Transcript A Bit of Legal History Connecticut becomes the first state to outlaw abortions begins. A Massachusetts judge rules that abortion with the woman's.

A Bit of Legal History
1821
Connecticut becomes the first state to outlaw abortions
1845
begins.
A Massachusetts judge rules that abortion with the woman's consent is not punishable before "quickening"
1900s
Abortions, although illegal nationwide, are believed to end, by some estimates, one in three or four
pregnancies.
1921
Margaret Sanger founds the American Birth Control League, which evolves into the Planned Parenthood
Federation of America in 1942.
1936
birth
The federal law prohibiting the dissemination of contraceptive information through the mail is modified and
control information is no longer classified as obscene.
1960
The Food and Drug Administration approves birth control pills.
1965
Griswold v. Connecticut, Supreme Court strikes down the one remaining state law prohibiting the use of
contraceptives by married couples.
1972
use
Eisenstadt v. Baird, Supreme Court rules that the right to privacy includes an unmarried person's right to
contraceptives.
1973
abortion
Roe v. Wade Supreme Court establishes a woman's right to safe and legal abortion, overriding the antilaws of many states.
1979 -1992 A number of legal cases brought before the court to try to restrict abortion and/or overturn Roe.
1992
Planned Parenthood vs. Casey, Supreme Court upholds the requirements of a 24-hour waiting period,
mandatory anti-abortion counseling,
parental consent for minors and record-keeping by doctors.
Wade and
The Supreme Court abandons the "trimester" approach to abortion that was institutionalized in Roe vs.
which outlined a woman's and states' rights during each trimester of a pregnancy.
Justices also rule that a state may assert its interest in the fetus throughout a pregnancy, but determine that
Roe v. Wade
JUSTICE BLACKMUN writing for the majority
“We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the
vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject
inspires. One's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious
training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to
observe, are all likely to influence and to color one's thinking and conclusions about abortion.
In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem.
Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection. We seek
earnestly to do this, and, because we do, we have inquired into, and in this opinion place some emphasis upon, medical
and medical-legal history and what that history reveals about man's attitudes toward the abortion procedure over the
centuries.”
Three reasons given to explain the enactment of criminal abortion laws in the 19th century and to
justify their continued existence.
1. To discourage illicit sexual conduct.
2. Concern with abortion as a medical procedure.
(When most criminal abortion laws were first enacted, the procedure was a hazardous one for the woman, particularly prior to the development of antisepsis)
3. The State's interest in protecting prenatal life.
“ Some of the argument for this justification rests on the theory that a new human life is present from the moment of
conception. The State's interest and general obligation to protect life then extends, it is argued, to prenatal life. Only when
the life of the pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the
embryo or fetus not prevail. Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance
of the belief that life begins at conception or at some other point prior to live birth. In assessing the State's interest,
recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert
interests beyond the protection of the pregnant woman alone.”
Roe v. Wade
The Ruling
Balancing Choice and State Interests in Protecting Potential Life
“The detriment that the State would impose upon the pregnant woman by denying this choice altogether is
apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity,
or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be
imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned,
associated with the unwanted child, and there is the problem of bringing a child into a family already unable,
psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and
continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible
physician necessarily will consider in consultation. On the basis of elements such as these, some argue that
the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever
way, and for whatever reason she alone chooses. With this we do not agree….”
The Court's decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by
that right is appropriate... a State may properly assert important interests in safeguarding health, in maintaining medical
standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently
compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore,
cannot be said to be absolute….
A state criminal abortion statute of the current Texas type, that excepts from criminality only a lifesaving procedure on
behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is
violative of the Due Process Clause of the Fourteenth Amendment.
(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be
left to the medical judgment of the pregnant woman's attending physician.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the
health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal
health.
(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it
chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the
After Roe, 34 states passed new abortion laws, many of which
were designed to limit abortions.
1973
Doe v. Bolton 410 U.S.179
7-2 Vote
Nature of Case: Challenge to a Georgia law prohibiting abortions except in cases of medical necessity, rape,
incest, and fetal abnormality. The Georgia law also required that all abortions be performed in accredited
hospitals and that two doctors and a committee concur in the woman's abortion decision; and that only
Georgia residents may obtain abortions in that State.
Holding: The law is unconstitutional. It violates a woman's right to choose abortion and the residency
requirement violates the Privileges and Immunities Clause of the Constitution.
1976 Planned Parenthood of Central Missouri v. Danforth 428 U.S.52
5-4 Vote
Nature of Case: Challenge to a Missouri law requiring (a) parental consent to a minor's abortion; (b)
husband's consent to a married woman's abortion; (c) the woman's written informed consent; (d) that no
second-trimester abortion be done by saline amniocentesis; and (e) that abortion providers do certain record
keeping and reporting.
Holding: Parental and spousal consent requirements held unconstitutional because they delegate to third
parties an absolute veto power over a woman's abortion decision which the state does not itself possess. The
requirement that the woman certify that her consent is informed and freely given is constitutional, as are the
record-keeping and reporting requirements. The ban on saline amniocentesis is struck down because saline
amniocentesis is the most commonly used abortion method after the first 12 weeks of pregnancy and was
shown to be less dangerous to the woman's health than other available methods; the choice of method must
be left to the physician.
1976 Bellotti v. Baird (Bellotti I) 428 U.S. 132
9-0 Vote
Nature of Case: Challenge to a Massachusetts law that required consent of both parents to a minor's abortion
but allowed the requirement to be waived by a judge for "good cause shown."
Holding: The statute may be constitutional, depending on the meaning of "good cause" and exact procedure
that will be utilized. Case remanded for definitive interpretation by Massachusetts state courts of meaning of
the statute.
1977 Maher v. Roe 432 U.S. 464
6-3 Vote
Nature of Case: Challenge to Connecticut's limitation of state Medicaid funding to medically necessary
abortions and refusal to fund "elective" abortions.
Holding: The law is constitutional. The state need not fund a woman's exercise of her right to choose
abortion even though it pays the costs of childbirth.
1977 Poelker v. Doe 432 U.S. 519
6-3 Vote
Nature of Case: Challenge to a St. Louis, Missouri, municipal policy of refusal of all publicly financed hospital
services for "elective" abortions.
Holding: The law is constitutional for the reasons stated in Maher v. Roe (see above).
1979 Bellotti v. Baird (Bellotti II) 443 U.S. 622
9-0 Vote
Nature of Case: The Massachusetts law challenged in Bellotti I (1976) arrived at the court definitively
interpreted by the Massachusetts Supreme Judicial Court. The law would require, the Massachusetts court
said, (a) that a minor first attempt to obtain her parents' consent and be refused before approaching a court
for permission for her abortion and that parents be notified when a minor files a petition for judicial waiver;
and (b) that the judge hearing the minor's petition may deny the petition if the judge finds that an abortion
would be against the minor's best interests.
Holding: The law is unconstitutional. All minors must have an opportunity to approach a judge without first
consulting their parents, and the proceedings must be confidential and expeditious. A mature minor must be
given permission for an abortion, regardless of the judge's view as to her best interests. Even an immature
minor must be permitted to have a confidential abortion, if the abortion is in her best interests.
1981 H.L. v. Matheson 450 U.S. 398
6-3 Vote
Nature of Case: Challenge to a Utah law requiring the physician to notify a parent of an unemancipated
minor prior to abortion.
Holding: The law is constitutional. The plaintiff is a dependent minor, living at home, who has made no claim
that she is mature enough to give informed consent to abortion or that she has any problems with her parents
that make notice inappropriate. As to this minor, the law is valid. Justices Stewart and Powell wrote a
concurring opinion to emphasize that mature minors and those whose best interests mandate that parents
not be involved have a right to a confidential abortion.
1983 City of Akron v. Akron Center for Reproductive Health 462 U.S. 416
6-3 Vote
Nature of Case: Challenge to an Akron, Ohio, ordinance requiring that:
(a) a woman wait 24 hours between consenting to and receiving an abortion;
(b) all abortions after the first trimester of pregnancy be performed in full-service hospitals;
(c) minors under fifteen have parental or judicial consent for an abortion;
(d) the attending physician personally give the woman information relevant to informed consent;
(e) specific information be given to a woman prior to an abortion, including details of fetal
anatomy, a list of risks and consequences of the procedure, some of which were false or hypothetical, and a
statement that "the unborn child is a human life from the moment of conception"; and
(f) fetal remains be "humanely" disposed of.
Holding: All challenged portions of the ordinance are unconstitutional:
(a) the 24-hour waiting period serves neither the state's interest in protecting the woman's health
nor in ensuring her informed consent;
(b) the post-first-trimester hospitalization requirement interferes with a woman's access to
abortion services without protecting her health because the dilatation and evacuation (D&E) method of midtrimester abortion may be performed as safely in out-patient facilities as in full-service hospitals;
(c) the minors' consent requirement fails to guarantee an adequate judicial alternative to parental
involvement (see Bellotti II, 1979);
(d) the physician counseling requirement makes abortions more expensive and is not necessary
to ensure informed consent since the physician can delegate the counseling task to another qualified
individual;
(e) the informed consent "script" intrudes on the physician's judgment as to what is best for the
individual woman and contains information designed to dissuade the woman from having an abortion; and
(f) the requirement for "humane" disposal of fetal remains is too vague to give fair warning of
what the law requires.
1983 Planned Parenthood of Kansas City v. Ashcroft 462 U.S. 476
(6-3 & 5-4 Vote)
Nature of Case: Challenge to a Missouri law requiring that (a) all post-first-trimester abortions be performed in
hospitals; (b) minors under 18 have parental consent or judicial authorization for their abortions; (c) two doctors
be present at the abortion of a viable fetus; and (d) a pathologist's report be obtained for every abortion.
Holdings: (a) The hospitalization requirement is unconstitutional for the reasons stated in City of Akron v.
Akron Center for Reproductive Health (1983); (b) the parental consent requirement is constitutional because
the judicial bypass alternative contained in the statute conforms to the standards set out in Bellotti II (1979); (c)
the presence of two doctors at late abortions serves the state's compelling interest in protecting potential life
after viability and is, therefore, constitutional; and (d) the requirement of a pathology report is constitutional
because it poses only a small financial burden to the woman and protects her health.
1986 Thornburgh v. American College of Ob/Gyns 476 U.S. 747
5-4 Vote
Nature of Case: Challenge to Pennsylvania's 1982 Abortion Control Act requiring (a) that a woman be given
specific information before she has an abortion, including state-produced printed materials describing the fetus;
(b) that physicians performing post-viability abortions use the method most likely to result in fetal survival
unless it would cause "significantly" greater risk to a woman's life or health; (c) the presence of a second
physician at post-viability abortions; (d) detailed reporting to the state by providers on each abortion, with
reports open for public inspection; and (e) one parent's consent or a court order for a minor's abortion.
Holding: (a) the informed consent provision is invalid because it interferes with the physician's discretion and
requires a woman to be given information designed to dissuade her from having an abortion; (b) the provision
restricting post-viability abortion methods is invalid because it requires the woman to bear an increased risk to
her health in order to maximize the chances of fetal survival; (c) the second-physician requirement is invalid
because it does not make an exception for emergencies; (d) the reporting requirement is unconstitutional
because it could lead to disclosure of the woman's identity; and (e) the parental consent issue is remanded to
the lower court for consideration in light of newly enacted state court rules. In 1992, the Supreme Court
overruled portions of this case in Planned Parenthood v. Casey.
1989 Webster v. Reproductive Health Services 492 U.S. 490
5-4 vote
Pivotal case, poised to overturn Roe
Court now occupied by:
John Paul Stevens (appt. by Pres. Ford replacing William O. Douglas in 1975)
Sandra Day O’Connoer (appt. by Reagan replacing Potter Stewart in 1981)
Antonin Scalia (appt. by Reagan replacing Warren Burger in 1986)
Anthony Kennedy (appt. by Reagan replacing Lewis Powell in 1988)
Nature of Case: Challenge to Missouri's 1986 Act: (a) declaring that life begins at conception; (b)
forbidding the use of public funds for the purpose of counseling a woman to have an abortion not necessary
to save her life; (c) forbidding the use of public facilities for abortions not necessary to save a woman's life;
and (d) requiring physicians to perform tests to determine viability of fetuses after 20 weeks gestational
age.
Holding: (a) the court allowed the declaration of when life begins to go into effect because five justices
agreed that there was insufficient evidence that it would be used to restrict protected activities such as
choices of contraception or abortion. Should the declaration be used to justify such restrictions in the future,
the affected parties could challenge the restrictions at that time; (b) the court unanimously declined to
address the constitutionality of the public funds provision. The court accepted Missouri's representation that
this provision was not directed at the conduct of any physician or health care provider, private or public, but
solely at those persons responsible for expending public funds, and that the provision would not restrict
publicly employed health care professionals from providing full information about abortion to their clients;
(c) the court upheld the provision that barred the use of public facilities. It ruled that the state may
implement a policy favoring childbirth over abortion by allocations of public resources such as hospitals and
medical staff; and (d) the court upheld the provision requiring viability tests by interpreting it not to require
tests that would be "imprudent" or "careless" to perform.
1992 Planned Parenthood of Southeastern Pennsylvania v. Casey
5-4 Vote
Nature of Case: Challenge to Pennsylvania's 1989 Abortion Control Act. The 1989 statute
required that, except in medical emergencies:
(a) a woman wait 24 hours between consenting to and receiving an abortion;
(b) the woman be given state-mandated information about abortion and offered
state-authored materials on fetal development;
(c) a married woman inform her husband of her intent to have an abortion; and
(d) minors' abortions be conditioned upon the consent, provided in person at the
clinic, of one parent or guardian, or upon a judicial waiver.
In addition, physicians and clinics that perform abortions were required to provide to the
state annual statistical reports on abortions performed during the year, including the names
of referring physicians.
Holding: The court reaffirmed the validity of a woman's right to choose abortion under Roe
v. Wade, but announced a new standard of review that allows restrictions on abortion prior
to fetal viability so long as they do not constitute an "undue burden" to the woman. A
restriction is an "undue burden" when it has the purpose or effect of placing a substantial
obstacle in the path of a woman seeking an abortion. Under this standard, only the husband
notification provision was considered an undue burden and therefore unconstitutional. All
the other provisions were upheld as not unduly burdensome.
In upholding the Pennsylvania abortion restrictions, the court overturned portions of two of
its previous rulings, City of Akron v. Akron Center for Reproductive Health (1983) and
Thornburgh v. American College of Obstetricians and Gynecologists (1986).
2000 Stenberg v. Carhart 530 U.S. 914
5-4 Vote
Nature of Case: Challenge to Nebraska's partial birth abortion ban.
Holding: The statute is unconstitutional because it lacks an exception for situations when
the procedure is necessary to protect the woman's health. The exception must allow the
banned procedure both because the woman's medical condition requires it and because
the banned procedure is less risky than others. In addition, the statute creates an undue
burden on a woman's right to abortion because it has the effect of outlawing the dilation
and evacuation (D&E) procedure, the most commonly used method for performing secondtrimester abortions.
2003 Congress passes the Partial-Birth Abortion Ban Act and President Bush signs
it into law.
The Act defines “partial-birth abortion” as: an abortion in which a physician deliberately and intentionally
vaginally delivers a living, unborn child until either the entire baby’s head is outside the body of the
mother, or any part of the baby’s trunk past the navel is outside the body of the mother and only the
head remains inside the womb, for the purpose of performing an overt act (usually the puncturing of the
back of the child’s skull and removing the baby’s brains) that the person knows will kill the partially
delivered infant, performs this act, and then completes delivery of the dead infant.
June 2004, a California judge finds the act unconstitutional and calls for an injunction, Cases in New
York and Nebraska are pending.
The Moral status of the fetus
Egg Zygote-implantation
Embryo
Fetus
Viability
Birth
Subject-of-a-life
Person
Those who think that abortion is impermissible think personhood is the same as life and thus begins at
conception.
Those who think that abortion is permissible think that not all life has moral status and that this status
begins at some point after conception.
The Debate between permissibles and impermissibles
often appears to rest on the moral status of the fetus,
whether or not the fetus is a person.
Standard Right to Life Argument
1. Every fetus is a person.
2. Every person has a right to life.
3. Therefore, every fetus has a right to life.
4. If a being (B) has a right to life, then an agent (A)’s intentionally ending B’s life by killing B is morally
wrong unless the killing of B serves some right of A that is of at least as much moral importance than
B’s right to life.
5. Therefore, intentionally ending a fetus’s life by killing it is morally wrong unless it serves some right
of the mother that is of at least as much moral importance as the fetus’s right to life.
6. Abortion involves the intentional killing of a fetus.
7. Therefore, abortion is morally wrong unless it serves some right of the mother that is of at least as
much moral importance as the fetus’s right to life.
8.
The right to control one’s own body is not of as much moral importance as a right to life.
9.
Thus, a person's right to life necessarily outweighs another person's right to control her own body.
10. Therefore, abortion is morally wrong unless it serves some greater right of the mother than the
right to control her own body.
Standard Right to Choice Response -- Deny 1, that the fetus is a person. If the fetus is
not a person it doesn’t have a right to life, and thus abortion isn’t morally wrong.
Judith Jarvis Thomson’s Violinist
analogy
1.
2.
3.
4.
5.
6.
7.
8.
The violinist is a person.
All persons have a right to life.
Hence, The violinist has a right to life.
The right to life includes the right not to be killed.
It is always impermissible to kill someone that has a right not to be killed.
Hence, it is morally impermissible to kill the violinist.
To unplug yourself from the violinist is to kill the violinist.
Hence, it is morally impermissible to unplug yourself from the violinist.
Response: It isn’t morally impermissible to unplug yourself from the violinist because the right to
life does not includes the right not to be killed only the right not to be killed unjustly.
What makes a killing unjust?
1. B has the right to demand X from A only if A has granted B the right to X.
2. B has the right to the use of A’s body only if A has granted B that right.
2. If B does not have a right to the use of A’s body because A has not granted B that right, then it is
not unjust for A to deprive B of the use of A’s body.
3. If the use of A’s body is the only way for B to stay alive but A has not granted B that right then it is
not unjust for A to kill B (or allow B to die)
In cases of rape and contraception failure, the pregnant woman has not granted the fetus
the right to the use of her body. In those cases, the fetus does not have the right to the use of the
pregnant woman’s body.
Hence, in those cases, it is not unjust for the pregnant woman to deprive the fetus of the
use of her body and to abort the fetus. So having an abortion in these cases is not unjust killing.
The Responsibility Argument
1. A woman who has consensual intercourse knowingly runs the risk of
bringing a moral person into existence.
2. One should bear the consequences of all the risks one knowingly takes.
3. Therefore, a woman who has consensual intercourse should bear the
consequences of running the risk of bringing a moral person into existence
(i.e., carry the pregnancy to term).
Thomson’s responses: People seeds and Burglars
1. Pregnancy from consensual intercourse with contraception is morally like
the peopleseed example.
2. Morally like cases are treated alike under the same set of moral principles.
3. It is permissible to abort the peopleseed.
4. Therefore, it is permissible to abort the fetus.
or
1. Pregnancy from consensual intercourse without contraception is morally
like the burglar example.
2. Morally like cases are treated alike under the same set of moral principles.
3. It is permissible to evict the burglar.
4. Therefore, it is permissible to abort the fetus
1.
Mary Anne Warren’s
If the fetus is a person, then pregnancyArguments
due to voluntary intercourse without contraception is
analogous to the following situation:
Suppose that violinists are peculiarly prone to the sort of illness the only cure which is the
use of someone else’s bloodstream for nine months, and that because of this there has been
formed a society of music lovers who agree that whenever a violinist is stricken they will
draw lots and the loser will, by some means, be made the one and only person capable of s
aving him or her. You voluntarily join the society, knowing the possible consequences, and
your name is then drawn and you are kidnapped.
2. In that situation, you are morally required to allow the violinist the use of your body.
3. Treating like cases alike, if the fetus is a person, then a woman who’s pregnancy is due to
voluntary intercourse without contraception is morally required to allow the fetus the use of
her body.
Response:
1 is false, the two situations are not analogous.
The state does not have the right to attach as a condition of voluntarily engaging in intercourse that a
woman will refrain from having an abortion if she should become pregnant.
Because the fetus isn’t a person.
If X doesn’t have any of the following characteristics, then X isn’t a person:
(1) Consciousness, sentience
(2) Reasoning
(3) Self-motivated activity
(4) The capacity to communicate
(5) The presence of self-concepts and self-awareness
Since the fetus doesn’t have any of those characteristics the fetus isn’t a person.
Don Marquis’ Argument against Abortion
Stipulate the following:
x is a human being iff x is a member of the human species
x is a person iff x has most of Warren’s 5 characteristics.
x is a moral agent iff x has the same moral status as a normal, adult human being.
The experiences, activities, projects, and enjoyments that x would enjoy were x not killed, constitute
x’s future.
1. When x’s future is very valuable, killing x will deprive x of something very valuable.
2. Depriving x of something valuable is morally impermissible (except in certain circumstances C).
3. Hence, when x’s future is very valuable, killing x is morally impermissible (except in C).
4. Hence, when the fetus’s future is very valuable, having an abortion is morally impermissible
(except in C).
5, In most cases, the fetus’s future is very valuable and C is not satisfied.
6. Hence, in most cases, having an abortion is morally impermissible.