Abstract

PIP: Focusing on the legal aspects of abortion, this chapter considers the development of constitutional law on the right to abortion, rights for adults and minors, conscience clauses, and abortion and malpractice issues. In 1973 the US Supreme Court in the cases of Roe v. Wade held that the right of privacy grounded in the concept of personal liberty guaranteed by the 9th and 14th amendment to the US Constitution included a woman's right to decide whether or not to have an abortion. The cases held unconstitutional any statute that prohibited abortion and statutes that imposed such stringent requirements on abortion as to make abortion unavailable. The Court recognized the state's interest in protecting maternal health and preserving the life of the fetus but said that a woman's right to privacy was a paramount fundamental right and could be interfered with only if the state could show a compelling interest. The Court analyzed the right to abortion based on different stages of pregnancy. During the 1st trimester, a woman has a virtually unfettered right to have an abortion free from interference by state or federal government; the decision is between the woman and her physician. Due to the fact that abortions during the 2nd trimester are more dangerous to the health of the mother, the state can regulate the abortion procedure so long as the regulations are limited to preservation and protection of maternal health. Thus, the state can establish licensing requirements for facilities in which the procedure is to be performed as well as requirements concerning reporting and record keeping. During the 3rd trimester, the viability of the fetus allows the state's compelling interest in the protection of fetal life to be dominant over the mother's right to privacy. During this trimester, the state may, but is not required to, proscribe abortion except where necessary to preserve the life or health of the mother. During the 1973-83 period, numerous attempts were made to chip away at the Court's ruling. Most frequent efforts were to pass state statutes making it unreasonably difficult to obtain an abortion. A basic legal rule for medical practice is that a procedure cannot occur without first obtaining consent from the patient, and to obtain informed consent, the patient must be told of the risks, benefits, and alternatives to any procedure. The Supreme Court has stated that not all consent requirements for minors would be unconstitutional. Although parents cannot have an absolute veto power over their child's abortion decision, state statutes requiring parental notification are valid. The Court has held that spousal consent is unconstitutional since the right of privacy is specific to the pregnant woman. The Court has made it clear that the right to an abortion does not imply the duty of the state or federal government to pay for abortion for indigent women. In the summer of 1983 the Supreme Court decided a trilogy of cases involving the regulation of abortion by state and local governmental units. The Supreme Court imposed some limitations on abortion but upheld the Roe case.