Are State Laws Allowed to Restrict Abortion? An Analysis of the Legality of Abortion

Abortion has remained a highly contested legal controversy ever since the revolutionary Roe v. Wade ruling that upheld the constitutional right to abortion until viability—when the fetus can survive outside the uterus—due to the compelling government interest in the woman’s life and the right to liberty and privacy guaranteed by the Fourteenth Amendment. In recent years, however, individual states have increasingly restricted this right. In particular, a Mississippi law termed the Gestational Age Act  “prohibits abortions after 15 weeks, except for… medical emergency or severe fetal abnormality,” thereby significantly restricting a woman’s legal access to abortion and penalizing abortion providers. [1] Subsequently, a lawsuit challenging the constitutionality of this legislation has been appealed to the Supreme Court after the petition for certiorari—an appeal to the Supreme Court to review a case given the prior court’s improper decision—was granted, even as both the district court and the Fifth Circuit Court of Appeal struck it down as unconstitutional. [2]  Overturning the right to abortion through Dobbs v. Jackson Women’s Health Organization would contradict legal precedent, for further restricting the right to abortion infringes on the right of bodily integrity, which largely prevents state involvement in personal medical decisions.

Citing the principle of bodily integrity in the Fourth Amendment jurisprudence, the court has defended abortion as an essential element of the Constitution’s implicit right to privacy. Before Roe v. Wade, the first case to address medical privacy was Union Pacific Railway Company v. Botsford (1891), which upheld the right to bodily autonomy. [3] Delivering the opinion on behalf of the court’s majority, Justice Horace Gray emphasized that “no right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others unless by clear and unquestionable authority of law.” [4] Regardless of whether the Constitution directly delineated this right, the court held that it should be perceived as equally important to the Constitution’s enumerated rights, stressing its “sacred” status in the common law tradition. While Union Pacific Railway focused on invasive medical examinations for court evidence, it extended the right to be “free from all restraint or interference” to the broader concept of bodily autonomy, as associated with privacy. [5] At the same time, the emphasis on “clear and unquestionable authority of law” eliminated the opportunity for highly contested issues to be ruled upon without unanimity. This precedent clearly defines bodily autonomy, allowing the right to privacy to prove abortion’s legality.

The court affirmed the right to privacy in Griswold v. Connecticut (1965), which discredited a law banning contraceptives within marriage. [6] In a 7-2 ruling, Justice William Douglass delivered the majority opinion, declaring that “by broadly interpreting the first, third, fourth, and fifth amendments, the majority found contraception to be an inexplicit protected right of privacy.” [7] Interpreting four different Amendments from the Bill of Rights, the court decided that one can “find” a right to privacy implicit in the Constitution without overextending the law. Griswold became a precursor to cases determining abortion’s legality. It was, however, not a unanimous decision, with the dissenting opinion holding that “they could not find that the Constitution in any way directly created a right to privacy in these circumstances.” [8] This constitutional reading from the court’s conservative wing warrants further scrutiny, however, as the rule of law was meant to be interpreted both inclusively and expansively. Court interpretation is vital to the Constitution’s adaptability; thus, the reference to four amendments in Griswold v. Connecticut supports privacy’s legality and this law’s illegality.

The right to privacy embedded in the Constitution becomes the basis for an expansive Fourteenth Amendment right to liberty, including the right to abortion. In the landmark Supreme Court case Roe v. Wade (1973), the court equated abortion to women’s right to privacy and pointing to the Bill of Rights’ notion of “sexual privacy.” [9] The court proclaimed that “in a Constitution for a free people, there can be no doubt that the meaning of ‘liberty’ must be broad indeed.” [10] Focusing on women, the court determined that being forced to continue a pregnancy invokes unnecessary and possibly life-threatening risks. It also stated that states cannot decide when life begins, as life’s beginning differs based on religious views, and that the “unborn” were not classified as legal “persons.” [11] At the same time, the court held that the right to abortion is not absolute and created the trimester breakdown. Through this mechanism, the court outlined when a state could intervene: the first trimester prohibited any regulations, the second allowed for those reasonable to the woman’s health, and the third permitted more protections for potential human life unless the woman’s health was at significant risk. [12] These provisions granted women access to abortions and restricted the time frame until the second trimester. The court relied heavily on the right to privacy when upholding abortion’s legality

Abortion was again debated before the court in Planned Parenthood v. Casey (1992), regarding whether a Pennsylvanian law that required a married woman or a minor to receive consent from her husband or one parent first before having an abortion was constitutional. [13] This case, again, the Court majority defended a woman’s privacy, upholding Roe v. Wade based on the principle of stare decisis. Here the Supreme Court held that “a woman’s decision to terminate her pregnancy is a ‘liberty’ protected against state interference by the substantive component of the Due Process Clause of the Fourteenth Amendment.” [14] Reiterating the pivotal connection to the Fourteenth Amendment, the decision solidified abortion’s legality until fetal viability and discredited further opposition. In place of the trimester system, Casey created the “undue burden standard” where “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.” [15] The court further expressed that any obstruction to a woman’s abortion would violate her right. 

Despite being affirmed twice, a dissenting opinion from the Chief Justice William Rehnquist and Associate Justices Byron White, Antonin Scalia, and Clarence Thomas continued to state that they “do not support … the right to terminate one's pregnancy [as] ‘fundamental,’ [and] thus, enactments abridging that right need not be subjected to strict scrutiny,” the highest standard of judicial review. [16] The Pennsylvanian law questioned privacy and bodily integrity’s validity; however, prior courts, such as in Union Pacific Railway, had long determined that this right was “sacred.” [17] A right, regardless of what it represents, is fundamental; the Court has the ability to protect all rights to the same degree. While overturning a precedent is not impossible, overruling abortion’s legality would delegitimize the right to privacy and diminish the Court’s authority if it is constantly swayed by the politics of the bench. Additionally, federal law remains superior to state law, so the Court’s decision to enact the undue burden standard cannot be contradicted by any state law to ban or further restrict abortion as Dobbs v. Jackson Women’s Health Organization currently contests. 

Despite the Supreme Court’s repeated defense of the right to abortion until viability, recent state legislations have placed further restrictions on women seeking an abortion. At least eighteen states, including Mississippi, Texas, Florida, and most recently Idaho, have placed pre-viability bans on abortion. [18] In Dobbs v. Jackson Women’s Health Organization, the court will review “Mississippi’s ban on all elective abortions after fifteen weeks of pregnancy” and its punishment of abortion providers “includ[ing] license suspension or revocation.” [19] The district court first reviewing the case determined that the state’s argument rooted in “scientific advancements” proving “fetuses could sense outside stimulation at twelve weeks” could not support a state law that violated women’s rights to privacy; they upheld the viability standard. [20] The Fifth Circuit Court of Appeals also upheld the district court’s decision, citing legal precedent; a subsequent appeal brought Dobbs before the Supreme Court. [21] 

The main argument before the Supreme Court lies in whether the Constitution should be interpreted explicitly or implicitly. Much opposition believes that abortion is not a fundamental liberty, which agrees with past cases’ dissenting opinions. [22] Directly questioning Planned Parenthood v. Casey, Scott G. Stewart, the solicitor general of Mississippi, argues that “the undue-burden test…is too subjective.” Women’s Health, however, issues a rebuttal—that the undue-burden test “only applies to abortion regulations, whereas the present case involves an abortion ban.” [23] The court has to weigh between “the government’s power and duty to protect public health and life in a broad, general, and abstract sense” and “individual’s interests in her own health or life,” but this pre-viability law constitutes an outright ban on abortion as it counters the court’s prior viability standard for abortions. [24] The government’s heavy intervention in a woman’s medical decisions induces a “profound cost” on her individual interest and puts her at risk. 

Despite legal precedent and the fight for abortion until viability of prior Supreme Court cases, the right to abortion continues to be scrutinized heavily, leaving Dobbs to determine the future of abortion. The Court continues to reaffirm the ratio decidendi of this right, yet it has skirted around a clear, concrete test or standard of review that would have not only comprehensively protected abortion under the legal formulation, but also given the Court credibility in its decision so that abortion could truly become a “settled law.” Instead, the vagueness in the current “undue burden” test only invites controversy, politicization, and challenges. A main argument against abortion’s legality, based on a textualist view of the Constitution, maintains that the so-called “viability rule” is not explicitly in the Constitution, so it should only be enforced at the state’s discretion. [25] However, by this same logic, Jackson Women’s Health Organization currently argues, schools should continue to be segregated because integrated schools are not directly written into the Constitution and schools fall under state jurisdiction. [26] Although states have jurisdiction over citizens’ well-being, some laws benefit from being applied on a national level and the Constitution is meant to be adapted to an ever-changing society. Before Brown v. Board of Education (1954), integrated schools would not be legal, yet the court was able to apply the Fourteenth Amendment to allow it. Integrated schooling may not be a “fundamental right,” but it has become integral to constitutional equality and adaptability. The right to abortion must be similarly upheld.

Other opponents argue that abortion does more harm than good for women. This position rebukes the view that abortion promotes gender equality, yet it does not account for the career sacrifices, financial burdens, health risks, and other obstacles that an unwanted pregnancy brings, which men do not have to endure. [27] Banning abortion creates further barriers for women in male-dominated fields and will lead to even greater marginalization for groups who currently struggle with accessibility. If the ban is upheld, wealthy white women will most likely continue to have access to safe abortions in Democrat-majority states, unlike low-income and minority groups who may face more obstacles to this medical service. 

Moreover, while many in opposition emphasize abortion’s immorality, their main fear lies in late-term abortions—which in reality are very rare. According to the U.S. Center for Disease Control and Prevention (CDC), only 1.3% of abortions occur after the gestational age (approximately twenty-one weeks). [28] The restrictions will simply open an opportunity to continue restricting abortions. The courts should intervene and protect women’s liberty before future laws seek to forestall the right to abortion in a future Supreme Court case based on another technicality. 

Legal precedent upholds abortion through viability based on liberty, privacy, and bodily integrity within the Constitution; however, Dobbs v. Jackson Women’s Health Organization’s threat to effectively ban abortion before viability questions the Court’s commitment to upholding this women’s right. The Court should respect the principle of stare decisis and declare the Mississippi ban unconstitutional. If it supports this pre-viability law, it will counter constitutional precedent and its own authority in upholding the rule of law.

Edited by Alexander Liebeskind

Sources:

[1] Tori Stayley and Jenny Guo. 2022. Dobbs v. Jackson Women’s Health Organization (2022). Legal Information Institute, Online at https://www.law.cornell.edu/supct/cert/19-1392 (visited March 26, 2022).

[2] Ciyou & Dixon, P.C. 2022. “What Is A Petition For Certiorari?” Ciyou & Dixon, P.C. https://www.ciyoudixonlaw.com/appellate/what-is-a-petition-for-certiorari/ (visited March 4, 2022); Stayley and Guo, Dobbs v. Jackson.

[3] Union Pacific Railway Co. v. Botsford, 141 U.S. 250 (1891). Justia. Online at  https://supreme.justia.com/cases/federal/us/141/250/ (visited March 4, 2022).

[4] Id.

[5] Id.

[6] Griswold v. Connecticut, 381 U.S. 479 (1965). Legal Information Institute 2022. Online at https://www.law.cornell.edu/wex/griswold_v_connecticut_%281965%29 (visited March 4, 2022).

[7] Id.

[8] Id.

[9] Laura Temme. 2021. Reviewed by Ally Marshall. “Roe v. Wade Case Summary: What You Need to Know.” FindLaw. https://supreme.findlaw.com/supreme-court-insights/roe-v--wade-case-summary--what-you-need-to-know.html (visited March 4, 2022).

[10] Id.

[11] Id.

[12] Id.

[13] Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992). Legal Information Institute. Online at https://www.law.cornell.edu/supct/html/91-744.ZS.html  (visited March 4, 2022).

[14] Id.

[15] Id.

[16] Id.

[17] Union Pacific Railway Co. v. Botsford, 141 U.S. 250 (1891). Justia. Online at  https://supreme.justia.com/cases/federal/us/141/250/ (visited March 4, 2022).

[18] Guttmacher Institute. 2022. “Is Abortion Legal in My State, and What Happens if Roe v. Wade is Overturned?” Interactive Map. Planned Parenthood. Interactive Map. https://www.plannedparenthoodaction.org/abortion-access-tool/US (visited March 26, 2022); Ridler, Keith. 2022. “Idaho governor signs abortion ban modeled on Texas law.” ABC News. https://abcnews.go.com/Health/wireStory/idaho-governor-signs-abortion-ban-modeled-texas-law-83628634 (visited March 26, 2022).

[19] Stayley and Guo, Dobbs v. Jackson.

[20] Id.

[21] Stayley and Guo, Dobbs v. Jackson.

[22] Id.

[23] Id.

[24] B.J. Hill. 2006. “The Constitutional Right to Make Medical Treatment Decisions: A Tale of Two Doctrines.” Case Western Reserve University School of Law Scholarly Commons. https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1142&context=faculty_publications (visited March 4, 2022).

[25] Stayley and Guo, Dobbs v. Jackson.

[26] Id.

[27] Id.

[28] M.D. Jatlaoui, Tara C., Maegan E. Boutot, MS, Michele G. Mandel, Maura K. Whiteman, PhD, Angeline Ti, MD, Emily Petersen, MD, and Karen Pazol, PhD. 2018. “Abortion Surveillance — United States, 2015 | MMWR.” CDC. https://www.cdc.gov/mmwr/volumes/67/ss/ss6713a1.htm (visited March 4, 2022).