Abortion in the United States

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Abortion in the United States is a highly-charged issue with significant political and ethical debate. In a medical sense, the word abortion refers to any pregnancy that does not end in live birth. In the debate, however, abortion is almost always used to mean "induced abortion," as contrasted to "spontaneous abortion" or "miscarriage".

Legal aspects

Parental notification and consent laws in the U.S.

Mandatory waiting period laws in the U.S.

The current judicial interpretation of the U.S. Constitution regarding abortion in the United States, following the Supreme Court of the United States's 1973 landmark decision in Roe v. Wade, and subsequent companion decisions, is that abortion is legal but may be restricted by the states to varying degrees.

The official report of the U.S. Senate Judiciary Committee, issued in 1983 after extensive hearings on the Human Life Amendment (proposed by Senators Hatch and Eagleton), concluded:

"Thus, the Committee observes that no significant legal barriers of any kind whatsoever exist today in the United States for a woman to obtain an abortion for any reason during any stage of her pregnancy." Report, Committee on the Judiciary, U.S. Senate, on Senate Joint Resolution 3, 98th Congress, 98-149, June 7, 1983, p. 6

However, there have been subsequent court decisions, and numerous state laws, addressing the underlying right to obtain, or affecting access to, abortion. As of February 22, 2006, South Dakota became the first U.S. state to pass a law to ban abortion in all cases except for indirect abortion (legally and morally not abortion) in which the death of the fetus is an undesired but unavoidable side effect of steps necessary to save the mother's life. The law will be enforced as of June 1, 2006. The measure was passed in the Senate 23 to 12. The bill is intended to enable the Supreme Court to reconsider its previous ruling in the "Roe" case.

U.S. courts have upheld abortion, which may only be limited by the states in certain specific ways, such as restrictions on later term abortions, requiring parental notification for minors, or right to know laws which require the disclosure of abortion risk information to patients prior to treatment.

Much of the ensuing debate has been in determining when the fetus is "viable" outside the womb as a measure of when the "life" of the fetus is its own (and thereby requiring protection of the state), or under the control of the woman. In the majority opinion delivered by the court in Roe v. Wade, viability was defined as "potentially able to live outside the woman's womb, albeit with artificial aid. Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks." When the court ruled in 1973, the current medical technology suggested the viability could occur as early as 24 weeks. Advances over the past three decades have allowed fetuses that are less than 24 weeks old to survive outside the woman's womb. These scientific achievements, while life saving for premature babies, have made the determination of being "viable" somewhat more complicated.

Though abortion is legal in many Western European countries, the procedure is more widely available in the United States. U.S. abortion law, in terms of how late an abortion may take place, is far more permissive than that of other nations such as France, Germany, and the United Kingdom, for example. For instance, in France, unless the fetus is severely deformed or the woman's health is at risk, any abortion after the first trimester is illegal. Canada is more permissive, granting abortion on demand, while Australia places heavier restrictions on the procedure.

Abortion statistics

Because reporting of abortions is not mandatory, statistics are of varying reliability. The most reliable and consistent statistics come from the Centers For Disease Control and the Guttmacher Institute.

Number of abortions in United States

On the basis of current abortion rates, one in three American women will have had an abortion by the age of 45.

Reasons for abortions

According to the Guttmacher Institute, there were 1.31 million abortions in the US in 2000, and cases of rape or incest accounted for 1.0% of abortions in 2000. Another study revealed that women reported the following reasons for choosing an abortion:

25.5% Want to postpone childbearing
21.3% Cannot afford a baby
14.1% Has relationship problem or partner does not want pregnancy
12.2% Too young; parent(s) or other(s) object to pregnancy
10.8% Having a child will disrupt education or job
7.9% Want no (more) children
3.3% Risk to fetal health
2.8% Risk to maternal health
2.1% Rape, Incest, Other

When women have abortions (in weeks from conception)

**Data source**: Centers for Disease Control and Prevention

Abortion before Roe

There were few laws on abortion in the United States at the time of independence. In some cases, it was governed by English common law, which found abortion to be legally and ethically acceptable if occurring before quickening. Laws against abortion began to appear in the 1820s. Connecticut outlawed post-quickening abortions in 1821, and New York made post-quickening abortions a felony and pre-quickening abortions a misdemeanor eight years later. Many of the early laws were motivated not by ethical concerns about abortion but by worry about the safety of the procedure. However, many early feminists, including Susan B. Anthony and Elizabeth Cady Stanton, argued against abortion, favoring birth control instead. The former wrote:

"Guilty? Yes, no matter what the motive, love of ease, or a desire to save from suffering the unborn innocent, the woman is awfully guilty who commits the deed. It will burden her conscience in life, it will burden her soul in death; but oh! thrice guilty is he who, for selfish gratification, heedless of her prayers, indifferent to her fate, drove her to the desperation which impels her to the crime."

The movement accelerated during the 1860s, and by 1900 abortion was largely illegal in every state. Some states did include provisions allowing for abortion in limited circumstances, generally to protect the woman's life or pregnancies due to rape or incest. Abortions continued to occur, however, and increasingly became readily available. Illegal abortions were, however, often unsafe, sometimes resulting in death, as in the case of Gerri Santoro.

Some activist groups developed their own skills to provide abortions to women who could not obtain them elsewhere. As an example, in Chicago, a group known as "Jane" operated a floating abortion clinic throughout much of the 1960s. Women seeking the procedure would call a designated number and be given instructions on how to find "Jane."

In 1967, Colorado became the first state to legalize abortion in cases of rape, incest, or in which pregnancy would lead to permanent physical disability of the woman. Similar laws were passed in California, Oregon, and North Carolina. In 1970, New York repealed its 1830 law and allowed abortions up to the 24th week of pregnancy on demand. Similar laws were soon passed in Alaska, Hawaii, and Washington. A law in Washington, DC, which allowed abortion to protect the life or health of the woman, was challenged in the Supreme Court in 1971 in United States v. Vuitch. The court upheld the law, deeming that "health" meant "psychological and physical well-being," essentially allowing abortion on demand. By the end of 1972, 13 states had a law similar to that of Colorado, while Mississippi allowed abortion in cases of rape or incest only and Alabama allowed abortions in cases of the woman's physical health. Thirty-one states still allowed abortion to protect the woman's life only. In order to obtain abortions during this period, women would often travel from a state where abortion was illegal to states where it was legal.

Roe v. Wade

In deciding Roe v. Wade, the Supreme Court ruled that a Texas statute forbidding abortion except when necessary to save the life of the woman was unconstitutional. The Court arrived at its decision by concluding that the issue of abortion and abortion rights falls under the right to privacy. In its opinion it listed several landmark cases where the court had previously found that right implied by the Constitution. The court held that a first-trimester embryo or fetus was not a person under the Constitution, and that a right to privacy existed and included the right to have an abortion. The court further ruled that the state could intervene to restrict abortion in the second trimester of development and could outlaw it altogether in the third trimester (about 4/5 of U.S. states forbid third-trimester abortion except as necessary for the woman's health, but which, as we see in Doe, is broadly defined.)

A central issue in the Roe case (and in the wider abortion debate in general) is whether human life begins at conception, birth, or at some point in between. The Court declined to make an attempt at resolving this issue, noting: "When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer." Instead, it chose to point out that historically, under English and American common law and statutes, "the unborn have never been recognized...as persons in the whole sense" and thus fetuses are not legally entitled to the protection afforded by the right to life specifically enumerated in the Fourteenth Amendment. So rather than asserting that human life begins at any specific point, the court simply declared that the State has a "compelling interest" in protecting "potential life" at the point of viability.

The 1973 Companion case to Roe, Doe v. Bolton, expanded the right to abortion in the United States up to the moment of birth if her doctor "in his best clinical judgment", in light of the patient's age, "physical, emotional, psychological familial" circumstances, finds it "necessary for her physical or mental health". However, this definition of "health" allowed any doctor willing to perform a late-term abortion the legal option to do so, thereby removing the trimester requirements of Roe, although they were not officially overturned until 1992.

Jane Roe and Mary Doe

"Jane Roe" of the landmark Roe v. Wade lawsuit, whose real name is Norma McCorvey, is now a strong Pro-life advocate. McCorvey writes that she never had the abortion and became the "pawn" of two young and ambitious lawyers who were looking for a plaintiff who they could use to challenge the Texas state law prohibiting abortion. However, attorney Linda Coffee says she doesn't remember McCorvey having any hesitancy about wanting an abortion.

"Mary Doe" of the companion Doe v. Bolton lawsuit, whose real name is Sandra Cano, maintains that she never wanted or had an abortion and that the she is "ninety-nine percent certain that did not sign" the affidavit to initiate the suit.

Later judicial decisions

The 1992 case of Planned Parenthood v. Casey overturned Roe's strict trimester formula, and emphasized the right to abortion as grounded in the general sense of liberty protected under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, rather than a generalized right to privacy. Advancements in medical technology, expected to continue, meant that a fetus might be considered viable, and thus have some basis of a right to life, at 22 or 23 weeks rather than at the 28 that was more common at the time Roe was decided. For this reason, the old trimester formula was ruled obsolete, with a new focus on viability of the fetus.

In the United States the issue has become deeply politicized: in 2002, 84% of state Democratic platforms supported abortion while 88% of state Republican platforms opposed it. This divergence also led to Christian Right organizations like Christian Voice, Christian Coalition and Moral Majority having an increasingly strong role in the Republican Party. This opposition has been extended under the Foreign Assistance Act: in 1973 Jesse Helms introduced an amendment banning the use of aid money to promote abortion overseas, and in 1984 the Mexico City Policy prohibited financial support to any overseas organization that performed or promoted abortions. The "Mexico City Policy" was revoked by President Bill Clinton and subsequently reinstated by President George W. Bush. Several items of legislation impacting on abortion, including the Child Custody Protection Bill, are awaiting Congressional debate (February 2003).

Legislative developments

Since 1995, led by Congressional Republicans, the U.S. House of Representatives and U.S. Senate have moved several times to pass measures banning the procedure of "partial-birth" abortions. After several long and emotional debates on the issue, such measures passed twice by wide margins, but President Bill Clinton vetoed those bills in April 1996 and October 1997 on the grounds that they did not include health exceptions. Congressional supporters of the bill argue that a health exception would render the bill unenforceable, since the Doe vs. Bolton decision defined "health" in vague terms, justifying any motive for obtaining an abortion. Subsequent Congressional attempts at overriding the veto were unsuccessful.

On October 2, 2003, with a vote of 281-142, the House again approved a measure banning the procedure called the Partial-Birth Abortion Ban Act (HR 760). Through this legislation, a doctor could face up to two years in prison and face civil lawsuits for performing such an abortion. A woman who undergoes the procedure cannot be prosecuted under the measure. The measure contains an exemption to save a woman's life; it does not permit the procedure unless her life is threatened. On October 21, 2003, the United States Senate passed the same bill by a vote of 64-34, with a number of Democrats joining in support. The bill was signed by President George W. Bush on November 5, 2003, but a federal judge blocked its enforcement in several states just a few hours after it became public law.

In contrast, the government of Quebec, in Canada, is currently actively searching for a doctor who will perform a third term abortion. At the present time, unless the pregnancy is a large risk to the woman's health, there is no doctor in Quebec that will perform a third term abortion and so the province needs to send patients requiring one to the US. The statistics on those requiring third term abortions in Quebec have shown that they are often the most disadvantaged. As Quebec is generally the most liberal regarding abortion rights, it is likely that there is difficulty getting a third term abortion anywhere in Canada, even though there are no laws concerning the issue at all in Canada (see Abortion in Canada). This suggests however that legislation is not the only factor that affects access to abortion for women.

Several federal courts are examining the constitutionality of the Partial-Birth Abortion Ban Act. Federal Judge Phyllis Hamilton of California struck it down on June 2, 2004 on three grounds:

It places an 'undue burden' (i.e., "a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus") on women seeking abortion.
Its language is unconstitutionally vague.
It lacks constitutionally-required provisions to preserve women's health (the law only provides for cases in which a woman's life is at risk).

Similar decisions are expected from federal courts of Nebraska and New York.

In Judge Hamilton's decision, some concerns over nomenclature were also raised. Not the term favored by abortion practitioners, "partial-birth" abortions are often confused with third-trimester abortions, specifically the procedure known by abortion practitioners as intact dilation and extraction. Intact dilation and extraction often involves cases of wanted pregnancies in which the fetus develops hydrocephalus, in which the head of a fetus may expand to a size of up to 250% of the radius of an adult skull. This condition also very often causes fetal death or fetal mental retardation. Vaginal delivery of a full-term infant is often fatal for women, although cesarean birth does not incur more than its usual risk. Hydrocephalus is usually not discovered until the second trimester, which is why many consider late-term abortion.

The Unborn Victims of Violence Act, commonly known as "Laci and Conner's Law" was passed by Congress and signed into law by President Bush on April 1, 2004, allowing two charges to be filed against someone who kills a pregnant woman (one for the woman and the one for the fetus). It specifically bans charges against the woman and/or doctor relating to abortion procedures. Nevertheless, it has generated much controversy among right-to-abortion advocates. They view it as a potential step in the direction of banning abortion.

In 2003, the American Civil Liberties Union, National Abortion Federation, and other abortion rights groups planned to file lawsuits challenging the constitutionality of the bill. Several courts have struck down similar state statutes.

On March 6, 2006 the state of South Dakota banned all abortions except those done to save the life of the mother, "in hopes of drawing a legal challenge that will cause the US Supreme Court to reverse its 1973 decision legalizing abortion," according to the Associated Press. Opponents of the law gathered enough signatures for a referendum on the November 7, 2006 ballot in which the law was rejected 56-44%.

Positions of U.S. political parties

Though members of both major political parties come down on either side of the issue, the Republican Party is often seen as being pro-life, since the official party platform recognizes the right of the unborn child to life. Republicans for Choice represents the minority of that party.

The Democratic Party platform considers abortion to be a woman's right, while the group Democrats for Life of America has growing strength within their own party. Chairman Howard Dean has welcomed pro-life Democrats more than previous chairs and DFLA's 95-10 Initiative has increasing support. There is also a large disconnect between convention delegates who pass the party platform and rank and file Democrats. In 2006 pollsters found that 74% of Democrats favor the availability of abortion in most circumstances. However, in 2004, forty-three percent (43%) of all Democrats believed that abortion "destroys a human life and is manslaughter." Of Democratic National Convention delegates 64% believed that abortion should be generally available while only 37% of all Democratic voters believed that it should be generally available. The same poll showed that more than half of Democratic voters believed that abortion should be generally available or available with some restrictions, however.

The US Green Party supports abortion as a woman's right and the US Libertarian Party opposes federal laws pertaining to abortion and any government funding of abortion.

The official platforms of the major political parties in the US are as follows:

The US Republican Party

"As a country, we must keep our pledge to the first guarantee of the Declaration of Independence. That is why we say the unborn child has a fundamental individual right to life which cannot be infringed. We support a human life amendment to the Constitution and we endorse legislation to make it clear that the Fourteenth Amendment’s protections apply to unborn children. Our purpose is to have legislative and judicial protection of that right against those who perform abortions. We oppose using public revenues for abortion and will not fund organizations which advocate it. We support the appointment of judges who respect traditional family values and the sanctity of innocent human life."
"Ban abortion with Constitutional amendment. We say the unborn child has a fundamental right to life. We support a human life amendment to the Constitution and we endorse legislation that the 14th Amendment’s protections apply to unborn children. Our purpose is to have legislative and judicial protection of that right against those who perform abortions. We oppose using public revenues for abortion and will not fund organizations which advocate it. We support the appointment of judges who respect the sanctity of innocent human life."
"Alternatives like adoption, instead of punitive action. Our goal is to ensure that women with problem pregnancies have the kind of support, material and otherwise, they need for themselves and for their babies, not to be punitive towards those for whose difficult situation we have only compassion. We oppose abortion, but our pro-life agenda does not include punitive action against women who have an abortion. We salute those who provide alternatives to abortion and offer adoption services."

The US Democratic Party

"Support right to choose even if mother cannot pay. Because we believe in the privacy and equality of women, we stand proudly for a woman's right to choose, consistent with Roe v. Wade, and regardless of her ability to pay. We stand firmly against Republican efforts to undermine that right. At the same time, we strongly support family planning and adoption incentives. Abortion should be safe, legal, and rare."
"Choice is a fundamental, constitutional right. Democrats stand behind the right of every woman to choose. We believe it is a constitutional liberty. This year’s Supreme Court ruling show us that eliminating a woman’s right to choose is only one justice away. Our goal is to make abortion more rare, not more dangerous. We support contraceptive research, family planning, comprehensive family life education, and policies that support healthy childbearing."

The US Libertarian Party

"The Issue: Recognizing that abortion is a sensitive issue and that people can hold good-faith views on both sides, we believe that government should be kept out of the matter, leaving the question to each person for their conscientious consideration."
"The Principle: Taxpayers should not be forced to pay for other people's abortions, nor should any government or individual force a woman to have an abortion."
"Solutions: We oppose government actions that either compel or prohibit abortion, sterilization or any other form of birth control. We oppose government laws and policies that restrict the opportunity to choose alternatives to abortion."
"Transitional Action: We support an end to all subsidies for childbearing or child prevention built into our present laws."

Effects of legalization

Some supporters of legal abortion argue that legalization has resulted in a dramatic fall in women dying from abortion. From 1940 through 1970, deaths of the pregnant woman during abortion fell from nearly 1,500 to a little over 100. According to the Center for Disease Control, the number of women who died in 1972 from both legal and illegal abortion was 64. In 1973, the number had fallen to 47. However, Dr. Mary Calderone, a former director of Planned Parenthood, said that even during the period of illegal abortion:

"Abortion is no longer a dangerous procedure. This applies not just to therapeutic abortions as performed in hospitals but also to so-called illegal abortions as done by physician. In 1957 there were only 260 deaths in the whole country attributed to abortions of any kind…Second, and even more important, the conference estimated that 90 percent of all illegal abortions are presently being done by physicians…Whatever trouble arises usually arises from self-induced abortions, which comprise approximately 8 percent, or with the very small percentage that go to some kind of non-medical abortionist…So remember…abortion, whether therapeutic or illegal, is in the main no longer dangerous, because it is being done well by physicians."

Steven Levitt, an American economist at the University of Chicago, and John Donahue argued in their paper "The Impact of Legalized Abortion on Crime" that the legalization of abortion in the US was followed approximately sixteen years later by a reduction in crime. He argued that unwanted children commit more crime than wanted children, that the legalization of abortion resulted in fewer unwanted children, and so the legalization of abortion caused a reduction in crime.

See also: Legalized abortion and crime effect, Roe effect

Opposition to abortion

Organizations and individuals opposing abortion in the United States typically focus on one of two primary strategies: limitation and prevention. Those focusing on limitation participate in lobbying, rallies, and grassroots efforts to influence the public and lawmakers. The most common prevention strategy is the manning of pregnancy help centers, also called Crisis Pregnancy Centers or CPC's. These centers provide pregnancy tests and present women with information intended to lead them to reject abortion. They also provide practical help which varies according to the organization's means, ranging from help obtaining public assistance to providing housing and medical care.

The most highly visible prevention activity is presence outside abortion facilities. The activity outside the facility can range from simply handing out brochures to attempts to totally block entrance. Typical activity is a mix of protesters holding signs and "sidewalk counselors" attempting to speak to those entering the facility in the hope of dissuading them. One popular method of attempting to dissuade women from entering the facility is the "Chicago method" which consists of obtaining legal complaints against the facility and/or practitioner and giving copies of these complaints to patients and their companions.

Pro-life groups include American Victims of Abortion and Women Exploited By Abortion (WEBA). Recently these women have begun organizing movements such as the Silent No More and Women Deserve Better campaigns. These groups and campaigns focus on rallies, support groups, and grassroots efforts to reach and mobilize others who have had similar experiences.

Abortion is strongly opposed by the Roman Catholic Church and other religious denominations which have become politically active by advocating restrictions on abortion and supporting or opposing candidates for office based on their position on the issue. The focal point of their efforts has been overturning Roe v. Wade. Other religious actions include the erection of Pro-Life memorials on church property, prayer, and fasting.

Pro-Life Organizations

In the 1980s and 1990s, many opponents of legal abortion turned to speaking with abortion clinics and women seeking abortions. The organization Operation Rescue carried out organized picketings, occupations, and blockades of abortion clinics, in which hundreds of pro-life activists would surround clinics in an attempt to shut them down.

Operation Rescue went bankrupt in the course of defending itself in the case Scheidler v. National Organization for Women, Inc.. Many of its tactics were specifically outlawed by the Freedom of Access to Clinic Entrances Act, known as the "FACE Act" or "Access Act". This led to a split among pro-life activists, with some continuing to picket and provide sidewalk counseling within the limits of the FACE Act, and a small minority turning to violence. The activities of pro-life activists were moderated following the 2000 election of President George W. Bush, whose outspoken opposition to abortion gave new hope to such political efforts, as well as the highly visible arrests and convictions of several violent extremists.

Differences in abortion access by state

Because of the nature of the split between federal and state law, access to abortion continues to vary by state and from area to area within states. In addition, the ability to have a clinic that will provide abortions can be made very difficult. In the case of one such clinic proposal, it was ruled that it could be established (based on federal law), but that the clinic could not use the local water mains or sewers, effectively stifling the idea.

With regard to income level and accessibility, many federal and state health programs which poor women rely on for their health care do not cover abortions. Also, the cost of an abortion can vary widely. Therefore, it is much easier for a woman with sufficient funds to terminate a pregnancy than a poor woman, resulting in unequal access. Another way that access to abortion differs is based on race and disability. There are already statistics which show that women who are not white or women who have disabilities have a much harder time accessing abortion because of racism and ableism/disablism.

Notes

South Dakota abortion ban may challenge Roe. Sam Howe Verhovek. February 25, 2006.
http://www.guttmacher.org/in-the-know/incidence.html Abortion Incidence in the United States
Reasons Why Women Have Induced Abortions: Evidence from 27 Countries. Bankole et al. International Family Planning Perspectives. 1998]
The Revolution. July 8, 1869.
An Interview with Norma McCorvey. Ann Scheidler, Chicago Pro-life Action League. April 20, 1996.
Affidavit of Sandra Cano. January 2, 2005.
South Dakota bans most abortions. CNN. March 5, 2006.
S.Dakota election results. CNN, Nov. 2006
http://www.zogby.com/soundbites/ReadClips.dbm?ID=6982
GOP party platform 2004, p.84.
Republican Platform adopted at GOP National Convention Aug 12, 2000.
Republican Platform adopted at GOP National Convention Aug 12, 2000.
The Democratic Platform for America, p.36 Jul 10, 2004.
Democratic National Platform Aug 15, 2000.
Libertarian Party Platform
"Induced termination of pregnancy before and after Roe v. Wade" JAMA, 12/9/92, vol. 208, no. 22, p. 3231-3239.
http://www.cdc.gov/mmwr/preview/mmwrhtml/ss5309a1.htm
http://www.nrlc.org/abortion/facts/responseargument4.html
Group of Bishops Using Influence to Oppose Kerry. New York Times. October 12, 2004.
Access to Reproductive Health Clinics and Places of Religious Worship. U.S. Department of Justice Civil Rights Division Special Litigation Section. October 20, 1999.

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