Legal abortion: the impending obsolescence of the trimester framework

Abstract

Women who wish to terminate a pregnancy, and physicians willing to perform abortions, are subject to increasing harassment from groups which challenge the constitutional abortion right upheld by the Supreme Court in Roe v. Wade. Their vulnerability, in fact, parallels the vulnerability of the abortion right. This Article analyzes the inherent weakness and impending obsolescence of the trimester framework established in Roe. Present medical evidence of maternal health risks and fetal viability demonstrates that the trimester framework is inconsistent with current medical knowledge, and will likely be rendered obsolete by developments in medical technology. The Article suggests that adoption of an alternative constitutional basis for legal abortion is necessary to preserve the abortion right, and explores the utility of two arguments grounded in the equal protection doctrine. Finally, it discusses means of preserving legal abortion within the confines of the trimester framework established in Roe v. Wade.

PIP: The coming obsolescence of the framework of trimester abortion calls for a revision of existing legislation. Medicine, as demonstrated through fetal research and technological advances, has surpassed the limitations of the trimester framework. The viability standpoint, therefore, is becoming increasing antiquated. Changes in the standard have been proposed; however, it appears that the only way of assuring women's rights lies in finding a constitutional basis for legalized abortion that is not connected to fetal viability. While the argument is made that the unborn infant should be protected from any life threatening choices, the argument can also be made for the protection of an individual's rights to be free of physical demand and subordination as guaranteed by the constitution. This argument is not expected to be received favorably by the Supreme Court in the near future. The only hope lies in the recognition of the illogical legal limitations of abortion as medical and scientific advances are made. A perspective that refocuses on other constitutional rights and that is compatible with current knowledge and capabilities will ensure the rights of women; however, until then, the courts and the medical community must work within the binds of Roe vs. Wade. Uniform laws designed to provide rather than prohibit access to abortion will further the rights of women also.