With the ruling in Eisenstadt, the stage was now set for the Supreme Court decision on abortion. In 1972, "Jane Roe" challenged a Texas law that prohibited abortion in all cases except those performed in order to save the mother's life. Thirty other states had similar laws, and in many of these states the legislature was considering some sort of reform. The timing was therefore right for a reappraisal of the question, and the Court was prepared by a half century of privacy cases. Having defined a certain zone of privacy around marriage and family decisions, it was a comparatively small step to include abortion within this area into which government (both state and federal) could not go. Having decided that people had a fundamental privacy right to decide for themselves whom to marry, whether or not to have children, and how those children should be raised, it was a small step to conclude that the right to privacy was "broad enough to encompass a woman's decision whether or not to terminate her pregnancy."21
But before reaching this conclusion, the Court had to deal with certain preliminary questions. The first was the legal status of the fetus. The Court held that the word "person" in the Constitution had never been interpreted to include the unborn, nor had state laws ever recognized the unborn as persons. This would suggest that the fetus was not entitled to any legal standing or protection. Yet, the Court also recognized that the federal and state governments acquired "an interest" or responsibility pertaining to the fetus as it approached "viability." That is, as the fetus acquired the ability to survive outside the womb, the government acquired a "compelling interest" in its protection.
In addition, the Court also recognized that while the decision to abort a pregnancy might fit within this zone of privacy surrounding questions of marriage and procreation, government had an interest or responsibility in ensuring that abortions were safely conducted. This interest also increased as the pregnancy advanced and abortion procedures grew more risky to the mother.
The decision in Roe v. Wade weaved all of these considerations into a somewhat complex ruling that acknowledged a fundamental privacy right over the decision to terminate a pregnancy as well as the federal and state governments' escalating interest in the pregnancy as it advanced. The Court ruled that, during the first three months, a woman could obtain an abortion without any government interference. During the second three months, as the risks posed by an abortion to the mother increased, governments could intervene in order to protect the mother's health. And during the last three months, as the fetus reached viability, governments could regulate and even prohibit abortions.
Following Roe, the challenge for the Supreme Court lay in clarifying what sorts of state government regulations were permissible under the ruling's trimester framework. Could a state require women to obtain their husband's consent before having an abortion? The Court said no. Could a state insist that minors obtain their parents' consent before having an abortion? The Court said yes, if there was a "judicial bypass" mechanism that allowed a minor to circumvent this requirement in certain circumstances, such as cases where incest or abuse was a factor.
The Court also held that a constitutional right to an abortion did not convey a corresponding entitlement to federal dollars for that abortion. The question was raised by the passage of the Hyde Act in 1976 that prohibited the use of federal Medicaid payments for abortions. Critics argued that this denied poor women equal access to abortions and therefore violated the Fifth Amendment's guarantee of equal treatment under the law. But in Harris v. McRae, the United States Supreme Court ruled that the right to an abortion did not convey to a woman "a constitutional entitlement to the financial resources to avail herself of the full range of protected choices."22
By 1987, however, the composition of the Supreme Court had changed. Most significantly, President Ronald Reagan, who in 1983 had pledged to "work to overturn Roe v. Wade," appointed three new justices to the Court.23 In 1989, these three appointees—Sandra Day O'Connor, Antonin Scalia, and Anthony Kennedy—contributed to a new majority that signaled a shifting approach to the issue of abortion. In Webster v. Reproductive Health Services, the Court upheld many parts of a Missouri law that was based on the premise that the "life of each human being begins at conception." 24 The law forbade state employees to conduct abortions and prohibited the use of public facilities for abortions. The law also required fetal viability tests at twenty weeks before performing abortions, rather than twenty-four weeks, the requirement established by Roe's trimester approach.
In 1992, the Court further revised its abortion stance in Planned Parenthood v. Casey. In this case, the Court upheld a constitutionally protected right to abortion, but it eliminated altogether the trimester framework guiding state laws. Instead, the Court held that the government possessed an interest in the fetus prior to the third trimester, and therefore states had broader authority to intervene earlier than the last three months of the pregnancy. A woman still had a privacy right to an abortion, but states could introduce requirements of various sorts so long as they did not pose an "undue burden" or present "substantial obstacles" to this right.
Using this new logic the Court drew a different set of lines when considering state abortion laws. Husband notification and consent laws were still overturned as they imposed an "undue burden." Parent notification and consent laws were still allowed if they contained judicial bypass mechanisms. In addition, the Court now allowed a twenty-four hour waiting period between consultation and procedure, and they upheld state laws requiring health officials to notify women seeking abortions of the health risks involved, the probable age and status of the fetus, alternatives to abortion, and the sorts of public assistance available to mother and child.
Anti-abortion activists were heartened by the Court's evolving position on the issue. But in 2000, they were disappointed when the Court struck down a Nebraska law prohibiting partial birth abortions except when necessary to save the mother's life. A closer look at the Court's decision in Stenberg v. Carhart, however, reveals that its opposition to the Nebraska law was fairly narrow. It complained that the law did not include a provision allowing for abortions necessary to protect the mother's life, and it argued that the abortion method being criminalized was so imprecisely described that the law might discourage doctors from performing legal abortions, thus placing an "undue burden" on women seeking a still-protected right.
Returning to the issue in 2007, with the more carefully constructed Partial Birth Abortion Ban Act of 2003, the Court held that the ban did not present an undue burden on women seeking late-term abortions. The method, defined by the law as an abortion in which the fetus is destroyed after being removed from the womb, is not the most common form of late-term abortion. And in fact, in explaining its decision, the Court pointed out that the more common method of dilation and extraction—in which the fetus is destroyed before removal—was unaffected by the ban and therefore still available to women
Largely because of the continuing availability of other methods, the Court's majority insisted that the essential protections of Roe v. Wade were left unaffected. But critics, including dissenting Justice Ruth Bader Ginsburg, disagreed. Ginsburg argued that the decision signaled a new hostility to abortion rights within the Court. Even though important precedents such as Roe and Casey had not been fully overturned, "the Court, differently composed than it was when we last considered a restrictive abortion regulation, is hardly faithful to our earlier invocations of 'the rule of law' and the 'principles of stare decisis.'"25
To Ginsburg, more important than the details of this particular ruling, was the signal it sent about the direction of the Court. If Ginsburg is correct, the approach of the Court to abortion, and perhaps privacy rights more broadly, dating to the early twentieth century, may come under reconsideration.