Abortion: Legal and Regulatory Issues

Anita L Allen. Bioethics. Editor: Bruce Jennings, 4th Edition, Volume 1, Macmillan Reference USA, 2014.

Most contemporary legal systems regulate the practice of induced abortion. Governments around the world regulate whether, when, why, and how the estimated 43 million annual abortions occur. In some countries abortion is governed primarily by national laws; in others abortion is governed mainly by state or regional laws. Belief that abortion is unsafe, irreligious, immoral, unjust, or genocidal has tended to push regulation in the direction of laws that expressly prohibit some or all abortions. Convictions that abortion can alleviate overpopulation, avert economic hardship, protect women’s health, promote sex equality, or eliminate undesirable progeny have tended to produce laws that permit, guarantee, or even compel abortion. More than 75 percent of the world’s population lives in countries in which abortion is legal to protect the physical health of the pregnant woman (with many living in countries in which abortion is legal to protect the woman’s mental health), even in cases in which the life of the pregnant woman is not at stake.

An international survey of existing law reveals four basic patterns or models of express abortion regulation:

A model of prohibition,
A model of permission,
A model of prescription,
A model of privacy.

Under the model of prohibition, the laws of a jurisdiction punish most or all abortions as criminal offenses, as in Ireland and Indonesia. In Ireland abortions are banned other than to save the life of the pregnant woman. In other countries with prohibitory laws, such as Indonesia, Brazil, and Mali, abortions can be permitted to save the life of the pregnant woman or in cases of rape or incest. Under the model of permission, laws permit abortions that meet criteria and conditions established by the government, as in Germany, Italy, England, India, and Zambia. In Germany women face counseling and waiting period requirements for otherwise permitted early abortions. In the United Kingdom excluding Ireland, abortion for health and disability reasons is lawful up to twenty-four weeks, but a woman must obtain the approval of two medical practitioners. Under the model of prescription, laws specifically require or encourage the termination of pregnancies falling into certain specific categories, as in the People’s Republic of China. Finally, under the model of privacy, laws restrain the government from enactments that criminalize or severely restrict access to medically safe abortions, as in the United States and Canada. The model of privacy treats abortion decisions as substantially a matter of private choice rather than public law. In some countries using models of permission, prescription, and privacy, including the United States, China, France, the Russian Federation, and South Africa, women are not required by law to provide officials or physicians with a state-approved reason for routine legal abortions.

Abortion law is subject to change from one era to the next. Countries under the sway of the model of prohibition in one generation have moved toward the models of permission or privacy in subsequent generations. For example, when the US Supreme Court ruled in Roe v. Wade (1973) that the Constitution bars statutes categorically criminalizing all abortions, it announced a national standard for state and federal law that ushered out the model of prohibition and ushered in the model of privacy. Abortion law can also change from liberal to restrictive and back again in response to political developments and judicial interpretations of constitutional principle. Thus Poland adopted more restrictive abortion laws after democratic elections in 1989; greatly liberalized its law in 1996; and then in response to an adverse constitutional court ruling overturning the permissive 1996 law, quickly revised its law in 1997. Under a 1997 act of Parliament, Poland permits abortion to protect the pregnant woman’s life or health or to terminate pregnancies resulting from criminal acts or in cases of fetal abnormality. Whether US abortion law is moving from liberal to conservative is discussed later in this entry.

The Model of Prohibition

The model of prohibition governs official abortion policy in many African, Latin American, South Asian, and Middle Eastern countries. Most jurisdictions in Europe and North America reject the model of prohibition, permitting abortion on request, where pregnancy results from rape or incest, or where the continuation of pregnancy threatens the physical, mental, or social well-being of the woman or her fetus. Ireland, a largely Roman Catholic nation, is one of the few European countries whose laws continued beyond the 1970s to criminalize abortions either absolutely or with strictly limited exceptions. Under a 1983 amendment to the Irish constitution, Irish law permits abortion only to save the life of the woman. Overturning a ruling that a teenage rape victim who credibly threatened suicide could not travel to England for an abortion, the Irish Supreme Court found in 1992 that abortion would be permissible “if it is established as a matter of probability that there is a real and substantial risk to the life as distinct from the health of the mother, which can only be avoided by the termination of her pregnancy.” The penalty for performing an illegal abortion in Ireland is severe, up to fourteen years in prison. In 2013 the Irish president signed the Protection of Life during Pregnancy Bill 2013. The slightly less prohibitive law permits abortions to prevent the death or suicide of the pregnant woman. The 2013 statute followed an unrelated controversy concerning the 2012 death of the hospital patient Savita Halappanavar, whom physicians refused to abort even though the procedure might have averted her death due to sepsis resulting from a protracted natural miscarriage.

Jurisdictions whose laws reflect the model of prohibition often assert a strong religious or humanitarian policy interest in protecting what are thought to be the rights and interests of unborn children. However, other objectives have also prompted strict abortion prohibitions. For example, during the nineteenth and twentieth centuries abortion opponents in the United States cited the need to protect pregnant women from the medical and psychological risks of abortion. There can be no doubt that unskilled, unsanitary abortion procedures are a health risk and that some women who obtain abortion services experience medical complications and emotional anguish. However, some lawyers and judges doubt that medical abortion performed during the first three months of pregnancy is less safe than pregnancy and childbirth (Rhode 1989; Tribe 1990). They similarly doubt that elective medical abortion poses a serious risk of psychological harm. Although David C. Reardon (1987, 141), among other observers, asserts that “every woman pays a psychological price for abortion,” the American Psychological Association has concluded that serious emotional problems rarely result from abortion.

Countries whose populations have been ravaged by war and genocide have sometimes proscribed abortion in an effort to increase the birthrate. Strict abortion prohibition has had the additional, if only implicit, goal of reinforcing social roles. The cultural assumption that motherhood is the appropriate social role for women buttressed Joseph Stalin’s 1936 abortion prohibitions, enacted to furnish the Soviet Union with “a new group of heroes” (Tribe 1990, 56). The belief that bearing children is women’s natural destiny may lead some to assume that birth control and abortion are both immoral and unhealthful. After 1933 Adolf Hitler prohibited contraception and declared abortion a capital offense on the belief that birth control was unhealthful. In contrast, abortion prohibitions adopted in Germany in 1943 aimed at the “vitality of the German people” and excluded from criminality abortions performed on “racially” undesirable women (Kraiker 1988, 189).

The reach of laws prohibiting abortion can be broad. Obtaining an abortion has been subject to criminal penalty in some instances, and so too has distributing abortion information. Provisions of the famous Comstock Law enacted by the US Congress in 1873—later rescinded—outlawed abortion-related implements and information as “obscene” and “immoral” (Rhode 1989; Garrow 1998). Offenders of the Comstock Law faced imprisonment with hard labor and monetary fines. Jurisdictions prohibiting abortion generally aim at the conduct of third-party abortion providers. However, some abortion statutes also criminalize pregnant women’s own conduct, making it a punishable offense to obtain or seek abortions from third parties. Legal systems rarely punish medical abortion as the full equivalent of felonious unjustified murder.

Criminalizing nonsurgical and self-induced abortion poses special problems of detection and law enforcement. Pharmaceuticals approved for other purposes, like the cancer drug methotrexate, can be used to induce abortion. Self-induced abortion has often involved risky procedures, such as inserting knitting needles, wire coat hangers, or other foreign objects through the cervix. Many self-induced abortions are detected because they end tragically in medical and police emergencies. In 1989 a health care group in California promulgated a videotape demonstrating “menstrual extraction,” a nonmedical abortion technique trainers say women can learn to perform safely at home with the help of a friend. To the extent that they are workable, abortion procedures that can be performed without professional assistance fall beyond the practical reach of law.

Prohibitive abortion law requires lawmakers to define what counts as abortion and therefore what is subject to criminal penalties. The surgical and medical procedures generally in use by physicians in licensed hospitals and clinics in Europe and the United States plainly qualify as abortion. However, certain forms of birth control not viewed as abortion could conceivably fall under the scope of strict abortion prohibitions. Popularly viewed as a form of contraception, the intrauterine device (IUD) may function as a kind of abortifacient, blocking implantation of a fertilized egg rather than preventing ovulation or fertilization. The drug RU-486 (mifepristone), developed by the French biochemist Étienne-Émile Baulieu and named for its French manufacturer, Roussel Uclaf, poses a related difficulty of definition. Described by French Minister of Health Claude Levin as “the moral property of women, not just the property of the drug company” (Greenhouse 1988), RU-486 arrived on the European scene in the 1980s and in the United States in 2000. Unlike pharmaceutical contraceptives that prevent fertilization or ovulation, RU-486 blocks the successful implantation of a fertilized egg. Rejecting the popular “abortion pill” label, Baulieu has suggested that RU-486 is neither contraception nor abortion but something new—“contragestation.” Still, it seems unlikely that a jurisdiction that strictly prohibits abortion would view “contragestation” as anything other than early abortion.

Abortion flourishes under regimes of prohibitive abortion law (Sachdev 1988; Whittaker 2012). In fact about half of the abortions that take place each year are illegal in the jurisdictions in which they occur. The criminal code of Bangladesh strictly prohibits most abortions, but physicians commonly induce abortion by performing a uterine evacuation procedure known as menstrual regulation on women who are many weeks pregnant. Prohibitive abortion laws commonly fall short of their stated goals and public expectations, because governments are unwilling or unable to enforce the letter of the law. The prohibitive laws that governed abortion in the United States prior to Roe v. Wade were enacted to preserve unborn life and women’s physical and mental health (Garrow 1998). It has been argued that the aim of fetal preservation was at least partly undermined by the large number of clandestine abortions performed, notwithstanding prohibitive laws (Tribe 1990). Although in the twentieth century most abortions were illegal in much of the United States prior to 1973, American women obtained an estimated 200,000 to 1.2 million abortions each year in the 1960s and the early 1970s (Tietze, Forrest, and Henshaw 1988), compared to about 1.5 million each year throughout the 1980s and the early 1990s and 1.3 million in 1997. Reardon (1987) puts the number of abortions pre-Roe at 100,000 to 200,000 per year. The aim of preserving women’s health may have been frustrated under the regime of prohibition, because clandestine abortions were commonplace but were not always performed by skilled practitioners in hygienic settings. This was especially true of the illegal abortions obtained by African American women, who accounted for a disproportionate number of the victims of illegal procedures. (Twenty percent of the deaths related to pregnancy and childbirth in the United States in 1965 were attributed to illegal abortions.) Legalization of abortion probably resulted in a small to moderate increase in the number of abortions, but it appears to have greatly decreased the incidence of abortion-related infertility and death.

Model of Permission

The model of permission became the pervasive one around the world in the twenty-first century. Under the model of permission, abortion is legally available but only with the approval of government officials or officially designated decision makers, such as administrative boards, committees, physicians, or judges. In some permission-model jurisdictions officials grant permission pro forma in nearly every case. In Norway, prior to 1975 reforms that liberalized abortion, as many as 94 percent of the requests for abortions made to abortion boards were routinely granted (Olsnes 1993). Official decision makers in permissive jurisdictions rely on a handful of factors to determine which abortions to permit and which to prohibit (Glendon 1987; Petersen 1993).

The stage of pregnancy is very frequently a factor. Officials called on to implement legal norms or exercise discretion often permit “early” abortions and prohibit “late” ones. This no doubt helps explain the statistic that 90 percent of reported abortions take place within the first three months of pregnancy. Another factor decision makers commonly consider is the woman’s medical or social status. Restrictive laws require that officials deny permission to abort for reasons other than medical hardship. Liberal laws often require that officials allow abortions because pregnancy or childbirth would involve social or economic hardship for the woman. In many jurisdictions grounds for social hardship include rape, incest, or the age and marital status of the woman. The health or condition of the fetus can be a third factor in permitting or prohibiting abortion. The law may permit access to abortion on evidence that a child would be born with serious physical or mental abnormalities.

Genetic testing for the purpose of enabling parents to abort fetuses with undesirable traits is already practiced in the United States. Health care providers in some states even face “wrongful life” and “wrongful birth” lawsuits for negligent failure to offer women information needed to prevent or abort an unwanted pregnancy. With advances in prenatal testing that enable detection of the sex of a fetus, it is possible for a pregnant woman to abort selectively unwanted male or female offspring. In some instances abortion for sex selection may be tied to a desire to avoid giving birth to a child with a gender-related genetic disease. Jurisdictions that permit abortion without regard to reason presumably permit abortion for sex selection. An outlier in this regard is Vietnam, which has liberal abortion laws but forbids abortion for the reason of sex selection (Wolf et al. 2010).

For most of the twentieth century a number of countries governed abortion under highly bureaucratic versions of the model of permission (Sachdev 1988). For a time in the Eastern European countries of Hungary, Romania, Poland, and Bulgaria, abortion was lawful only if approved by a state board or committee. These countries reportedly permitted abortion in almost every case through the fourth month of pregnancy. Romania reverted to a prohibitive policy in 1966 in response to concerns about underpopulation and the health effects of multiple abortions. It prohibited most contraception and abortions for women who did not have at least four, and eventually five, children. Abortion prohibition was accompanied by a significant incidence of mortality related to illegal abortions. In the mid-1980s 86 percent of the women in Romania who died as a consequence of pregnancy or childbirth died as a result of illegal abortions, compared with, for example, 29 percent in the Soviet Union and 13 percent in Sri Lanka.

Other historical instances of the bureaucratic model of permission are the laws and administrative regulations in force in Denmark from 1939 to 1973 and in Sweden from 1939 to 1974. In Denmark local and national committees consisting of teams of social workers, physicians, and psychiatrists evaluated the applications of women seeking legal abortions. Scandinavian officials on boards or committees charged with decision making typically assessed the impact of childbirth and child care on the mental or physical health of the woman and the woman’s living conditions. The Israeli Ministry of Health regulations enacted in 1978 permitted hospitals and clinics to form committees consisting of two physicians and a social worker to decide whether to grant women’s abortion requests. Although living conditions, such as other children and economic hardship, were initially an authorized basis for granting abortion requests, Israel amended the law in 1980 under pressure from religious groups and in response to concerns about a declining population rate. In the early twenty-first century in Israel the vast majority of abortion requests brought to one of about forty official committees are granted. Abortions sought on maternal health or fetal disability grounds are available at no cost.

At the beginning of the twenty-first century a number of countries in Asia, South America, Europe, and North America made a woman’s obtaining an abortion dependent on the approval of one or more physicians, a judge, or one or both parents. Great Britain and countries whose abortion laws were modeled on Great Britain’s—Hong Kong, Zambia, and some states in Australia—are examples of places whose laws place decision making in the hands of physicians. The law of Great Britain was transformed over a great many centuries from a model of prohibition to a model of permission and even a model of privacy. Early English common law embodied the model of prohibition, at least for abortions taking place after the first few months of pregnancy. The common law proscribed abortion after quickening, about the fourth month of pregnancy, when fetal animation or ensoulment was deemed to have taken place. In 1861 the statutory abortion law of Great Britain defined as a felony any act intended to cause abortion, whether induced by the woman herself, if she were pregnant, or by others, whether or not she was in fact pregnant. The Abortion Act of 1967 abolished the nineteenth-century felony. The act’s liberal provisions permit an abortion where any two medical practitioners certify in good faith that pregnancy “would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of the pregnant woman or any existing children of her family, greater than if the pregnancy were terminated.” Under this rule, qualifying for abortion poses no practical difficulty for women with the money to pay private physicians. As English law illustrates, the model of permission can have the distinct effect of empowering the medical and psychiatric professions to govern reproduction in accordance with their profession’s internal standards of judgment.

Abortion is common in Australia, where abortion rights vary significantly from state to state and are governed both by common law and criminal statute. A liberalizing trend has been observed since the mid-1990s, when only South Australia and the Northern Territory had statutes specifically permitting some abortions. In 1998 controversy erupted over Australian abortion law when two physicians were arrested in Western Australia for violating a moribund nineteenth-century criminal statute. The doctors had performed a consensual abortion in 1996 on a Maori woman who stored the aborted fetus in her refrigerator, planning to take it to New Zealand for burial in accordance with Maori traditions. Following reforms, early abortion is available virtually on demand in some Australian states and is subject to enforced restrictions in others.

In India the Medical Termination Pregnancy Law enacted in 1971 permitted abortions that one or, if the woman is more than twelve weeks pregnant, two physicians certify. Grounds for certification are liberal. Abortion may be obtained to preclude a risk to the pregnant woman’s mental or physical health or a risk of the birth of a child with serious mental or physical abnormalities. No abortions after twenty weeks are legal under the law. A woman’s mental health is considered at risk in cases of economic hardship and where pregnancy resulted from failed contraception. The 1975 Abortion and Sterilization Act made many abortions lawful in the Republic of South Africa on the certification of two physicians that statutory requirements are met. The law required that where abortion was sought on grounds of risk to mental health, one of two certifying physicians be a psychiatrist willing to attest to danger of permanent mental harm. South Africa liberalized its abortion law in 1996 and 2008, making early abortion available on demand.

French law permits women to make their own judgments (early in pregnancy) about whether they are entitled to abortion on grounds of hardship. In this respect French law resembles the federal law of the United States under Roe v. Wade. French regulations enacted in 1975 are representative of international responses to the judicial transformation of US law with Roe v. Wade in 1973. Reflecting the aspirations of both the model of permission and the model of privacy, the French enactment begins with a declaration that the law guarantees respect for every human being from the beginning of life and that this principle is to be sacrificed only in case of necessity and according to specific conditions. But the law authorizes any woman who is twelve or fewer weeks pregnant to ask a physician for an abortion if she believes pregnancy or childbirth will create hardship. Moreover at any stage of pregnancy, right up to the moment of birth, abortion is lawful if two physicians, one of them from an official list, certify that continuation of pregnancy would put the woman’s health in grave peril or that there is a strong possibility that the child would suffer from an incurable condition.

The French abortion law imposes numerous conditions on all abortions. Attending physicians must inform women of the medical risks of abortion and give them an official guide to the forms of assistance available to families, mothers, and children and to relevant social service organizations. Women then must consult one of the listed social services. Women wishing to proceed with abortion must confirm their request in writing after a one-week waiting period. Abortions must be performed by physicians in a public or recognized private hospital and must be reported to the regional health authorities. Hospitals must provide women who have obtained abortions with birth control information.

The model of privacy may best describe the overall aspiration of Roe v. Wade. However, the model of permission is arguably more descriptive of US abortion law pertaining to unemancipated minors. The Supreme Court has taken the position that minors have a constitutional right to privacy and may terminate their pregnancies without parental consent but that minors may not object on constitutional grounds to parental notification requirements and waiting periods. Individual justices on the court have argued that requiring pregnant minors to notify family members of pregnancy and abortion in effect gives veto powers to third parties in a way that is inconsistent with the spirit of Roe v. Wade.

Yet a majority held in Hodgson v. Minnesota (1990) that states providing a “judicial by-pass procedure” may attempt to involve one or both parents in minors’ abortion decision making by requiring minors or their physicians to contact parents in advance of abortion. In judicial bypass procedures minors must be permitted to ask a judge to waive parental notification requirements. The judge is expected to waive the requirement if he or she determines that the minor is mature or that notification is not in the minor’s best interests. Justices in the minority have objected that bypass procedures are unwarranted, because most minors notify parents or other responsible adults of pregnancy and abortion and most minors seeking judicial waiver obtain it. In addition, the practical effect of mandatory notification is that some teens will delay abortion, increasing costs and medical risks. Some justices have argued that laws requiring parental involvement place minors with abusive parents or broken homes at a disadvantage and even at mortal risk.

Model of Prescription

Under the models of permission and privacy, a government permits some or all of the abortions women want. Under the model of prescription, a government compels or virtually compels women to obtain abortions the government wants. Far-reaching compulsory abortion laws have been rare in the modern world. In the West policy makers frown on official and unofficial policies of mandatory abortion for poor and mentally incompetent women. Although health care providers reportedly recommend abortion in some instances—for example, when a pregnant woman is addicted to cocaine or infected with HIV—the US government does not officially recommend or mandate abortion for any class of pregnancy. Under a penal code adopted in 1979, Cuban law proscribes abortion performed without the permission of the woman.

In an effort to control overpopulation and protect its economy, China began adopting “planned-birth” family-planning measures in 1953. These measures aggressively encourage abortion through a system of penalties and rewards. Under the Chinese constitution, both the government and individuals are responsible for the planned-birth policy. In 1974 couples were limited to two children. Since 1979 couples wishing to bear children have been authorized to have only one child and then only after securing a government permit. Women in certain parts of the country are allowed two children under certain conditions. To encourage compliance with the family-planning measures, abortion is offered at no cost and may entitle the woman to a two-week paid leave of absence; women who have an IUD inserted or a tubal ligation along with abortion may receive additional paid leave. The effect of the planned-birth policy on the abortion rate in China is not known in the West. Despite a law against sex identification of the fetus by technical means during pregnancy, abortion for sex selection is reported (as is female infanticide). Chinese families have reportedly resorted to infanticide and selective abortion to ensure that their one-child quota is filled by a child of the culturally preferred male sex.

Model of Privacy

Under the model of privacy, the law rarely compels abortion and permits all or virtually all abortions as long as they are performed by medically qualified persons in clinics, hospitals, or other qualified facilities. Safety is a frequent goal of legal systems characterized by the model of privacy, although safety is not necessarily suggested by “privacy” nomenclature. The Soviet Union adopted the model of privacy on safety and privacy grounds in 1920, more than a half century before the model came to dominate understandings of US law. The goal of the Soviet decree legalizing any abortion performed by a physician in a state hospital was both to keep women safe from unskilled abortionists and to secure women’s freedom and equality in work, education, and marriage. In 1936 the decree was rescinded in favor of a law prohibiting abortion other than to spare the life or health of the woman or to prevent transmission of an inheritable disease. The shift back to the models of prohibition and permission seems to have been motivated by concern about declining birthrates, health effects of medical abortions, and diminished regard for marriage and childbearing. But in 1955 the Soviet law moved back toward the model of privacy, again to protect women from unskilled abortionists and to give women themselves an opportunity to decide whether to become mothers (Sachdev 1988).

In Japan abortion has been legal since the government passed the Eugenic Protection Laws in 1948 to protect women’s health and deter the birth of what were considered undesirable offspring. In practice abortion is available to women in Japan on request. The law does limit abortion, but the limitations are extremely liberal: abortion is permitted when performed by designated physicians to avert mental and physical disease or abnormalities, when pregnancy results from violence, or when the woman’s health would be impaired for physical or economic reasons. Functionally one can view Japan as a model of privacy jurisdiction, yet women’s autonomy and equality are not the express policy objectives of its liberal abortion law. Japan follows the model of permission insofar as laws restrict abortion and have not been designed specifically to promote autonomous, private decision making. For nearly thirty years after they had been approved for use in North America and Europe, low-dose birth control pills were banned in Japan out of concerns about safety. The end of the ban in 1999 could mean that abortion will no longer function as a major form of birth control in Japan.

In the United States abortion policy since the early 1970s has been directed to women’s rights. During the early 1970s the United States and a number of other countries adopted laws approximating the model of privacy. The theory that during the first trimester abortion ought to be available without any restrictions gained popularity. In effect this approach was adopted in East Germany in 1972, Denmark in 1973, Sweden in 1974, France in 1975, and Norway in 1978 (Sachdev 1988; Olsnes 1993). “Fetal viability,” the point at which, in some of these countries, the interests of the woman cease to be accorded overriding weight, is variously fixed between twenty weeks and twenty-eight weeks. In Norway, under 1978 amendments to a 1975 law, a woman “shall herself make the final decision concerning termination of pregnancy provided that it is possible to perform the operation before the twelfth week of pregnancy has elapsed.” After the twelfth week abortion sought for a number of medical or social indications is available on successful application to an “abortion board” (Olsnes 1993).

In Regina v. Morgentaler (1988) the Supreme Court of Canada found by a margin of five to two that provisions of the criminal code infringed section 7 of the Canadian Charter of Rights and Freedoms promising “life, liberty and security of the person.” The Canadian justices argued that “personal security,” “bodily integrity,” “human dignity,” and “self-respect” were threatened by interference with reproductive choices (Morton 1993). The Canadian legislature remains free to regulate abortion consistent with the Morgentaler decision. However, in 1990 a bill to restrict abortion access to women whose physicians certified a health-related need for the procedure failed. The government thereafter announced that it would not seek new abortion legislation.

In Canada, the United States, and other privacy-model jurisdictions, liberal abortion laws permit autonomous choices about matters that profoundly affect women’s bodies, lifestyles, and equality. However, it is generally recognized that laws that decriminalize and deregulate abortion do not guarantee that every woman who desires an abortion will get one. Abortion is costly and may or may not be covered by the health insurance of women who have insurance. The US Supreme Court has repeatedly held that state and federal governments may encourage childbirth over abortion by refusing to include abortion among Medicaid and other entitlements awarded the poor. As a consequence, public funding for abortion is not available as a matter of right, publicly funded civilian and military hospitals are not required to perform abortion services, and states may prohibit physicians employed by public hospitals from performing abortions.

Focus: The United States

The Constitution of the United States does not mention the word abortion. However, the Supreme Court has consistently held since Roe v. Wade and Doe v. Bolton (1973)—the simultaneously decided, lesser-known companion case—that the due process clause of the Fourteenth Amendment guarantees American women a fundamental right to obtain medically safe abortions. States may not categorically ban abortion or unduly burden women’s fundamental constitutional right to terminate pregnancy.

Connecticut passed the first American legislation against abortion in 1821 (Garrow 1998). At first American law did not penalize early (pre-quickening) abortions. However, between 1827 and 1860 twenty states or territories passed statutes against abortion at all stages of pregnancy. By 1868 thirty-six states or territories had antiabortion statutes in place, enforcement of which was often lax. In 1965 all fifty states treated abortion and attempted abortion at all stages of pregnancy as felonies, subject to certain exceptions. In forty-six states and the District of Columbia the relevant statutes explicitly permitted abortion to save the pregnant woman’s life, and in two of the other four states a similar exception was recognized by the courts.

Between 1967 and early 1973 a dozen jurisdictions in the United States adopted somewhat permissive abortion laws patterned on the model legislation suggested in 1962 by the influential American Law Institute. These laws permitted abortion when performed by a licensed physician who determined that there was a substantial risk that pregnancy would seriously injure the physical or mental health of the woman, that the child would be born with a grave physical or mental defect, or that the pregnancy resulted from rape or incest. Almost all of the other reforming jurisdictions nevertheless sought to strengthen the institutionalization of abortion practice by stipulating that an abortion would be lawful only if performed in an accredited hospital after approval by a committee established in the hospital for that purpose.

The decriminalization of abortion on the national level lagged behind the decriminalization of contraception. In 1965 the Supreme Court decided Griswold v. Connecticut, holding that states may not outlaw a married woman’s use of birth control. The court based its ruling on an unenumerated constitutional “right to privacy” implicit in the Bill of Rights and the Fourteenth Amendment. This same right to privacy was invoked in 1973 in Roe v. Wade to limit government interference with abortion. The right to privacy was and is controversial among lawyers and judges reluctant to recognize novel unenumerated rights. However, both the American Medical Association and the American College of Obstetricians and Gynecologists favored legalization of abortion. The immediate effect of Roe v. Wade and Doe v. Bolton was to invalidate the laws prohibiting abortion in every state (except perhaps the already very permissive laws adopted in 1969 and 1970 in New York, Alaska, Hawaii, and Washington).

Roe and Doe established four standards:

No law can restrict the right of a woman to have a physician abort her pregnancy during the first three months, or first trimester, of her pregnancy.
During the second trimester the abortion procedure may be regulated by law only to the extent that the regulation reasonably relates to the preservation and protection of maternal health.
At the point at which the fetus becomes “viable,” a law may prohibit abortion but only subject to an exception permitting abortion whenever necessary to protect the woman’s life or health (including any aspects of her physical or mental health).
No law may require that all abortions be performed in a hospital, or that abortions be approved by a hospital committee or by a second medical opinion, or that abortions be performed only on women resident in the state concerned.

The court in Roe and Doe concluded that the Constitution does not accord legal personhood status to the fetus. Critics of this conclusion point out that the unborn are implicitly treated as legal persons in several other areas of the law. The unborn are taken into account in the allocation of property rights and the attribution of criminal and civil responsibility. For example, the unborn can inherit property. Negligently killing or injuring a fetus can give rise to civil liability for wrongful death, wrongful birth, battery, and other torts.

Roe made clear that women were not to be ascribed a right to exclusive control over their bodies during pregnancy. Yet the case signaled that the Constitution limits the role government may play in abortion decisions. In the first decade and a half after Roe the court struck down numerous state abortion restrictions. States unsuccessfully attempted to control abortion through:

advertising restrictions;
zoning restrictions;
record-keeping and reporting requirements;
elaborate “informed consent” and physician-counseling requirements;
mandatory waiting periods;
bans on abortions for sex selection;
the requirement of the presence of a second physician during the abortion procedure;
the requirement that physicians employ methods of abortion calculated to save the lives of viable fetuses;
the oversight requirement that physicians send all tissue removed during an abortion to a laboratory for analysis by a certified pathologist;
the requirement that insurance companies offer at a lower-cost insurance that does not cover most elective abortions;
legislating a statewide information campaign to communicate an official state policy against abortion;
legislating criminal sanctions for physicians who knowingly abort viable fetuses;
requirements that some or all abortions after the first trimester be performed in a hospital.

However, the Supreme Court has repeatedly validated state and federal government policies that prefer childbirth to abortion by declining to pay for the abortions of poor women entitled to welfare benefits for prenatal care and childbirth (Solinger 1998).

A major reaffirmation of Roe, Thornburgh v. American College of Obstetricians and Gynecologists (1986), held that states were not permitted to indirectly prohibit abortion by encumbering the decision to seek abortion with unnecessary regulations. A series of highly publicized court decisions handed down since 1989 appear to permit more extensive regulation of first- and second-trimester abortions than Roe and Doe seemed to contemplate. Webster v. Reproductive Services (1989) permitted legislation requiring viability testing and limits on publicly funded physician care. The court declined in Webster to decide the constitutionality of the declaration in the preamble of a Missouri statute that the “life of each human being begins at conception” and that “unborn children have protectable interests in life, health and well being,” because the state had not yet sought to limit abortion by appeal to it. Encouraged by the Webster decision, several states and the territory of Guam sought between 1989 and 1992 to ban or discourage abortion through aggressive new regulation and enforcement. Anticipating that the Supreme Court would welcome an opportunity to overrule Roe in the 1990s, Guam enacted legislation prohibiting most abortion and its advocacy. A federal judge quickly declared Guam’s law unenforceable under Roe.

In two 1990 cases critical of Roe, Hodgson v. Minnesota and Ohio v. Akron Center for Reproductive Health, the court upheld parental notification requirements for minors. Rust v. Sullivan (1991) upheld a federal “gag rule” statute, subsequently eliminated by Congress, prohibiting abortion counseling by physicians in federally supported facilities. Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) affirmed Roe as the law of the land and invalidated spousal notification. However, the case upheld a twenty-four-hour waiting period as part of a state’s “informed consent” procedures. Casey shed the trimester framework of Roe, opening the door to regulation at any stage of pregnancy. Casey also announced a weaker standard of review in abortion cases that promised to permit more state regulation. Under Roe abortion statutes were to be struck down if they did not further a “compelling” state interest.

Under Casey statutes “rationally related” to a “legitimate” state interest are to be upheld, assuming they do not “unduly burden” the abortion right. The weakening of the standard of review in abortion cases after the Casey decision underscores that constitutional abortion law in the United States, although grounded in the model of privacy, seems also to include elements of the model of permission. For this reason it seems likely that the Supreme Court will be asked again and again to clarify the extent to which the state and federal government may restrict abortion rights. Proposed state and federal statutes, such as the Partial-Birth Abortion Ban Act of 2000 and the Born Alive Infant Protection Act of 2002, were attempts to extend legal protections to viable fetuses and curb certain abortion practices. Yet in Stenberg v. Carhart (2000) the court declared unconstitutional a Nebraska statute outlawing so-called partial birth abortions. The court reasoned that the broadly drafted statute lacked a constitutionally necessary exception for abortions to save the life of the woman and could be construed to rule out the dilation and evacuation procedure and the more controversial dilation and extraction or partial birth procedures. The federal Partial-Birth Abortion Ban Act of 2003 clarified the ambiguity of proscribed abortion procedures, proscribing only dilation and extraction. The 2003 act contained an exception for the life but not for the health of the woman, with a congressional finding that dilation and extraction would never be used out of a concern for the health of the woman. The constitutionality of the 2003 act was upheld in Gonzales v. Carhart (2007).

The US Food and Drug Administration approved the controversial drug RU-486 in 2000. State and federal lawmakers who opposed its use acted quickly but unsuccessfully to propose legislation outlawing the drug or limiting the types of physicians authorized to prescribe it. The long awaited “abortion pill” has not become the elected method of abortion for a majority of American patients and providers, although its use is consistently increasing as a percentage of overall early abortions. Notwithstanding the limited popularity of mifepristone as an abortifacient, because of Roe and possible non-abortion uses of the medication, it is unlikely that a blanket legislative ban on mifepristone would be found constitutional. In 2011 seven states enacted laws that require the physician prescribing a drug for abortion to be in the same room as the patient, thereby outlawing telemedicine in this medical area.

Many Americans favor regulation of abortion, though polls consistently show that most Americans believe that abortion should be legal in any circumstance or under certain circumstances. For example, a May 2013 Gallup (2013) poll showed that more than 78 percent of Americans believed that some abortions (52%) or all abortions (26%) should be legal. The Gallup poll (2013) also found significant dissatisfaction with abortion laws—40 percent of Americans were dissatisfied with current laws on abortion, and 27 percent want stricter regulation. In the 1970s and 1980s attempts were made on both sides of the abortion debate to provide a national abortion law standard for the United States by legislation. Several attempts have been made in both houses of Congress to undercut the judicial decision through legislation. One attempt, premised on the idea of states’ rights, involved legislation that if adopted would have established that no right to an abortion is secured by the Constitution and therefore that the fifty states are free to adopt restrictions on abortions. A second attempt, premised on fetal personhood, would have expanded the definition of person under the due process and equal protection clauses of the Fifth and Fourteenth Amendments. The fetal personhood legislation would have declared that the right to personhood attaches from the moment of conception.

Supporters of Roe in Congress have attempted to legislate the holding of Roe through a federal statute. The Freedom of Choice Act was introduced in Congress several times, beginning in November 1989. Its passage by Congress would have prohibited states from enacting restrictions on the right to abortion before fetal viability. Initiatives to amend the federal Constitution to include pro-life or pro-choice strictures have not advanced far beyond the drafting table.

Two states have, in different ways, established an abortion right independent of Roe. With In re T. W. (1989) the Florida Supreme Court invalidated that state’s parental consent requirement, relying on the state constitution. As a result of this decision, Florida recognized a fundamental abortion right independent of Roe. A Maryland referendum endorsed by voters in 1992 similarly established state abortion rights not tied to the fate of Roe.

In contrast to the failed efforts at federal legislation on either side of the debate in the 1970s and 1980s and to some extent consistent with the 1998 poll that showed that Americans favored further restrictions on access to abortion, state legislation in 2011, 2012, and 2013 became an increasingly common tool for those seeking to enhance regulation of access to abortion. For example, several states in 2011 enacted one or more of the following laws:

Placing restrictions on later abortions;
Increasing the waiting periods after an initial consultation for an abortion;
Mandating a pre-abortion counseling protocol;
Requiring an ultrasound prior to any abortion;
Restricting private insurance coverage for abortion;
Increasing regulation of clinics that provide abortion services.

As an illustration of the second and third items, South Dakota enacted a law that would require at least a seventy-two hour waiting period for an abortion after an initial consultation with a mandated counseling session at a pregnancy crisis center during the interim. As of 2013 this law was enjoined by court order. As an illustration of the third item, Indiana and Kansas require that the woman be told that the fetus is a person. As an illustration of the fourth item, five states enacted laws mandating an ultrasound prior to abortion. Ultrasound mandates (North Carolina and Texas) requiring also that the woman be shown the ultrasound and have it explained to her have been enjoined by court orders. As an illustration of the sixth item, four states enacted laws that directed state agencies to regulate clinics that provide abortion services. The Kansas health department put in place numerous clinic requirements, such as square footage and doctor privilege requirements, with a short time span of compliance, which in 2013 were enjoined by court order. After a battle in the legislature, Texas enacted a new statute in 2013 restricting most abortions to before twenty weeks and requiring enhanced clinical facilities.

The constitutional status of many of these early twenty-first century prohibitions and regulations is unclear. As noted above, some of the laws have been enjoined, yet some have not. Some of these laws have yet to be subjected to judicial scrutiny. As long as Roe, Doe, and Casey stand, they will provide a national abortion law standard for the United States. The test of constitutionality is whether the 2011 state laws are rationally related to a legitimate state interest and do not unduly burden women when exercising their rights.

The Implications of Abortion Law

The liberalization of abortion law establishes rights for women who wish to terminate their pregnancies. Contemporary abortion rights advocates construe these rights as “human rights” in some cases and rights called for by “reproductive justice” in others. Advocates who advance access to reproductive services as human rights and as reproductive justice stress that the discourse of legal privacy obscures some of the important dignitarian, egalitarian, and welfare grounds for liberal abortion policies and the substantial economic and political barriers to the exercise of meaningful safe and independent choices by women, especially women of color and women in developing countries.

The full implications of abortion rights are unclear in matters concerning:

The use and disposal of fertilized eggs, embryos, and fetal remains;
The enforceability of surrogate mother and surrogate gestator contracts granting third parties a legal interest in a woman’s pregnancy;
The criminalization of pregnant women’s conduct;
The tort liability of health care providers for wrongful birth and wrongful life;
Organized protest at abortion facilities. (Purdy 1996)

One legal concern is whether women who elect to abort have a familial, proprietary, or other interest in routinely aborted embryos or fetuses. State statutes typically require that abortion providers dispose of fetal remains in the way physicians dispose of other excised tissues. Yet some effort has been made to treat abortion tissues and fetuses differently either because of their possible commercial value for research into the treatment of diabetes, leukemia, Alzheimer’s disease, and Parkinson’s disease or because of their possible value as deceased “children.” In 1984 a federal judge in Louisiana held that a statute requiring abortion providers to present patients with the option of burial or cremation was an unconstitutional burden on freedom of choice. About 90 percent of all abortions performed in the United States and in other countries are performed during the first trimester. The court implied that women might be discouraged from first trimester abortions on the mistaken belief that extracted tissue would resemble an infant. Another legal concern is whether aborted embryos and fetuses may be sold for research purposes. American courts and legislators are unlikely to permit outright sales of abortion tissues for research purposes. Indeed federal agency policies adopted in the 1980s declared a moratorium on the use of abortion tissues derived from elective abortions partly out of concern that women might be encouraged to abort for gain. Signaling a change in policy, in 1993 President Bill Clinton, a Democrat, issued an executive order lifting the moratorium on fetal tissue research. In 2001 President George W. Bush, a Republican, reversed this move with his announcement of new federal restrictions on moneys going to human embryo– derived stem cell research. In 2009 the Democratic president Barack Obama reversed this move yet again, restoring federal funding to embryo-derived stem cell research.

Since the 1980s men and women have been parties to commercial surrogate motherhood contracts, the terms of which may purport to limit the right to abortion. Surrogacy contracts raise questions about the commercial alienability of constitutionally protected abortion rights. Surrogates sometimes conceive a child using donated sperm but can also be impregnated with an embryo created with the gametes of others in vitro. The increasingly commonplace commercial surrogacy agreements may contain provisions in which the would-be surrogate mother or gestator undertakes that she will not obtain an abortion should she become pregnant as a result of the surrogacy transactions. The 1988 Baby M case, which gained national attention, arose when the surrogate mother, Mary Beth Whitehead, refused to relinquish her parental rights. Under the surrogacy contract Whitehead had agreed in writing that she would “not abort the child once conceived” unless a physician determined it necessary to protect her health or “the child has been determined … to be physiologically abnormal.” The Supreme Court of New Jersey refused to enforce any part of the surrogacy contract in Baby M. Whereas the courts of California and other jurisdictions have enforced surrogacy contracts when disputes have arisen over parenting rights and child custody, American courts have not specifically enforced a promise not to abort.

Another set of issues relates to the extent to which abortion rights may prevent the government from intervening to enjoin or punish risky behavior by pregnant women who, for example, smoke cigarettes, consume alcohol, abuse drugs, or fail to heed medical advice. In a number of isolated cases in the United States, judges have jailed pregnant women whom they suspected would abuse or neglect their fetuses. In Ferguson v. City of Charleston (2001) the US Supreme Court struck down a program under which a hospital tested pregnant patients for illegal narcotics use without their informed consent and reported patients who refused prescribed rehabilitation to law enforcement authorities. A somewhat different concern is the legal implications of government intervention in the event that a pregnant woman refuses a blood transfusion needed to save her life or a cesarean delivery physicians believe to be in the best medical interest of the unborn. Some view Roe as holding by implication that women have a broad right to control—and even abuse—their own bodies without regard to fetal well-being. Yet a plausible counterview is that Roe does nothing more than immunize women from prosecution for sufficiently early abortions if they choose to have them.

Abortion is controversial in many countries. Violence aimed at abortion providers has occurred both in Canada and the United States. Abortion facilities, health care providers, and even patients have been terrorized by verbal threats, bombs, anthrax, and guns. In May 1992 a bomb blast blamed on antiabortion radicals destroyed the Morgentaler abortion clinic in Toronto. Although antiabortion violence is rare in Canada, dozens of abortion clinic bombings and fires have occurred in the United States. Antiabortion activists throughout the United States have demonstrated at abortion sites to focus attention on their concerns. Generally peaceful, these demonstrations have sometimes become blockades that interfere with the ability of patients and staff to use facilities where abortions are believed to take place. Demonstrators have sometimes resorted to harassment, noise nuisance, property damage, and murder. The shooting deaths of two Florida physicians outside abortion facilities in 1993 and 1994 dramatized the conflict between protesters and clinics. Congress passed the Freedom of Access to Clinic Entrances Act of 1994 in an effort to assure freedom of access to reproduction services. The act makes obstruction and interference at places providing reproductive services a federal offense punishable by fines and imprisonment. Yet clinic entry laws addressed only one site of violence. Barnett Slepian, a New York abortion provider, was murdered in his own home in 1998. George Tiller, a prominent abortion provider, was murdered as he attended church in 2009. Because abortions are legal in the United States, official prosecutions of abortion providers for murder are extremely rare. A Philadelphia, Pennsylvania, abortion provider, Kermit Gosnell was prosecuted for multiple counts of first-degree murder and eventually sentenced to life in prison in 2013 for the deaths of three aborted viable fetuses. In a low-income African American community, Gosnell operated what was by all accounts a substandard facility that escaped the notice of public health officials for many years.

The right to abortion has been held by some state courts to provide a rationale for permitting “wrongful birth” or “wrongful life” lawsuits. In wrongful birth actions parents sue health care providers to recover for expenses and emotional distress connected with raising children with congenital abnormalities. In wrongful life actions disabled offspring sue health care providers, alleging that professional negligence caused their births into lives of pain, suffering, and extraordinary expenses. Citing Roe, the New Jersey Supreme Court in Berman v. Allan (1979) allowed a wrongful life lawsuit for professional negligence to go forward against the obstetricians of a woman who alleged that she was not offered amniocentesis and as a consequence was denied an opportunity to exercise her legal right to abort a fetus affected by Down syndrome. Pennsylvania and several other states have refused to permit wrongful birth or wrongful life suits. Permissive jurisdictions stress the fairness of compelling negligent physicians to share the economic burdens borne by the families of the disabled. However, some policy makers believe such suits imply disrespect for human life and for the right to life of disabled persons.

Abortion rights and free-speech rights clash in the context of conflicts over abortion clinic protests. Women have a legal right to seek abortion without highly offensive intrusion, physical assault, and violence. These rights come into play where, for example, protesters block access to clinics or broadcast videos of clinic patrons over the Internet or on public access television. But antiabortion protesters have a First Amendment right to freedom of speech, expression, and assembly. Citing the First Amendment in Schenck v. Pro-Choice Network of Western New York (1997), the Supreme Court refused to uphold an injunction that created a “floating buffer zone” with a fifteen-foot radius around persons using abortion facilities. Seeking to balance the rights of clinic users and protestors, the court in Hill v. Colorado (2000) upheld a statute creating a narrow, eight-foot “bubble zone” around abortion clinics as a reasonable restriction of protestors’ free speech.

Following the murders of physicians who performed abortions, a federal appeals court in Planned Parenthood of the Columbia/Willamette, Inc., et al. v. American Coalition of Life Activists et al. (2002) held that the federal Freedom of Access to Clinic Entrances Act’s definition of a violent threat extended to the circulation by antiabortion activists of “guilty posters” targeting specific abortion providers. Some federal courts have been reluctant to enjoin abortion protestors accused of actual or threatened violence on the basis of state or federal statutes, such as the Ku Klux Klan Act, not clearly enacted for that purpose. In National Organization for Women (NOW) v. Scheidler (1993), however, the Supreme Court determined that the federal Racketeer Influenced and Corrupt Organizations (RICO) statute could apply to a coalition of antiabortion groups alleged to be members of a nationwide conspiracy to close abortion clinics. The alleged conspirators unsuccessfully argued that RICO applies only to conspiracies in which the alleged racketeers act for the sake of economic gain rather than out of religious, moral, or political conviction. The court found that acts that did not generate income for alleged racketeers but that adversely affected businesses, such as abortion clinics, were potentially conspiratorial under the RICO statute. The victory for groups in support of abortion rights was undercut by a later Supreme Court decision, Scheidler v. National Organization of Women, Inc. (2003), which held that antiabortion protesters interfering with the property right of lawful abortion did not amount to racketeering acts of extortion required by the RICO statute.

In sum, the practice of abortion raises numerous legal issues in the jurisdictions that permit it. Because many individuals oppose abortion on religious and moral grounds, abortion-related questions of legal policy will remain especially complex in the United States and other pluralistic societies. In addition, should technologies for creating, preserving, and terminating human gametes, embryos, and fetuses continue to proliferate, the number of legal concerns about reproductive rights and responsibilities is as likely to expand as to contract.