Abortion

Few sociopolitical issues polarize contemporary American politics as much as abortion. Although most polls indicate that a majority of Americans support the legality of abortion, a host of corollary issues remain quite controversial: These include parental and/or spousal notification, the role of states and the courts in crafting abortion policy, and the moral and ethical questions invoked by various abortive procedures such as “partial birth.” Contemporary abortion discourse remains emotionally charged on both sides with abortion rights advocates arguing that reproductive choice is a fundamental right of all women and opponents of the practice claiming that nearly any form of abortion for nearly any reason is “murder.”

The conflict over reproductive choice in the United States dates back to 1821 when Connecticut became the first state to ban abortion. An array of various state and local laws prohibited or otherwise restricted abortions for the next century and a half, yet the controversy remained somewhat muted because many of these laws were seldom enforced by local officials. In the 1950s and 1960s, many states began to liberalize their abortion laws in light of the American Law Institute's proposal that exceptions to the proscription of abortion should be made in cases of rape, incest, health of the mother, or fetal deformity. Events such as the thalidomide (a popular tranquilizer shown to cause severe birth defects) scare, reports of “back alley” abortions, and the work of a loose confederation of physicians and women's rights activists further [Page 3]influenced many states to repeal or modify their abortion statutes. In the 1960s, the American Medical Association eventually endorsed these efforts after vigorous debates among its membership about the ethical issues involved and the medical utility of abortion. These events permanently forced the issue into the national consciousness.

In 1970, “Jane Roe” (Norma McCorvey) sued the district attorney of Dallas County in Texas claiming that the vagueness and breadth of the state's criminal abortion statute—which permitted abortion only in cases of imminent danger to the mother's life as defined by a physician—violated her privacy rights implicitly guaranteed by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. Roe sought to terminate a pregnancy which she claimed was the result of rape—a claim she later recanted. The District Court for the Northern District of Texas permitted a Texas physician then under prosecution for providing abortions (James Hallford) and a married couple challenging a similar Georgia statute (John and Mary Doe) to join the suit. While the District Court found for Roe, it refused to grant the injunction against the state of Texas sought by the plaintiffs, prompting an appeal to the Supreme Court. The case was argued before the High Court in December 1971 and reargued in October 1972. In a 7–2 decision, the Court held the Texas law to be unconstitutional in view of the Fourteenth Amendment's protection of personal liberty, which Justice Blackmun argued was “broad enough to encompass a woman's decision” to terminate a pregnancy within the first trimester.

The political effects of the Roe ruling were tremendous. Aside from affirming “a right to choose,” which invalidated the remaining state laws restricting abortion, the ruling federalized the creation of abortion policy. In short, Roe (along with the Supreme Court's decisions in Webster v. Reproductive Health Services in 1989 and Planned Parenthood v. Casey in 1992) initiated a new era in abortion politics in which states, the federal government, and the courts would all participate in policymaking. The decades since have produced intense judicial and legislative efforts from both sides of the controversy. The effort to ban late-term or “partial birth” abortions is among the most recent and prominent of these efforts. In the mid-1990s, abortion opponents such as the National Right to Life Committee and the Family Research Council waged an all-out lobbying offensive for state and national legislation banning the procedure. Groups such as the National Organization for Women and Planned Parenthood opposed these efforts with equal vigor. President Clinton twice vetoed such bans citing concerns over a lack of maternal health exceptions. In 2003, abortion opponents again took up the fight in the Republican-controlled Congress and successfully lobbied for passage of the Partial-Birth Abortion Ban Act of 2003, which George W. Bush signed in March of that year. However, the legislation was not enforced prior to 2007 because of federal court challenges such as Gonzales v. Carhart. In April 2007, in Gonzales v. Carhart, the Supreme Court upheld the validity of the Partial-Birth Abortion Ban Act on its face but ruled that the statute might be subject to further challenge as applied to particular situations. As such, the abortion controversy will continue to be engaged at every level of government for the foreseeable future.

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