After Roe v. Wade
After Roe v. Wade, several laws and court decisions have continued to shape the landscape of reproductive rights. A brief summary follows. And following the Supreme Court's 2022 decision to overturn Roe, this issue is even more hot-button than in the past.
The 1973 U.S. Supreme Court decision in Roe v. Wade established limited constitutional protection for abortion. But abortion soon became an even more divisive issue in the United States. Groups opposed to abortion became organized and politically powerful.
Abortion bans (to varying degrees) are now in some jurisdictions across the United States. But there is no nationwide ban on abortion. Pregnant people can still access abortion in certain states.
Continue reading for a legal history and more information about abortion access post-Roe.
The Politicization of Abortion Rights
Abortion became a platform issue in American politics after Roe v. Wade. Even candidates running for president often make this one of the central issues in their campaigns.
Although the issue of abortion had for so long been characterized as a constitutional right, it remains one of the most significant parts of many candidates' runs for office. There are, of course, other factors making this issue important. But the issue of how abortion bans relate to body autonomy and whether they threaten constitutional rights remains hotly debated.
Opposition to Abortion
Groups opposed to abortion have worked in various ways to reduce or eliminate abortions in the United States. The groups are often known as "pro-life" groups. They have sponsored legislation that aims to limit access to abortion. Some have attempted (unsuccessfully) to reverse Roe v. Wade by way of constitutional amendments.
Some groups opposed to abortion try to persuade patients not to undergo abortions by demonstrating outside of abortion clinics. In some extreme cases, individuals and groups opposed to abortion have vandalized or even bombed abortion clinics. Violence like this has made access to abortion difficult in some regions.
Other attempts to reduce the number of abortions have involved eliminating public funding of abortions. Other attempts have involved prohibiting health care clinics that receive public funding from counseling women about the option of abortion.
Soon after taking office in 1993, President Bill Clinton effectively reversed federal regulations that prohibited health care clinic staff members receiving public funding from dispersing information about abortions or referring women to abortion providers. Once this so-called "gag rule" was lifted, these clinics could again inform women about abortion.
Planned Parenthood v. Casey
SCOTUS upheld Roe v. Wade in Planned Parenthood v. Casey in 1992. The Casey Court held that a person's right to privacy included the decision and right to obtain an abortion. But it also upheld that a person can only do so during the first trimester of their pregnancy.
It is under the Fourteenth Amendment to the U.S. Constitution that claims concerning a person's right to privacy arise. Under this amendment, a person is entitled to equal protection of the laws. Standard interpretations of this amendment indicate that this amendment bars government intrusion into a person's private sphere. In the case of the abortion issue, the right to choose whether to carry a fetus to term has been understood as part of that sphere.
In this case, SCOTUS reaffirmed a person's right to obtain an abortion under the Fifth and Fourth Amendments to the United States Constitution. Many saw Casey as a victory for reproductive health care and a person's right to choose to carry a child to term.
Whole Woman's Health v. Hellerstedt
In a major 2016 abortion ruling, the Supreme Court struck down parts of a restrictive Texas law that would have forced dozens of abortion clinics to close and deny thousands of women legal access to abortion services.
Justices in Whole Woman's Health v. Hellerstedt struck down a two-part Texas law that:
- Required clinics providing abortion services to meet the same building standards as walk-in surgical centers
- Required doctors performing abortions to have admitting privileges at a nearby hospital within 30 miles of the clinic
Supporters of the law claimed that it protected patients' health at Texas abortion clinics. Opponents of the law argued that it was unduly restrictive and would have forced an almost complete shutdown of abortion clinics in the state.
The Court's ruling, authored by Justice Stephen Breyer, preserved a woman's right to choose. The court found the Texas law unconstitutional in placing strict standards on abortion clinics and would have resulted in an undue burden on women seeking access to abortion.
NIFLA v. Becerra
In 2015, California lawmakers signed a law requiring crisis pregnancy centers — counseling centers that don't offer abortion services — to provide notice of public programs that cover additional family planning services, including abortion.
But the U.S. Supreme Court overturned the law in 2018, citing First Amendment free speech protections.
Dobbs v. Jackson Women's Health Organization
In March 2018, the Center for Reproductive Rights filed a lawsuit on behalf of Jackson Women's Health Organization in Mississippi. This women's health organization was the last remaining abortion clinic in this state.
The lawsuit challenged the state's ban on abortions after 15 weeks of pregnancy. The lower court blocked the lawsuit because relevant laws had allowed for abortions for 50 years before the case was initiated.
Mississippi appealed to the U.S. Supreme Court. Mississippi asked that SCOTUS uphold the ban. Attorneys for the state argued that it was consistent with Roe v. Wade.
After Justice Amy Coney Barrett joined the Supreme Court during the Trump administration, the balance in liberal versus conservative justices appeared to favor the political right. At that point, Mississippi requested that the court overrule Roe v. Wade outright.
A Supreme Court majority agreed with Mississippi. Supreme Court Justice Samuel Alito wrote that “procuring an abortion is not a fundamental constitutional right because such a right has no basis in the Constitution's text or in our Nation's history."
The majority pointed to several arguments it found persuasive in overturning Roe v. Wade, including:
- The division of powers between states and the federal government
- The Constitution never explicitly protected abortion rights
U.S. Attorney General Merrick Garland responded in June 2022, "[t]he Justice Department strongly disagrees with the Court's decision." In a statement, Garland also said, “[t]his decision deals a devastating blow to reproductive freedom in the United States."
After the Dobbs decision, states have the right to pass abortion restrictions. They do so under their own state constitutions and by each state legislature's decisions.
Along with these changes, there is worry that access to contraception might also be affected. In the wake of the Dobbs decision, it is still legal to get an abortion in most states, including medication abortions and other in-clinic abortions.
It is not illegal to cross state lines to undergo reproductive health care-related treatments, including those related to abortion. Legal abortions are still an option. For example, in Pennsylvania, Louisiana, and Colorado, pregnant women and pregnant people may obtain abortions subject to certain restrictions.
It's important to check your state's laws to ensure you can legally obtain an abortion.
Access to Abortion as a Right to Self-Determine
At some point, you might have heard about the right of “self-determination." Essentially, the right to self-determination means a person can make their own decisions:
Many pro-choice groups frame the issue of unrestricted access to abortion as central to rights to self-determination. They argue that when someone bears a child, they are assigned responsibilities that can interfere with their ability to determine themselves. These pro-choice groups frame the issue of having the right to choose as a fundamental right.
In parenting a child, for example, a person must direct attention away from themselves as they rear and raise a child. The amount of emotional and physical resources that go into this often deprive a person of opportunities to devote their emotional and physical resources to other endeavors.
Medicaid and Abortion
Passed in 1976, the Hyde Amendment prevents using state funds for abortion care. Under Medicaid, as a result, a person cannot undergo an abortion using this state-funded type of insurance. The Hyde Amendment was challenged in Harris v. McRae. Decided in 1980, Harris resulted in SCOTUS upholding the ban on Medicaid-funded abortion.
Although this is still in effect today, you can get an abortion, even if you rely on Medicaid for insurance. Certain organizations like Planned Parenthood provide reproductive health services on a sliding scale. To qualify, you must fall below a certain income level.
Low-income patients can get treatment through organizations like these. This means you might pay less than you otherwise might if you can prove you qualify for financial assistance. You can learn more about sliding scales at Planned Parenthood's website, available here.
Informed Consent and Parental Consent
Also complicating the issue of abortion rights are rules requiring a woman to get "informed consent" or parental consent. Informed consent involves a requirement that before performing an abortion, an abortion provider must inform the patient about:
- The risks of abortion
- Alternatives to abortion
- The age of the fetus
- The availability of government assistance for carrying the pregnancy to term
Parental consent involves requiring a minor wishing to undergo an abortion first obtain consent from her parent or guardian.
The Supreme Court generally has upheld parental consent laws, provided the laws allow a minor the ability to get permission to abort from a judge rather than a parent, and provided that the judge's decision takes into account the minor's best interests, maturity, and ability to make decisions.
The Court also has generally upheld laws requiring the notification — as opposed to consent — of parents of minors seeking to undergo an abortion. Consent laws have been upheld so long as the laws don't create an undue burden on the woman seeking an abortion. But the Court hasn't upheld laws requiring a woman to obtain her spouse's permission before undergoing an abortion.
Often in dispute has been whether a person, once they have reached reproductive age, should be able to decide for themselves without parental consent. In many states, it is still possible to undergo all reproductive health care-related treatments regardless of whether a person is over the age of majority.
Learn About Abortion Laws After Roe v. Wade: Contact a Lawyer
Laws about the right to undergo an abortion continue to evolve. There's little question that abortion will remain a divisive and powerful political issue for decades to come. For more information about abortion laws, consult a qualified family law attorney.
Remember, too, that it is not illegal to cross state lines to get an abortion. In states like New York, Illinois, Connecticut, Georgia, and Nebraska, for example, it is still legal to get an abortion. In some of these states, there are fewer restrictions than in others. If in one state, where you fall in the timeframe of your pregnancy is not within the legal limit, you could travel elsewhere to get one.
Can I Solve This on My Own or Do I Need an Attorney?
- The laws surrounding reproductive rights vary by state
- You may need legal help to understand frequent changes to these laws
- An attorney can help you protect your reproductive rights
Get tailored advice about your rights and ask a lawyer questions. Many attorneys offer free consultations.