Abortion: Questions and Answers by Jack Wilke, MD Chapters 6 and 10
The Supreme Court Decision and Attempts to Reverse It
During the mid 1800s, all states tightened their laws, making
abortion -- from the time of fertilization on -- a serious crime.
When did the laws change again?
* For over 100 years, and until 1967, all states fully protected all human life from conception except when the mother's life was threatened. Then the first permissive law was passed in Colorado.
* In June 1970, when New York passed the first abortion-on-demand law (24 week limit), it became the 16th state to allow abortion. Most of the others had allowed abortion only for very restrictive reasons.
* After that, in the next 2 years, only one more state legalized abortion (Florida because of a court order), while 33 states debated the issue in their legislatures. All 33 states voted against permitting abortion for any reason except to save the mother's life.
* In April 1972, New York repealed its law, but Governor Nelson Rockefeller vetoed the repeal, and the law remained in force.
What of the state courts?
In the late 1960s and early 1970s, pro-abortionists challenged the constitutionality of laws forbidding abortion in most states. In about one-third of the decisions, such laws were declared unconstitutional and varying degrees of abortions were permitted. (Most of these were states that had already legalized abortion in their legislatures.) Two-thirds of the state courts, however, declared existing laws to be constitutional.
Then there were referenda?
Yes. After the pro-abortionists were stopped in the legislatures and in the courts, they tried referenda in two states (abortion-on-demand until 20 weeks) in the November 1972 election.
* North Dakota, only 12% Catholic, voted 78% against abortion.
* Michigan, an industrial state (pre-polled at 60% pro-abortion), voted 63% against abortion.
The tide had turned?
Yes. It seemed obvious that most people did not want abortion. But, on January 22, 1973, the U.S. Supreme Court ruled.
Roe vs. Wade, U.S. Supreme Court, 410 U.S. 113, 1973
Doe vs. Bolton, U.S. Supreme Court, 410 U.S. 179, 1973
What was the ruling?
It struck down all laws against abortion which had in any way protected unborn babies. The ruling legalized abortion in all 50 states for the full nine months of pregnancy for social and economic reasons.
* It created a new basic constitutional right for women in the right to privacy, which the Supreme Court had created only a few years earlier. This right to privacy was "broad enough to encompass a woman's right to terminate her pregnancy."
* It stated that the law protects only legal "persons" and that "legal personhood does not exist prenatally."
The ruling authorized:
* No legal restrictions at all on abortion in the first three months.
* No restrictions from then until viability, except those needed to make the procedure safer for the mother.
* Abortion was allowed until birth if one licensed physician judged it necessary for the mother's "health."
How did the U.S. Supreme Court define "health?"
The Court said that abortion could be performed: ". . . in the light of all factors -- physical, emotional, psychological, familial, and the woman's age -- relevant to the well being of the patient. All these factors may relate to health."
Doe vs. Bolton, U.S. Supreme Court,
No. 70-40, IV, p. 11, Jan. 1973
"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 or otherwise, to care for it. In other cases the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors that the woman and the responsible physician will consider in consultation."
Roe vs. Wade, U.S. Supreme Court,
No. 70-18, p. 38, Jan. 1973
But these reasons are social reasons, not health reasons.
That is the situation! The U.S. Supreme Court has specifically defined the word "health" to include a broad group of social and economic problems, as judged by the mother herself. It has further specifically forbidden any state to forbid abortion at any time prior to birth for these reasons, if the mother can find a doctor to do the abortion.
This is also true in every nation in the world. If abortion is allowed for "health," that state or nation has abortion on demand; e.g., in England in 1986, 132,000 of 135,000 legal abortions were due to mental health.
The Times, 26 March '88
Then the United States has abortion-on-demand until birth?
Correct. This is the legal situation.
Give me some authoritative reference on that!
"Our nationwide policy of abortion-on-demand through all nine months of pregnancy was neither voted on by our people nor enacted by our legislators."
R. Reagan, "Abortion & the Conscience of the Nation,
Thomas Nelson Publishers, 1984, p. 15
Also, the official report of the U.S. Senate Judiciary Committee, issued after extensive hearings on the Human Life Federalism Amendment (proposed by Senators Hatch and Eagleton), concluded:
"Thus, the [Judiciary] 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
How did the court justify its action?
It seems obvious that the court approached the issue with a clear conviction that "a woman must have this right" and tried to justify this right. They admitted their decision was not in the Constitution, but claimed that it was implied.
Justice Douglas, in Griswold v. Conn. had found (created) a new right of privacy. He found it in the emanations (vapors) from the penumbra (a shadow) of the 14th Amendment. Justice Blackman planted the abortion right firmly upon this foundation.
The most devastating was their judgment that, even though they didn't know when "life"9 begins, they would rule out all protection for this growing living human being on the basis of age and place-of-residence (the womb).
They justified this civil rights violation because the fetus had not yet reached "the capability of meaningful life"; that he or she was not a "person in the whole sense" [authors' italics].
Roe vs. Wade, U.S. Supreme Court
IX, p. 47, X, p. 48
Most of the "foot-in-the-door" early euthanasia bills (living will, death with dignity) introduced so far, justify post-born extermination when the patient is no longer capable of "meaningful" life.
The Court found the right to abort in the right to privacy. What about the right of a woman to the privacy of her own body?
If you, as a citizen, stand outside a door and listen to a mother battering her child, even to the point of killing him, what would you do? Would you respect the privacy of her home? You would not! You would open or break down the door and rescue the child. By virtue of her assault upon and abuse of another human person, she has surrendered her constitutional right to privacy in this case. The same analogy applies to abortion: The right of the child to live is greater than and supersedes any right that a woman may have to the privacy of her own body.
But a woman does have a right to her own body. Isn't the child, at least in the early stages of pregnancy, part of her body?
A woman's appendix, obviously a part of her body, can be removed for sufficient reason. The cells of the appendix, however, carry the identical genetic code that is present in every other cell in the mother's body. They are, for this reason, undeniably part of her body.
The single-celled fertilized ovum, or later developing embryonic human being within her uterus, cannot, by any stretch of the imagination, be considered part of her body. This new living being has a genetic code that is totally different from the cells of the mother's body. He or she is, in truth, a completely separate growing human being and can never be considered part of the mother's body.
Does she have a right to her own body? Yes. But this is not part of her own body. It is another person's body.
Has the Supreme Court decided other related cases after this?
Yes. The main ones were:
* Spousal and parental consent was ruled unconstitutional. Prohibition of salt poisoning abortion on medical grounds was ruled unconstitutional.
Planned Parenthood vs. Danforth,
428 U.S. 52, 1976
* Viability is what the doctor says it is.
Colautti vs. Franklin,
429 U.S. 379, 1979
* The State is not required to fund "medically necessary"
abortions for the poor.
Harris vs. McRae, 448 U.S. 297, 1980
* Informed consent is not required. A waiting period is unconstitutional. Mandatory hospitalization for second trimester abortions is unconstitutional. "Humane"" disposal of fetal remains is unconstitutional.
City of Akron vs. Akron
Center for Reproductive Health,
103 S. Ct. 2481, 1983
* Informed consent is unconstitutional.
Thornberg v. Am. Col., OB & GYN,
106 S.Ct. 2169, 1986
This was the situation until the Webster Decision July 1989.
Weren't there any absolute legal requirements?
There were three. The woman must request it, a licensed doctor must agree to do it, and the pre-born baby must still live in the womb.
Can the U.S. Congress do anything at all?
Yes! Increasingly, the U.S. Congress has been passing pro-life
* to cut off federal funding for Medicaid abortions (Hyde
* to stop federal funding of abortions in Federal Employees'
* to stop pro-abortion legal action by government lawyers;
* to limit fetal experimentation;
* to stop overseas aid for abortion;
* to stop funding of abortions in military hospitals;
* to aid pregnant women;
* to take abortion out of family planning aid.
Can the Decision be reversed by an amendment to the U.S. Constitution?
Yes, but the Supreme Court could also reverse the Decision.
How can such an amendment be passed?
There are two methods. For the last 16 amendments added to the Constitution, the proposed amendment first had to pass both Houses of the U.S. Congress by a two-thirds vote. In the other method, used for the first ten amendments (the Bill of Rights), a Constitutional Convention first approved the proposed amendments. In both cases, the proposed amendment(s) had to be ratified by three-fourths of the state legislatures.
Have pro-lifers tried either method?
Yes. They are working on both. The most recent vote in the Congress was in June 1983, when the Hatch-Eagleton Amendment was debated and voted on by the U.S. Senate.
Also, 20 states have voted to call a Constitutional Convention.
The required number is 34.
What amendments have been proposed?
The original wording formulated in 1974 by the National Right to
Life (NRLC) committee was:
THE NRLC HUMAN LIFE AMENDMENT
Section 1: With respect to the right to life, the word "person" as used in this article and in the Fifth and Fourteenth Articles of Amendment to the Constitution of the United States applies to all human beings irrespective of age, health, function, or condition of dependency, including their unborn offspring at every stage of their biologic development.
Section 2: No unborn person shall be deprived of life by any person; provided, however, that nothing in this article shall prohibit a law permitting only those medical procedures required to prevent the death of the mother.
Section 3: The Congress and the several States shall have power to enforce this article by appropriate legislation.
Later, another version was introduced which came to be called:
THE PARAMOUNT AMENDMENT
The Paramount right to life is vested in each human being from the moment of fertilization without regard to age, health, or condition of dependency.
Then, in 1981, these two versions were merged into a new NRLC Amendment often called:
THE NRLC UNITY HUMAN LIFE AMENDMENT
Section 1: The right to life is a paramount and most
fundamental right of a person.
Section 2: With respect to the right to life guaranteed to persons by the Fifth and Fourteenth Articles of Amendment to the Constitution, the word "person" applies to all human beings, irrespective of age, health, function, or condition of dependency, including their unborn offspring at every state of their biological development including fertilization.
Section 3: No unborn person shall be deprived of life by any person; provided, however, that nothing in this article shall prohibit a law allowing justification to be shown for only those medical procedures required to prevent the death of either the pregnant woman or her unborn offspring as long as such law requires every reasonable effort be made to preserve the life of each.
Section 4: Congress and the several States shall have power to enforce this article by appropriate legislation.
Which of these three versions has the most support?
A measure of legislative support in the 98th Congress showed 26 senators cosponsoring the original NRLC, three senators cosponsoring the original Paramount, and seven senators cosponsoring the Unity Amendment.
Would all three reverse the Supreme Court Decision?
Yes, but they would go further. Prior to the 1973 Supreme Court Decision, the U.S. had a de facto states' rights situation under which each state could decide if it wanted to forbid or to permit abortion and to what degree.
These amendments would reverse the 1973 Supreme Court Decision, but would also go further and mandate federal protection for the unborn in all 50 states.
Many legal experts had thought that such protection was already present in the 14th Amendment to the Constitution; but, as we know, in the late 1960s, 17 states passed laws to allow abortion for various reasons. Pro-life leaders do not want this to happen again. Accordingly, these amendments would revoke the pre-existing states' rights situation and mandate universal civil rights for all living humans -- born or unborn.
But this is almost two decades later and none of these amendments have been passed!
True. But support for such an amendment has steadily increased. In 1974 there were only 28 pro-life Senate votes. By the early 1980s there were about 40.
But an amendment needs 67 votes!
That's the problem. Almost every third baby conceived in America (and every sixth baby in Canada) is killed by abortion. Even if the growth of pro-life strength continues, it could be another decade before such an amendment would be passed out of Congress. That was why two major steps-on-the-way, the Helms Human Life Bill (HLB) and the Hatch-Eagleton Constitutional Amendment were proposed.
What was the Helms Human Life Bill?
The HLB was introduced in January 1981. It was a statute, not a Constitutional Amendment, and needed only a majority vote to pass (unless filibustered).
It would have declared that unborn humans were legal persons. If the high court judged this to be Constitutional, the Supreme Court would in effect, have reversed its judgment of 1973. The HLB certainly would have applied to state abortions, but there was a question as to whether it would have stopped private abortions. The Court would have decided that question.
The National Right to Life Board endorsed it by a narrow margin eight months after it was introduced and by a two-thirds margin eight months after that. By the time it reached the Senate floor, there was full pro-life support for it. Stating that he had "only 35 or 40 votes" for its personhood feature, Senator Helms removed that section on the eve of the vote. It was still filibustered. Sixty votes for cloture were needed to stop a filibuster. The deciding vote on invoking cloture, in September 1982, only received 50 votes. It was then tabled on a 48-47 vote.
What was the Hatch-Eagleton Amendment?
This was to be the first of two Constitutional amendments. Facing the reality of the inability at this time to pass a full federal amendment, this was proposed as a major first step. It stated: "A right to abortion is not secured by this Constitution."
It would have reversed the Supreme Court Decision and returned the nation to the condition prior to the 1973 Supreme Court Decision, when each state had the power to forbid abortion.
It was introduced in September 1981. As a Constitutional amendment, it could not have been struck down by the Court, but needed 67 votes. It would have required ratification by three-fourths of the states.
The chief objection was that a second amendment would never be passed. Proponents answered this by noting that they feared that a one-step amendment could not be passed in this century. They felt that this would probably stop over half of the killing in short order. Further, they argued, a reversal of the court decision would re-establish a climate of protection and respect for life and make a second step possible.
But wasn't the "Hatch" a compromise?
It was clear enough that all pro-life leaders wanted all babies protected. There was no compromise on the basic ethic or ultimate goal. This was rather a change in legislative strategy. Supporters of the Amendment pointed to the following reasoning: If, today, we have 100% abortion, and we have the power to stop 60% of them (but not the full 100%) and do so, are we "permitting" the 40% that remain? Hardly! We've taken one step, saved many lives, and begun the reversal process. We'll stop more abortions as soon as we have the strength to do so.
But it was defeated also?
The National Right to Life Board endorsed it by a narrow margin three months after its introduction and by a two-thirds vote four months later. After full debate, the Senate vote, in June 1983, was 49 votes for and 50 votes against, with one pro-life senator abstaining. It failed the two-thirds majority needed.
Were these two defeats crushing blows?
Not at all!
No pro-life leader realistically expected either the bill or the Constitutional Amendment to pass. Nevertheless, there were major social, legislative, and political reasons to bring both before the Senate for record votes. This was the first time that a major effort had brought a measure, the Hatch-Eagleton Amendment -- one which would have reversed the Supreme Court Decision -- through a Senate subcommittee, then through the full Judiciary Committee, and on to a floor debate and vote by the full Senate. Just ten years after that fateful Supreme Court Decision, the Senate split right down the middle, by far the strongest showing yet on such a major measure. Then, several months later, proving that the Right to Life movement had not lost its strength, the U.S. Congress reaffirmed the abortion funding restrictions of the Hyde Amendment to the Labor, Health and Human Services Annual Appropriation Bill, and then, for the first time, cut off the use of tax money to help pay for abortions done under the Federal Employees' Health Insurance program.
Has the Supreme Court ever reversed one of its major decisions?
Yes! In the over 200-year history of the U.S.A., the Court has completely reversed its own major decisions over one hundred times.
There is an increasing possibility that the Supreme Court may reverse the Decision itself, as new justices have been seated on the Court.
What if the Roe and Doe Decisions were reversed by the court?
The legal situation would revert to the status-quo-ante 1973. It would again be possible to grant rights to the unborn child. A mother's new constitutional right to abort would be gone.
The federalization of the right to regulate abortion would be gone and each state would regain the right to legislate on abortion through their elected state senators and representatives.
What of the Webster Decision in 1989?
This promised to reverse the trend that had moved more and more toward total permissiveness. It foreshadowed returning to the people of each state a freedom that they had had during the first 200 years of U.S. history.
That was the freedom of the people of each state to decide, through their elected state legislators, to what extent they wanted abortion permitted or forbidden in each of their states.
And what of the Ohio and Minnesota decisions on parental
notification in June 1990?
The 1989 and 1990 decisions have discarded the trimester scheme and reaffirmed that the unborn child has rights that exist throughout pregnancy.
The earlier Court considered abortion to be a woman's fundamental right and had applied a "compelling interest" standard of review. The present Court rather appears now to be willing to uphold almost any state regulation of abortion under a "rational basis" test. This new measuring rod is completely incompatible with the fundamental right of Roe vs. Wade and if continued means that the 1973 decision is all but overruled (as of 1990) sub silentio' or in practice.
"When the lives of the unborn are snuffed out, they often feel pain, pain that is long and agonizing."
President Ronald Reagan to National Religious Broadcasters, New York Times, Jan. 31, 1984
That statement by President Reagan was denied by some!
Yes, but, then it was confirmed as accurate by a well-documented statement from an auspicious group of professors, including pain specialists and two past presidents of the American College of Obstetrics and Gynecology. The text of their letter follows: