Chapter 7.B.2 (or 5.B.2) -- Abortion


Notes: Roe v. Wade


Note 6. Abortion Politics.

Two states have moved the forefront of the abortion debate. South Dakota enacted legislation banning abortions, intentionally provoking a legal challenge to Roe v. Wade; while Louisiana enacted legislation banning abortion if Roe v. Wade is overturned. SB 33, 2006 Leg, Reg, Sess. (La. 2006); HD 1215, 81st  Leg. Reg. Sess. (S.D. 2006). See also, Christine Vestal,  States Probe Limits of Abortion Policy, Stateline.Org, June 22, 2006, available &contentId=121780 (last visited July 20, 2006).

The importance of the issue in the Supreme Court nomination process was illustrated recently in President Bush’s nomination of Judge Roberts to the U.S. Supreme Court. See, e.g., the extensive coverage of the nominees potential views on Roe v. Wade in The New York Times, (last visited July 20, 2006).


Notes: The Post-Casey Landscape


Note 5. Late-Term Abortions


Congress passed and President Bush signed the “Partial Birth Abortion Ban Act of 2003.”  Pub.L. 108-105, §3(a), Nov. 5, 2003, 117 Stat. 1206, codified at 18 U.S.C.A. §1531 (2004).  The Act provides:

§1531. Partial-birth abortions prohibited

(a)          Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both. This subsection does not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself. This subsection takes effect 1 day after the date of enactment of this chapter.

(b)          As used in this section –

(1)        the term 'partial-birth abortion' means an abortion in which the person performing the abortion

A.     deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and

B.     performs the overt act, other than completion of delivery, that kills the partially delivered living fetus; and

(2)        the term 'physician' means a doctor of medicine or osteopathy legally authorized to practice medicine and surgery by the State in which the doctor performs such activity, or any other individual legally authorized by the State to perform abortions: Provided, however, That any individual who is not a physician or not otherwise legally authorized by the State to perform abortions, but who nevertheless directly performs a partial-birth abortion, shall be subject to the provisions of this section.

(c)          (1)   The father, if married to the mother at the time she receives a partial-birth abortion procedure, and if the mother has not attained the age of 18 years at the time of the abortion, the maternal grandparents of the fetus, may in a civil action obtain appropriate relief, unless the pregnancy resulted from the plaintiff's criminal conduct or the plaintiff consented to the abortion.

(2) Such relief shall include

A.     money damages for all injuries, psychological and physical, occasioned by the violation of this section; and

B.     statutory damages equal to three times the cost of the partial-birth abortion.

(d)          (1) A defendant accused of an offense under this section may seek a hearing before the State Medical Board on whether the physician's conduct was necessary to save the life of the mother whose life was endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.

(2)   The findings on that issue are admissible on that issue at the trial of the defendant. Upon a motion of the defendant, the court shall delay the beginning of the trial for not more than 30 days to permit such a hearing to take place.

(e)          A woman upon whom a partial-birth abortion is performed may not be prosecuted under this section, for a conspiracy to violate this section, or for an offense under section 2, 3, or 4 of this title based on a violation of this section.


 18 U.S.C.A. §1531 (2004).


In Gonzales v. Carhart, 127 S. Ct. 1610 (2007), the U.S. Supreme Court upheld the Act in a 5-4 decision.  The Court concluded that the federal statute's greater specificity and precision distinguished it from the Nebraska statute struck down in Stenberg v. Carhart.  For commentaries on the Court's decision, see articles by George J. Annas, R. Alta Charo, Jeffrey M. Drazen, and Michael F. Greene in the May 24, 2007 issue of the New England Journal of Medicine.

For a medical perspective on the Act, see Michael F. Greene and Jeffrey L. Ecker, Abortion, Health , and the Law, 350 N. Eng. J. Med. 184 (2004).


Note 6. Sources.


For an overall review of the topic from a public health perspective, see Cynthia C. Harper, Jillian T. Henderson, and Philip D. Darney, Abortion in the United States, 26 Annu. Rev. Public Health 501 (2005).


Notes: Thirty Years of Abortion Jurisprudence


Note 2. Government Funding for Abortions.


For a decision involving the federal government’s refusal to pay for an abortion in a case involving a fetal abnormality, see Britell v. United States, 372 F.3d 1370 (Fed. Cir. 2004) (under the federal CHAMPUS program).


Note 3. Minors and Abortion


For a summary of the law involving minors and abortion, see Carol Sanger, Regulating Teenage Abortion in the United States: Politics and Policy, 18 Int’l J.L. & Pol’y & Fam. 305 (2004); and National Conference of State Legislatures, Parental Consent or Notification for Abortion, available at: (last visited July 20, 2006).  For an analysis of the implementation of a judicial waiver program in a particular state, see Helena Silverstein, et al., Judicial Waivers of Parental Consent for Abortion: Tennessee’s Troubles Putting Policy into Practice, 27 Law & Policy 399 (2005).


The United States Supreme Court found New Hampshire’s parental notification law, prohibiting physicians from performing abortions on minors without prior written notice to a parent or guardian, could be unconstitutional in a medical emergency. The matter was remanded to the Court of Appeals for a determination of a remedy that would not invalidate the law in its entirety. Planned Parenthood v. Heed, 390 F.3d 53, cert granted sub nom. Ayotte v. Planned Parenthood, 125 S.Ct. 2294 (2005), vacated, 126 S.Ct. 961 (2006).


The U.S. House of Representatives passed a bill making it a criminal offense to transport a minor across state lines to avoid state parental notification laws. The Child Interstate Abortion Notification Act, 109th Congress, 1st Session, H.R. 748 (April 27, 2005). See also, Sheryl Gay Stolberg, House Tightens Parental Rule for Abortions, The New York Times, April 28, 2005, at A1, col. 5 (noting that Senate likely to consider measure later in the year).


A recent case describes the history of a policy in the District of Columbia that allegedly permitted government administrators to authorize abortions for developmentally disabled individuals; Does I through III v. District of Columbia, 374 F. Supp. 2d 107 (D.D.C. 2005).


A federal district court entered a permanent injunction against enforcement of a state law requiring medical professionals to report sexual activity by underage patients where there is no reason to believe the patient has been injured from the illegal sexual activity. Aid for Women v. Foulston, 427 F.Supp.2d 1093 (D. Kan. 2006). The trial court recognized the inherent difficulty between the effect of enforcement the statute and legislative intent;

[T]he court is left with the difficult task of balancing the state's interest in preventing child abuse against the breach of informational privacy resulting from reports made to SRS [the child protective authorities]. The court reaches its decision, in part, by considering the nature of the information involved. The Reporting Statute requires disclosure of highly personal information from plaintiffs' minor patients and clients. The court is convinced even a limited breach of confidentiality concerning such unique and intimate information could have large implications for the well-being of minors. The court is also struck by the magnitude of the change in policies outlined in the 2003 advisory opinion. It is persuasive that the parties operated under the 1992 advisory opinion [which did not require disclosure for most minors involved in consensual sexual activity] for a substantial period of time without discernible problems. This mitigates against allowing a breach of minors' informational privacy rights even if such a breach is made in an investigatory context. Further, the court is hesitant to sanction such a monumental change in policy considering the new policy's imposition on the informational privacy rights of minors. Based on the aforementioned, the court finds plaintiffs are likely to succeed on their informational privacy claim. Thus, the court grants plaintiffs' motion for a preliminary injunction on this basis.

Aid for Women v. Foulston, 327 F. Supp. 2d 1273, 1288 (D. Kansas 2004)(decision at preliminary injunction stage).


Finally, former Texas Supreme Court Justice (and current U.S. Attorney General) Alberto Gonzales’s opinion in a Texas abortion case involving a minor gained national attention with his appointment as Attorney General and in debates about whether he will eventually be nominated to the U.S. Supreme Court. In re Jane Doe, 19 S.W.3d 346 (2000).


Note 4. Informed Consent and Waiting Periods


Summit Med. Ctr. of Ala., Inc. v. Riley, 318 F. Supp. 2d 1109 (M.D.  Ala. 2003) (striking down application of state law informational disclosure requirements as applied to women seeking abortion where their fetuses displayed fetal abnormalities).  See also, Christine L. Raffaele, Validity of State “Informed Consent” Statutes by Which Providers of Abortions are Required to Provide Patient Seeking Abortion with Certain Information, 119 A.L.R. 5th 315 (2004).


Note 7. Abortion Protesters.


For a recent appellate decision upholding a statute regulating speech and activities in buffer zone around facilities performing abortions, see McGuire v. Reilly, 386 F.3d 45 (1st Cir. 2004), cert. denied 125 S.Ct. 1827 (2005).