In this second article of a five-part series, Lyle Denniston surveys the constitutional issues developing on abortion. Later articles will deal with health care, same-sex marriage, and elections. The first article dealt with the war on terrorism.
On January 22, as happens on that day every year, a crowd will gather in front of the Supreme Court to rally against Roe v. Wade. Though that ruling establishing a woman’s constitutional right to seek an abortion came down nearly forty-one years ago, it remains deeply controversial in America. The efforts to get it overturned, or at least narrowed down, continue unabated.
Long after it became clear that Congress would not send to the states a proposed constitutional amendment to nullify the Roe decision, the foes of abortion have found increasingly that they are more likely to have success if they seek restrictions, one state legislature at a time. A wave of new state abortion control laws is just beginning to flow through the inevitable court contests, on the way perhaps to the Supreme Court.
It has been more than six years since the Supreme Court last issued a major ruling on abortion laws. It upheld then a federal law, passed by Congress in 2003, that imposed a nearly total ban on a method known as “partial-birth abortion” – a procedure only used in mid- to late-term abortions. Even though its impact was limited, the ruling gave new energy to the anti-abortion movement, with some of its leaders proclaiming at the time that this decision was the first real sign that Roe v. Wade ultimately would be doomed.
That ruling, in Gonzales v. Carhart, was written by Justice Anthony M. Kennedy who then held – and probably still holds – the deciding vote on abortion issues. It was Kennedy, of course, who in 1992 had helped craft a compromise decision that salvaged most of Roe v. Wade, but that also provided new constitutional respect for the life of the developing fetus.
Kennedy’s opinion in the partial-birth abortion case enhanced that display of constitutional respect for fetal life. He wrote: “The government may use its voice and its regulatory authority to show its profound respect for the life within the woman.”
Since that ruling, the anti-Roe movement has been shifting its strategy away from seeking outright bans on specific methods of abortion, and toward attempts to regulate the circumstances in which terminating pregnancy will be allowed, or forbidden. Much of that strategy is aimed at building upon the protection of the developing fetus, seeing in Kennedy’s 2007 opinion an implied invitation to take that specific route.
Beginning with the view that fetal life begins at conception, such laws seek to push earlier into the cycle of pregnancy the point at which a state can step in to protect the fetus. Some of those laws seek to provide fetal protection as early as six weeks into the pregnancy.
Those laws are, of course, a more direct challenge to Roe, because they would forbid abortions in the first trimester – the stage in pregnancy where the Supreme Court has provided the most protection for the pregnant woman’s choice to terminate. They thus would probably appear, to courts, to be the equivalent of a flat ban, not a mere regulation.
But some of these laws would forbid abortions after 20 weeks. Laws like that are defended not as a flat ban at that point, but rather as attempts to protect fetuses from feeling pain when an abortion is performed. Such a law assumes the supposed medical fact that a fetus can begin to feel pain well before the time when the fetus, if born alive, would be viable. Viability has always been the point beyond which state regulatory power would be the greatest, even under the Roe decision, but viability is generally assumed not to be possible before about 24 weeks of pregnancy. So, the question arises: can states regulate abortion in a significant way before 24 weeks?
There is physical evidence, the supporters of such laws say, that fetuses can begin to feel pain as early as the sixteenth week, but almost certainly by the twentieth. So the 20-week point has been chosen for such laws as the beginning of state power to regulate to avert fetal pain. Separately, such laws are defended as a form of health regulation for the woman, because of the perceived risks to her of later-term abortion.
Early in 2014, the Supreme Court will be taking its first look at such a 20-week law – one enacted in Arizona in 2012. Arizona is one of thirteen states to take this approach, and a test case involving its statute was the first to reach the Supreme Court.
Arizona officials have gone to considerable lengths, in seeking to put the case before the Supreme Court, to try to show that a 20-week law falls on the regulatory side of abortion control laws, not on the flat ban side. A woman could still seek an abortion beyond twenty weeks, the officials noted, because the Arizona law also allows abortion even beyond twenty weeks if there is a grave risk to the woman’s health if the pregnancy were to continue.
If the Justices accept the case for review, and that could be known before the end of January, that could well be interpreted as a sign that the fetal pain argument was being taken seriously by at least some of the members of the court. But, in a larger sense, that could be taken as a sign that the life of the fetus is going to loom larger in the continued development of the constitutional law of abortion.
The majority that decided in favor of an abortion restriction in 2007 is still intact; the two newest members who have joined the court since then – Justices Elena Kagan and Sonia Sotomayor – probably are not in a position to move the court toward a stance more sympathetic to abortion rights.
If the Arizona case is denied review, that would not be the end of the matter. More of the new abortion control laws are under review in lower federal courts, and some of those may well reach the Supreme Court during 2014. Thus, the constitutional controversy over abortion probably will be an ongoing feature of the year.
Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.
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