregnancies sought out illegal abortions that were provided by health care workers who risked jeopardizing their careers or were performed by individuals without the proper skills or tools to perform the procedure safely.
In Roe v. Wade, the Supreme Court ruled that restrictive abortion laws are unconstitutional and violate a woman's right to privacy, as implied by the Due Process Clause of the Fourteenth Amendment. The court's decision also determined that an embryo or unviable fetus is not a person in the legal sense. The ruling established that the decision to terminate a pregnancy during the first trimester was the sole decision of the woman and her physician. The decision also permitted state governments to impose regulations for abortions during the second trimester and to ban abortion after the fetus has reached viability except in cases where the mother's health is endangered. Viability refers to a fetus's ability to survive outside of the womb. The point at which viability is achieved during a pregnancy remains a topic of debate, though it is usually accepted as near the end of the second trimester, at around twenty-four weeks. The ambiguity of the term contributes to confusion over the constitutionality of state abortion restrictions. Similarly, all state legislatures do not share the same definitions for conditions that qualify a pregnancy as endangering the health of the mother.
In Doe v. Bolton, a companion case to Roe v. Wade decided on the same day, the Supreme Court reaffirmed its decision in Roe v. Wade by prohibiting laws that require admission to a hospital, approval by a hospital abortion committee, a second and third medical opinion, or legal residence in a state before an abortion can be performed. The decision also extended the definition of what posed a health threat to the mother when performing a post-viability abortion by allowing a health care provider to consider such factors as the woman's age and emotional and psychological health. The decisions in these two cases contributed to a notable decrease in mortality rates among pregnant women.
The Supreme Court has heard several cases that have challenged its ruling in Roe v. Wade. In Planned Parenthood v. Danforth (1976), the Supreme Court ruled against several restrictions imposed by Missouri's abortion laws, thus expanding access to abortion. One year later, however, the court ruled in Maher v. Roe that state governments could choose to deny public funds for an abortion, granting the government additional control over reproductive health care. The Maher v. Roe decision took advantage of the Hyde Amendment, a piece of legislation passed by Congress in 1976 that excluded abortion from the list of medical services provided and covered through Medicaid, the federal and state government program that subsidizes medical costs for patients with limited financial means.
Access to Abortion
Many state legislatures have introduced laws that place additional regulations on abortion providers that pro-choice activists argue result in restricted access to abortions. Some of these laws included provisions that required the examination rooms in which the procedure would be performed to be a certain size and width. Other laws required abortion providers and facilities to be affiliated with a hospital or that abortions be performed within a certain distance from a hospital. Pro-choice groups refer to these laws as Targeted Regulation (or Restriction) for Abortion Providers (TRAP) laws.
Opponents of TRAP laws argue that they place undue burdens on patients and health care providers in violation of the Constitution. When states enact such laws, abortion clinics must close if they are unable to comply with the regulations. In 2016 the Supreme Court reviewed a bill from Texas that imposed regulations on abortion providers in Whole Woman's Health v. Hellerstedt. The court ruled that the provisions required by the Texas bill did not produce enough medical benefits to justify the imposition placed on women seeking abortions. The Supreme Court similarly ruled a 2014 Louisiana law to be unconstitutional in June Medical Services, LLC v. Russo (2020).
The use of government funds has also been a factor in the abortion debate. Title X of the Public Health Service Act of 1970 provides grants for family planning programs. However, variations of the Hyde Amendment prohibit the use of federal funds for abortions except under special circumstances. While Planned Parenthood and other health care providers that offer abortions receive federal funding, these organizations use this money to provide health care services other than abortions. Federal restrictions announced by President Donald Trump's administration in May 2018 withheld federal funds from organizations that provide counseling, health information, or referrals about abortion, or share finances with abortion providers. Critics characterized the policy as a "domestic gag rule," arguing that such restrictions undermine patient care and violate the rights of both patients and health care providers. In February 2020 the Guttmacher Institute reported that the policy change had resulted in nearly one thousand clinics leaving the Title X family planning network. In October 2021 the Biden administration announced a reversal of the policy. The new rule, which allows health care providers receiving federal funds to provide abortion counseling, went into effect in November 2021.
Crisis pregnancy centers (CPCs) are nonprofit organizations that seek to deter women from terminating unintended pregnancies. They have faced legal challenges as reproductive rights supporters contend that they often mislead women seeking abortions with deceptive ads and purposefully providing inaccurate information. In 2015 California passed a law to require CPCs to provide clients with information about family planning, prenatal care, and abortions, as well as provide evidence of their medical licensing status of the facility and its staff. However, the Supreme Court ruled in National Institute of Family and Life Advocates v. Becerra (2018) that the California law violated constitutional free speech protections.
Activists founded the National Right to Life Committee, the country's oldest pro-life organization, in 1968 in response to states liberalizing their abortion laws. The modern pro-life political movement was further galvanized in the wake of the Roe v. Wade decision. Americans United for Life, founded in 1971, created a legal defense in response to the Supreme Court's ruling. In 1974, in protest of the one-year anniversary of the Supreme Court's decision, approximately twenty thousand activists marched together in Washington, DC, in the March for Life, the first in what has become an annual tradition for pro-life activists. Critics of the court's decision assert that unborn children are legally considered persons in other situations. Unborn children have the right to inherit property, for instance. Likewise, if a fetus is wrongfully destroyed, such as in the murder of a pregnant woman, the person at fault can be charged with manslaughter in some states. Critics argue that these inconsistencies reveal the decision's lack of legal foundation.
The pro-life movement has given rise to a network of fervent activists, including those who hold public demonstrations outside of health care facilities that provide abortions. Protesters at abortion clinics often brandish signs with images of fetuses intended to disturb witnesses and shout condemnations and threats of violence toward doctors and patients entering these buildings. In response to these incidents, Congress passed the Freedom of Access to Clinic Entrances (FACE) Act in 1994, which made blocking the entrances of places providing abortion counseling or services a federal offense punishable by fines and imprisonment.
Some anti-abortion activist groups adopted extremist tactics to promote their cause. Members of the militant pro-life organizations Operation Rescue, Operation Save America, and Army of God have been involved in incidents of domestic terrorism including the bombing of abortion clinics and the aggressive harassment of health care workers who provide abortions. In several cases, doctors who provide abortions have been murdered by pro-life activists. Some pro-life activists have secretly filmed abortion providers as they discuss the services they provide. The videos have been used in efforts to discredit abortion clinics and to create misinformation campaigns alleging unethical and criminal behavior.
Efforts to Overturn Roe V. Wade
A group of conservatives and libertarians founded the Federalist Society in 1982 to create a professional network that would support and promote judges who shared a similar legal vision, which includes the overturning of Roe v. Wade. The Trump administration nominated several members of the society as federal judges, including Supreme Court justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. As of November 2021, six of the nine Supreme Court justices were members of the Federalist Society. This consolidation of power on the country's highest court has sparked concern that the court will uphold state restrictions on abortions with the possibility of the Roe v. Wade decision being overturned.
Encouraged by the prospects of a conservative majority in the Supreme Court, lawmakers in several states have advanced more restrictive anti-abortion legislation, including many laws intended to prohibit abortions before the end of the first trimester. Such restrictions contradict the Supreme Court's Roe v. Wade ruling that state governments cannot interfere with the decision-making process of women and their health care providers during that pregnancy period. In a direct challenge to Roe v. Wade, Mississippi passed a law in 2018 that made most abortions illegal after fifteen weeks, much earlier than the threshold established by the Supreme Court and prior to viability or even the development of the fetal heart. Further, the law does not allow exceptions for cases of rape or incest. The Supreme Court heard a case challenging the constitutionality of the Mississippi law in December 2021.
In 2019 Georgia, Kentucky, and Ohio outlawed abortion after a "fetal heartbeat" is detected. Reproductive health doctors consider this terminology misleading, as they describe the noise heard as the electrical activity of the ultrasound machine rather than a heartbeat produced by a functioning heart. The Kentucky law was temporarily blocked by a federal judge shortly after being signed into law. Other states have passed or introduced similar pieces of legislation, many of which have been struck down in federal court.
In May 2019 Alabama's governor signed a bill passed by the Alabama Senate that would amount to an almost complete ban on abortion, with no exceptions for victims of rape or incest. Doctors who perform abortions in the state could be charged with a Class A felony and subject to up to ninety-nine years in prison. It was expected that the bill would be challenged in federal courts before it could take effect and would potentially make its way to the Supreme Court. In October 2019 a federal court blocked the law from going into effect. As of 2021, Alabama's appeal of the federal decision was ongoing.
Additional state laws have proposed changes to how health care providers deliver abortion services. Changes included imposing time-consuming reporting requirements for facilities that provide abortions and forbidding doctors from prescribing medical abortions via telemedicine. In contrast, lawmakers in some states have introduced legislation that would safeguard the right to legal and safe abortions if Roe v. Wade is overturned. In 2019, for example, New York passed the Reproductive Health Act, which removed several restrictions, decriminalized abortion, and limited government interference with the decisions of women and their health care providers.
Critical Thinking Questions
- What are some examples of state laws that made abortion counseling and services more difficult to access? Do you think these laws violate the Supreme Court's ruling in Roe v. Wade?
- Under what circumstances, if any, do you think abortion should be legal? Explain your answer.
- In your opinion, should access and restrictions to abortion be equal throughout the United States under a single federal standard? Why or why not?
Reproductive Rights Under Attack
In 2020 the COVID-19 pandemic prompted new challenges to reproductive rights. Some lawmakers used emergency health measures to categorize abortion as a nonessential health procedure. The increasing number of restrictions on abortion access correlated with a growing number of independent abortion clinic closures. Between 2012 and 2020, there was a 34 percent decrease in the number of independent abortion clinics. Financial difficulties and other obstacles to operating during the COVID-19 crisis led a number of clinics to close their doors. Clinic closures, in addition to the rise of abortion restrictions, have made it more difficult for women to access abortion and other reproductive health services. In its research, the Guttmacher Institute has found no correlation between changes in the number of clinics that provide abortion services within each state and increasing or declining state abortion rates.
The state of Texas passed a law in May 2021 prohibiting abortions after six weeks, which is when state lawmakers maintained that a "fetal heartbeat" could be detected, causing medical experts to again criticize such language and laws as misleading and medically inaccurate. The Texas law became the strictest abortion law in the country to date, not allowing for any exceptions after six weeks except for medical crises in which the life of the mother is at risk. The law makes it more difficult to obtain abortion services because many women do not find out that they are pregnant until after six weeks. The ban relies on private citizens for enforcement instead of the state government by allowing anyone in any state to file a civil suit against any person who helps a woman get an abortion in Texas. Texas lawmakers aimed the legislation at abortion providers by making them liable for performing abortion services after six weeks. The law has prompted some providers to stop abortion services altogether to avoid possible litigation. Pro-choice advocates worry that if federal courts allow the Texas law to remain in place, this will encourage conservative lawmakers in other states to pass stricter abortion policies.
In November 2021, the US Supreme Court heard arguments surrounding the Texas law's authorization to allow private citizens to bring civil lawsuits for performing or aiding abortion procedures after six weeks. In December 2021, in addition to hearing oral arguments in the Mississippi abortion law case, the Supreme Court upheld a previous ruling that refused to block the Texas law from taking effect while legal challenges to its constitutionality advanced. The court's rulings on these laws were expected in summer of 2022, but in May 2022, a court opinion signaling that the conservative court would overturn Roe v. Wade was leaked to the Politico news organization. Though the opinion was not final, many believed a ruling in favor of Texas or Mississippi would overturn Roe v. Wade. The final rulings in the Texas and Mississippi cases will have long-lasting impacts on abortion access throughout the country, as each state will be able to make their own laws governing abortion. Some already have trigger laws in place that will ban abortion entirely if Roe v. Wade is struck down.