In the Courts

Major Decisions Since Roe v Wade Show Steady Chipping Away of Reproductive Rights

Since the 1973 decision in Roe v. Wade, the U.S. Supreme Court has handed down more than 20 major opinions regarding a woman's access to safe, legal abortion. Prior to 1973, the Supreme Court decided two contraceptive cases, Griswold v. Connecticut and Eisenstadt v. Baird, which helped to establish the basic principle in Roe: that the constitutional right to privacy extends to decisions regarding whether or not to have children.

Contraceptive Cases
1965 - Griswold v. Connecticut
Nature of Case: Challenge to a Connecticut law prohibiting use of contraceptives.
Holding: The law is unconstitutional. The Constitution contains a "right to privacy" that protects the decision of married couples to use contraceptives.

1972 - Eisenstadt v. Baird
Nature of Case: Challenge to a Massachusetts law allowing the sale or distribution of contraceptives only to married persons.
Holding: The law is unconstitutional. The right to privacy extends to individuals and protects the right of unmarried persons to obtain contraceptives.

1977 - Carey v. Population Services International
Nature of Case: Challenge to a New York law banning sale of even nonprescription contraceptives by persons other than licensed pharmacists; sale or distribution to minors under sixteen; and contraceptive display and advertising.
Holding: Statute is unconstitutional because it violates the right to privacy of adults and minors and to the right of free speech of vendors of contraceptives.

1983 - Bolger v. Youngs Drug Products Corporation
Nature of Case: Challenge to a federal law that made it a crime to send through the U.S. mail unsolicited advertisements for contraceptives.
Holding: The law is unconstitutional because it violates the First Amendment's protection of "commercial speech." Possible offensiveness to sensitive addressees is not valid rationale for prohibiting communication of truthful, non obscene information. The law also interferes with parents' access to information that might help them to discuss birth control with their children.

Abortion Cases
1973 - Roe v. Wade
Nature of Case: Challenge to a Texas law prohibiting abortions except to save the woman's life.
Holding: The law is unconstitutional. The right to privacy extends to the decision of a woman, in consultation with her physician, to terminate her pregnancy. During the first trimester of pregnancy, this decision may be effectuated free of state interference. After the first trimester, the state has a compelling interest in protecting the woman's health and may reasonably regulate abortion to promote that interest. At the point of fetal viability (capacity for sustained survival outside the uterus), the state has a compelling interest in protecting potential life and may ban abortion, except when necessary to preserve the woman's life or health.

1973 - Doe v. Bolton
Nature of Case: Challenge to a Georgia law, based on the model proposed by the American Law Institute, prohibiting abortions except in cases of medical necessity, rape, incest, and fetal abnormality. The Georgia law also required that all abortions be performed in accredited hospitals and that two doctors and a committee concur in the woman's abortion decision; and that only Georgia residents may obtain abortions in that State.
Holding: The law is unconstitutional. It violates a woman’s right to choose abortion as recognized in Roe v. Wade (see above). The residency requirement violates the Privileges and Immunities Clause of the Constitution.

1975 - Connecticut v. Menillo
Nature of Case: Appeal from conviction of non physician for performing abortion.
Holding: States may require that only physicians provide abortions. Such a regulation provides the minimum standard of safety upon which the constitutional right recognized in Roe was predicated.

1976 - Planned Parenthood of Central Missouri v. Danforth
Nature of Case: Challenge to a Missouri law requiring (a) parental consent to a minor's abortion; (b) husband's consent to a married woman’s abortion; (c) the woman's written informed consent; (d) that no second-trimester abortion be done by saline amniocentesis; and (e) that abortion providers do certain record keeping and reporting.
Holding: Parental and spousal consent requirements held unconstitutional because they delegate to third parties an absolute veto power over a woman’s abortion decision which the state does not itself possess. The requirement that the woman certify that her consent is informed and freely given is constitutional, as are the record-keeping and reporting requirements. The ban on saline amniocentesis is struck down because saline amniocentesis is the most commonly used abortion method after the first 12 weeks of pregnancy and was shown to be less dangerous to the woman's health than other available methods; the choice of method must be left to the physician. (Currently, dilatation and evacuation — D&E — is the most common method of mid trimester abortion.)

1976 - Bellotti v. Baird
Nature of Case: Challenge to a Massachusetts law that required consent of both parents to a minor's abortion, but allowed the requirement to be waived by a judge for "good cause shown."
Holding: The statute may be constitutional, depending on the meaning of "good cause" and exact procedure that will be utilized. Case remanded for definitive interpretation by Massachusetts state courts of meaning of the statute (see discussion of Bellotti II, 1979.)

1977 - Maher v. Roe
Nature of Case: Challenge to Connecticut's limitation of state Medicaid funding to medically necessary abortions and refusal to fund "elective" abortions.
Holding: The law is constitutional. The state need not fund a woman's exercise of her right to choose abortion even though it pays the costs of childbirth.

1977Poelker v. Doe
Nature of Case: Challenge to a St. Louis, Missouri, municipal policy of refusal of all publicly financed hospital services for "elective" abortions.
Holding: The law is constitutional for the reasons stated in Maher v. Roe (see above).

1979 - Colautti v. Franklin
Nature of Case: Challenge to provisions of Pennsylvania law requiring physician intending to perform an abortion to determine that fetus is not viable. If physician finds that fetus "is or may be viable," he or she is required to exercise the degree of care in performing abortion that would have been exercised if a live birth were intended.
Holding: Provisions are "void for vagueness" because meanings of "viable" and "may be viable" are unclear. Decision on viability must be left to the good-faith judgment of the physician. Provisions are also unconstitutional because they impose criminal liability on physicians regardless of their intent to violate the law.

1979 - Bellotti v. Baird (Bellotti II)
Nature of Case: The Massachusetts law challenged in Bellotti I (1976) arrived at the court definitively interpreted by the Massachusetts Supreme Judicial Court. The law would require, the Massachusetts court said, (a) that a minor first attempt to obtain her parents' consent and be refused before approaching a court for permission for her abortion and that parents be notified when a minor files a petition for judicial waiver; and (b) that the judge hearing the minor's petition may deny the petition if the judge finds that an abortion would be against the minor's best interests.
Holding: The law is unconstitutional. All minors must have an opportunity to approach a judge without first consulting their parents, and the proceedings must be confidential and expeditious. A mature minor must be given permission for an abortion, regardless of the judge's view as to her best interests. Even an immature minor must be permitted to have a confidential abortion, if the abortion is in her best interests.

1980 - Harris v. McRae
Nature of Case: Challenge to the Hyde Amendment’s ban on the use of federal Medicaid funds for medically necessary abortions except those necessary to save the woman's life.
Holding: The Hyde Amendment is constitutional. The government has no obligation to provide funds for medically necessary abortions.

1980 - Williams v. Zbaraz
Nature of Case: Challenge to an Illinois version of the Hyde Amendment.
Holding: The statute is constitutional for the same reasons the Hyde Amendment is upheld in Harris v. McRae (see above).

1981 H.L. v. Matheson
Nature of Case: Challenge to a Utah law requiring the physician to notify a parent of an unemancipated minor prior to abortion.
Holding: The law is constitutional. The plaintiff is a dependent minor, living at home, who has made no claim that she is mature enough to give informed consent to abortion or that she has any problems with her parents that make notice inappropriate. As to this minor, the law is valid. Justices Stewart and Powell wrote a concurring opinion to emphasize that mature minors and those whose best interests mandate that parents not be involved have a right to a confidential abortion.

1983 - City of Akron v. Akron Center for Reproductive Health
Nature of Case: Challenge to an Akron, Ohio, ordinance requiring that (a) a woman wait 24 hours between consenting to and receiving an abortion; (b) all abortions after the first trimester of pregnancy be performed in full service hospitals; (c) minors under fifteen have parental or judicial consent for an abortion; (d) the attending physician personally give the woman information relevant to informed consent; (e) specific information be given to a woman prior to an abortion, including details of fetal anatomy, a list of risks and consequences of the procedure, some of which were false or hypothetical, and a statement that "the unborn child is a human life from the moment of conception"; and (f) fetal remains be "humanely" disposed of.
Holding: All challenged portions of the ordinance are unconstitutional: (a) the 24-hour waiting period serves neither the state's interest in protecting the woman's health nor in ensuring her informed consent; (b) the post first-trimester hospitalization requirement interferes with a woman's access to abortion services without protecting her health because the dilatation and evacuation (D&E) method of mid trimester abortion may be performed as safely in out patient facilities as in full-service hospitals; (c) the minors' consent requirement fails to guarantee an adequate judicial alternative to parental involvement (see Bellotti II, 1979); (d) the physician counseling requirement makes abortions more expensive and is not necessary to ensure informed consent since the physician can delegate the counseling task to another qualified individual; (e) the informed consent "script" intrudes on the physician's judgment as to what is best for the individual woman and contains information designed to dissuade the woman from having an abortion; and (f) the requirement for "humane" disposal of fetal remains is too vague to give fair warning of what the law requires. In 1992, the Supreme Court overruled parts of this case (see Planned Parenthood v. Casey).

1983 - Planned Parenthood of Kansas City, Missouri, v. Ashcroft
Nature of Case: Challenge to a Missouri law requiring that (a) all post first-trimester abortions be performed in hospitals; (b) minors under 18 have parental consent or judicial authorization for their abortions; (c) two doctors be present at the abortion of a viable fetus; and (d) a pathologist's report be obtained for every abortion.
Holdings: (a) The hospitalization requirement is unconstitutional for the reasons stated in City of Akron v. Akron Center for Reproductive Health (1983); (b) the parental consent requirement is constitutional because the judicial bypass alternative contained in the statute conforms to the standards set out in Bellotti II (1979); (c) the presence of two doctors at late abortions serves the state's compelling interest in protecting potential life after viability and is, therefore, constitutional; and (d) the requirement of a pathology report is constitutional because it poses only a small financial burden to the woman and protects her health.

1983 - Simopoulos v. Virginia
Nature of Case: Criminal conviction of a physician for violating a Virginia law that requires all post first-trimester abortions to be performed in hospitals.
Holding: The physician's conviction is upheld. Virginia law provides for licensing of freestanding ambulatory surgical facilities as "hospitals." Consequently, the Virginia law is not as restrictive as the laws struck down in City of Akron v. Akron Center for Reproductive Health (1983) and Planned Parenthood of Kansas City, Missouri v. Ashcroft (1983), and is therefore constitutional. Dr. Simopoulos could have avoided criminal prosecution by having his clinic licensed.

1986 - Babbitt v. Planned Parenthood of Central and Northern Arizona (9th Cir. 1986)
Nature of Case: Federal Court of Appeals for the Ninth Circuit ruled unconstitutional an Arizona law prohibiting grants of state money for family planning to organizations that provide abortion or abortion counseling and referral. The law would be valid, the appeals court said, only if the state could prove it was the only way to stop its money from being used to pay for abortions and abortion related activities. Since the state could not prove this, the law was struck down.
Holding: The U.S. Supreme Court summarily affirmed the Ninth Circuit without issuing an opinion. Compare, Rust v. Sullivan (1991).

1986 - Thornburgh v. American College of Obstetricians and Gynecologists
Nature of Case: Challenge to Pennsylvania's 1982 Abortion Control Act requiring (a) that a woman be given specific information before she has an abortion, including state-produced printed materials describing the fetus; (b) that physicians performing post-viability abortions use the method most likely to result in fetal survival unless it would cause "significantly" greater risk to a woman's life or health; (c) the presence of a second physician at post viability abortions; (d) detailed reporting to the state by providers on each abortion, with reports open for public inspection; and (e) one parent's consent or a court order for a minor's abortion.
Holding: (a) the informed consent provision is invalid because it interferes with the physician's discretion and requires a woman to be given information designed to dissuade her from having an abortion; (b) the provision restricting post-viability abortion methods is invalid because it requires the woman to bear an increased risk to her health in order to maximize the chances of fetal survival; (c) the second-physician requirement is invalid because it does not make an exception for emergencies; (d) the reporting requirement is unconstitutional because it could lead to disclosure of the woman's identity; and (e) the parental consent issue is remanded to the lower court for consideration in light of newly enacted state court rules. In 1992, the Supreme Court overruled portions of this case in Planned Parenthood v. Casey.

1989 - Webster v. Reproductive Health Services
Nature of Case: Challenge to Missouri's 1986 Act: (a) declaring that life begins at conception; (b) forbidding the use of public funds for the purpose of counseling a woman to have an abortion not necessary to save her life; (c) forbidding the use of public facilities for abortions not necessary to save a woman's life; and (d) requiring physicians to perform tests to determine viability of fetuses after 20 weeks gestational age.
Holding: (a) the court allowed the declaration of when life begins to go into effect because five justices agreed that there was insufficient evidence that it would be used to restrict protected activities such as choices of contraception or abortion. Should the declaration be used to justify such restrictions in the future, the affected parties could challenge the restrictions at that time; (b) the court unanimously declined to address the constitutionality of the public funds provision. The court accepted Missouri's representation that this provision was not directed at the conduct of any physician or health care provider, private or public, but solely at those persons responsible for expending public funds, and that the provision would not restrict publicly employed health care professionals from providing full information about abortion to their clients; (c) the court upheld the provision that barred the use of public facilities. It ruled that the state may implement a policy favoring childbirth over abortion by allocations of public resources such as hospitals and medical staff; and (d) the court upheld the provision requiring viability tests by interpreting it not to require tests that would be "imprudent" or "careless" to perform.

1990 - Ohio v. Akron Center for Reproductive Health
Nature of Case: Challenge to a 1985 Ohio statute requiring a physician performing an abortion on a minor to give notice to her parent or guardian 24 hours prior to the procedure. Although the law provided a judicial bypass mechanism, the Sixth Circuit Court of Appeals found several aspects of it unduly burdensome to minors and constitutionally deficient.
Holding: Without deciding whether a law that requires notice to only one parent requires a judicial bypass, the court held the bypass provided by the Ohio law met constitutional standards. The court rejected the argument that the judicial bypass was flawed because it required the minor to sign her name on court papers, prove her entitlement to avoid parental involvement by clear and convincing evidence, and wait as long as three weeks to obtain a court ruling. It also upheld a requirement that the physician personally notify the parent.

1990 - Hodgson v. Minnesota
Nature of Case: Challenge to a 1981 Minnesota statute that required notification of both biological parents, followed by a wait of at least 48 hours, prior to a minor's abortion. No exception to the notification requirement was provided for divorced parents or couples who were not married. A second section of the statute provided for a judicial bypass if the two-parent notification provision without a waiver procedure were enjoined. The plaintiffs challenged the second section based on evidence gathered during the five years that the parental consent requirement and judicial bypass were in effect.
Holding: The court held that two-parent notification with no judicial bypass alternative poses an unconstitutional burden on a minor's right to abortion. A different majority of the court allowed the second section of the Minnesota law to stand, however, because of the addition of a judicial alternative. In addition, the court upheld the validity of the 48-hour waiting period following notification before the abortion can be performed.

1991 - Rust v. Sullivan / State of New York v. Sullivan
Nature of Case: Challenge to 1988 federal regulations that forbade counseling and referral for abortion or advocacy of abortion rights in programs that receive funds under Title X of the federal Public Health Service Act (1970). Additionally, the regulations require clinics to "financially and physically" separate Title X-funded activities from privately funded "abortion-related activities." Holding: The court held that the regulations do not violate the Title X statute because they are a reasonable interpretation of the statutory prohibitions against the use of Title X funds in programs "where abortion is a method of family planning." The court further held that the regulations do not violate the First Amendment or the right to choose abortion, ruling that the government has no obligation to pay for the exercise of constitutional rights. The court held that the government's decision not to fund the provision of information does not directly interfere with the rights of doctors, clinics, or patients, since providers are free to offer abortions and abortion-related information in separate programs, and women who wish unbiased medical information and services are free to seek them elsewhere.

1992 - Planned Parenthood of Southeastern Pennsylvania v. Casey
Nature of Case: Challenge to Pennsylvania's 1989 Abortion Control Act. The 1989 statute required that, except in medical emergencies: (a) a woman wait 24 hours between consenting to and receiving an abortion; (b) the woman be given state-mandated information about abortion and offered state-authored materials on fetal development; (c) a married woman inform her husband of her intent to have an abortion; and (d) minors' abortions be conditioned upon the consent, provided in person at the clinic, of one parent or guardian, or upon a judicial waiver. In addition, physicians and clinics that perform abortions were required to provide to the state annual statistical reports on abortions performed during the year, including the names of referring physicians.
Holding: The court reaffirmed the validity of a woman's right to choose abortion under Roe v. Wade, but announced a new standard of review that allows restrictions on abortion prior to fetal viability so long as they do not constitute an "undue burden" to the woman. A restriction is an “undue burden” when it has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion. Under this standard, only the husband notification provision was considered an undue burden and therefore unconstitutional. All the other provisions were upheld as not unduly burdensome.In upholding the Pennsylvania abortion restrictions, the court overturned portions of two of its previous rulings, City of Akron v. Akron Center for Reproductive Health (1983) and Thornburgh v. American College of Obstetricians and Gynecologists (1986).

1993 - Bray v. Alexandria Women's Health Clinic
Nature of Case: Anti-abortion demonstrators (including the leadership of Operation Rescue) challenged an injunction against their activities that included blocking access to health care facilities in the Washington, D.C. area. The injunction was based on a 1871 civil rights statute that forbids private conspiracy to violate constitutional rights. The demonstrators claimed their activities did not violate the statute.
Holding: The court held that the demonstrators’ activities did not violate the civil rights statute because their actions were not motivated by "class-based discriminatory animus against women," as the statute requires, but rather by opposition to abortion. The court held further that the demonstrators incidental impact on the right of women to travel interstate (for the purpose of securing an abortion) was not the kind of violation of a right for which the 1871 statute was enacted.

1994 - National Organization for Women v. Scheidler
Nature of Case: National Organization for Women (NOW) sought to use the federal Racketeer Influenced and Corrupt Organizations (RICO) Act to sue anti-abortion organizations that engage in unlawful blockades and other harassment against reproductive health clinics. The RICO Act, established in 1970 as a tool against organized crime, punishes "enterprises" that engage in a "pattern of racketeering." NOW argued that RICO is applicable because the unlawful actions constituted a nationwide conspiracy to eliminate access to abortion by using extortion and intimidation to drive the clinics out of business. The U.S. Court of Appeals for the Seventh Circuit had ruled that the case could not go forward because RICO applies only to activities that are motivated by economic gain, which could not be demonstrated in this case.
Holding: The court overturned the appeals court decision, allowing the lawsuit to proceed using RICO as its basis. The court held that RICO can be used in the absence of an economic motive, and that the term "enterprise" can include any individual or group of individuals, partnership, corporation, association, or other legal entity.

1994 - Madsen v. Women's Health Center
Nature of Case: Anti-abortion protesters sought to overturn on First Amendment grounds an injunction against their activities at a Melbourne, Florida, clinic. The injunction prohibited demonstrations within 36 feet of the clinic property line; noise and visual displays that could be heard and seen inside the clinic; approaching any person seeking services within 300 feet of the clinic, unless the person indicated a desire to communicate; and established a 300-foot buffer zone around the residences of clinic physicians and staff.
Holding: The court held that the 36-foot buffer zone protecting clinic entrances and driveways is a content-neutral measure that does not infringe on the First Amendment rights of abortion opponents, and that the ban on disruptive noise was also constitutional. The majority indicated that Florida's interests include "protecting a woman's freedom to seek lawful medical or counseling services in connection with her pregnancy." But the court limited the scope of its ruling by striking portions of the injunction as broader than necessary to protect the state’s interests, including application of the buffer zone to certain private property adjoining the clinic, the 300-foot no approach zone and residential buffer zone, and the prohibition against "images observable to" patients inside the clinic.

1997 - Schenck v. Pro-Choice Network of Western New York
Nature of Case: Challenge on First Amendment grounds to injunction aimed at protecting access to reproductive health care clinics. Three elements of the injunction were challenged: (1) a “fixed” buffer zone prohibiting all demonstration activity within 15 feet of the clinics’ doorways, driveways, and parking lot entrances; (2) a “floating” zone prohibiting all demonstration activity within 15 feet of any person or vehicle entering or leaving the clinics; (3) “cease and desist” provisions, which allowed no more than two “sidewalk counselors” to approach patients within the buffer zones, but required them to stop “counseling” and withdraw outside the zones upon request.
Holding: The government interests in ensuring public safety and protecting a woman’s freedom to seek pregnancy-related services justify properly tailored injunctions to secure unimpeded physical access to clinics. The court upheld the “fixed” buffer zone as necessary to ensure safe access to the clinics in light of the demonstrators’ previous behavior. The court, however, struck down as unconstitutional the “floating buffer zone,” because it burdened more speech than was necessary to achieve the government interest. The court upheld the “cease and desist” provision because it allowed demonstrators to espouse their message outside of the zone and was necessary to address their previous harassing and intimidating behavior. As the court struck down the “floating” zone, it did not rule on the “cease and desist” provisions as applied to that zone.

1997 - Mazurek v. Armstrong
Nature of the Case: Challenge to a Montana law that requires only physicians, i.e., not physician assistants, may provide abortion.
Holding: The law has neither the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion. It therefore does not create an undue burden on a woman’s right to abortion and is constitutional. The court reiterated its position that “the performance of abortions may be restricted to physicians.” Note: this statute was later ruled unconstitutional by the Montana Supreme Court under the Montana Constitution.

2000 - Hill v. Colorado
Nature of Case: Challenge on First Amendment grounds to a Colorado statute that established an eight-foot “bubble zone” around anyone within 100 feet of a healthcare facility. This statute forbade individuals from knowingly approaching closer than eight feet another person who is within 100 feet of the entrance of a healthcare facility, without that person’s consent, in order to leaflet, display a sign, or engage in protest, education, or counseling.
Holding: The statute does not violate the First Amendment because it does not regulate speech on the basis of content or viewpoint. The court concluded that it was a reasonable time, place, and manner restriction that left open ample alternative means of communication. The court reasoned that; (1) the eight-foot distance of separation required by the statute would not adversely affect the regulated speech because this is a normal conversational distance; (2) because the statute only bans “approaches,” protestors are not liable if they stand still and others come within eight feet of them; and (3) the protestor must “knowingly” approach, and the “knowingly” requirement protects against accidentally or unavoidably coming within eight feet of someone who is in motion. The court also addressed the question of the legitimacy of the state’s interest in enacting this type of restriction and found the state’s interest in protecting the unwilling listener from persistent and dogged intrusions, particularly in situations that the listener cannot choose to avoid, to be legitimate.

2000 - Stenberg v. Carhart
Nature of Case: Challenge to Nebraska’s so-called “partial-birth” abortion ban.
Holding: The statute is unconstitutional because it lacks an exception for situations when the procedure is necessary to protect the woman’s health. The exception must allow the banned procedure both because the woman’s medical condition requires it and because the banned procedure is less risky than others. In addition, the statute creates an undue burden on a woman’s right to abortion because it has the effect of outlawing the dilation and evacuation (D&E) procedure, the most commonly used method for performing second-trimester abortions.

2003 - National Organization for Women v. Scheidler (“Scheidler II”)
Nature of Case: National Organization for Women (NOW) sought to use the federal Racketeer Influenced and Corrupt Organizations (RICO) Act to sue anti-abortion organizations that engage in unlawful blockades and other harassment against reproductive health clinics. The RICO Act, established in 1970 as a tool against organized crime, punishes "enterprises" that engage in a "pattern of racketeering." NOW argued that RICO is applicable because the unlawful actions constituted a nationwide conspiracy to eliminate access to abortion by using extortion and intimidation to drive the clinics out of business. After the Supreme Court held the suit could proceed even if the anti-abortion groups were not economically motivated (see 1994 ruling), the case was remanded to the lower courts for further proceedings. A jury found defendants had violated RICO by committing extortion, and the district court entered a permanent nationwide injunction prohibiting defendants from threatening clinics, their employees, or their patients. Defendants appealed on the basis that they did not commit extortion because they did not obtain anything of value for themselves by interfering with the provision of medical services.
Holding: The Supreme Court reversed, finding that because defendants did not acquire property, their actions were not extortion. Therefore, the jury’s finding of a RICO violation was erroneous and the injunction was reversed.

2007 - Gonzales v. Carhart
Nature of Case: The Court reviewed the constitutionality of the “Partial Birth Abortion Ban Act of 2003,” which was passed by both houses of Congress and signed into law by President George W. Bush just three years after the Supreme Court struck down a similar Nebraska ban (in Stenberg v. Carhart) as unconstitutional. The Bush Administration brought the current case to the Court after federal appeals courts in New York, Nebraska, and California declared the ban unconstitutional. RCRC and the other signatories to the brief urge the Court to recognize “the abundance of religious voices speaking out against the failure of the Partial Birth Abortion Ban Act of 2003 (the “Act”) to protect women’s health.” The  brief asks the court to “not allow Congress to force a moral consensus where there is none, but rather to let the individual women who face the agonizing decision of whether to terminate a pregnancy or risk their own health do so legally, in consultation and accordance with their own conscience and faith.”
Holding: The Supreme Court ruled, 5-4, to uphold the "Partial-Birth Abortion Ban Act of 2003." Under this decision, it will be a criminal offense for a physician to perform "dilation and evacuation" procedures used in the second-trimester and in the third-trimester when the physician determines that these are the best procedures medically to prevent damage to the woman's health or future ability to bear children. This is the first time an abortion procedure has been banned since Roe v. Wade was decided in 1973 and the first time that qomen's health (as well as life) was not the paramount concern of the court.

Intrusions on Privacy of Pregnant Women
2001 - Ferguson v. City of Charleston
Nature of Case: A state hospital had a policy of testing the urine of pregnant women for cocaine and turning the results over to law enforcement. Ten women who were arrested as a result of the policy sued the hospital claiming that their Fourth Amendment right to be free of unreasonable searches and seizures had been violated.
Holding: A state hospital must obtain the informed consent of its patients (or a warrant) in order to collect urine samples for the purpose of creating evidence of a crime. Otherwise, the patients’ Fourth Amendment rights are violated.

The above text was prepared by: Public Policy Litigation and Law Department of Planned Parenthood Federation of America

Gonzales v. Carhart
On April 18, 2007, the United States Supreme Court ruled, 5-4, to uphold the "Partial-Birth Abortion Ban Act of 2003." Under this decision, it will be a criminal offense for a physician to perform "dilation and evacuation" procedures used in the second-trimester and in the third-trimester when the physician determines that these are the best procedures medically to prevent damage to the woman's health or future ability to bear children. This is the first time an abortion procedure has been banned since Roe v. Wade was decided in 1973 and the first time that qomen's health (as well as life) was not the paramount concern of the court.

In her dissenting opinion, Justice Ruth Bader Ginsburg referred to the drastic change from the court's previous decisions. Quoting opinions in two previous abortion cases, she wrote: ''Our obligation is to define the liberty of all, not to mandate our own moral code.'' She also noted that the decision is a "chipping away" of a right protected by previous court decisions. She wrote:

"Today's decision is alarming. It refuses to take Casey and Stenberg seriously. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG). It blurs the line, firmly drawn in Casey, between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman's health." ("Casey" refers to the Planned Parenthood v. Casey decision of 1992.)

Those upholding the ban were: Chief Justice Robert and Justices Scalia, Alito, Thomas, and Kennedy. Justice Kennedy wrote the opinion. He wrote that the Act does not impose a "substantial obstacle" to late-term but previability abortions and that Congress did not intend it to do so.

The Court also held that the abortion procedure or procedures it was banning could be prohibited because it or they--not the pregnancy--threatened a woman's mental and moral health. In his opinion, Justice Kennedy suggested that the Court was protecting women by banning this procedure and that a pregnant woman who chooses abortion is rejecting true womahood:

"Respect for human life finds an ultimate expression in the bond of love the mother has for her child," he wrote.

Federal courts in three different jurisdictions found the Act to be unconstitutional because it did not include an exception if a woman’s health was in danger. In 2000, the Supreme Court struck down a similar Nebraska ban (in Stenberg v. Carhart) as unconstitutional.

The Court announced that it would hear Gonzales v. Carhart just three weeks after abortion opponent Samuel Alito replaced Sandra Day O'Connor. As a moderate jurist, O’Connor had often cast the deciding vote in favor of abortion rights.

RCRC Challenged Federal Abortion Ban on Religious Grounds
RCRC filed an amici curiae brief with the U.S. Supreme Court in Gonzales v. Carhart,challenging the first-ever federal abortion ban on religious grounds and urging the Court to strike it down.

“The Court’s decision in this case will have enormous consequences for every woman in this country, and for the men and children who love and depend on them,” said Reverend Carlton W. Veazey, President and CEO of the Religious Coalition for Reproductive Choice. Although opponents of legal abortion claim the law before the Court would ban only one procedure that they call “partial-birth abortion,” the law actually would ban several procedures used early in pregnancy. RCRC informed the Court that many religions oppose such undue restrictions on legal abortion because of their belief that a woman’s health must be protected.

“This case will determine if the law will continue to protect the ability of women to choose the safest abortion procedure in cases where their health is at stake or when their baby has such severe problems that it will die shortly after birth,” Reverend Veazey said.

Fifteen other religious and religiously affiliated organizations, seven Episcopal bishops, other religious leaders and scholars, and the presidents of Andover Newton Theological School, the Pacific School of Religion, and Union Theological Seminary joined the brief. It says:

“Because protecting the health of women is a core expression of the religious values of amici, amici agree that all women whose health is at risk should be free to seek the safest medical treatment, without governmental coercion or constraint, in making the difficult decision whether to terminate a pregnancy.”

Gonzales v. Carhart reviewed the constitutionality of the “Partial Birth Abortion Ban Act of 2003,” which was passed by both houses of Congress and signed into law by President George W. Bush just three years after the Supreme Court struck down a similar Nebraska ban (in Stenberg v. Carhart) as unconstitutional. The Bush Administration brought the current case to the Court after federal appeals courts in New York, Nebraska, and California declared the ban unconstitutional.

RCRC and the other signatories to the brief urged the Court to recognize “the abundance of religious voices speaking out against the failure of the Partial Birth Abortion Ban Act of 2003 (the 'Ac') to protect women’s health.” The  brief asked the court to “not allow Congress to force a moral consensus where there is none, but rather to let the individual women who face the agonizing decision of whether to terminate a pregnancy or risk their own health do so legally, in consultation and accordance with their own conscience and faith.”

Other groups submitting the brief included the American Jewish Committee, Americans for Religious Liberty, the Anti-Defamation League, Disciples for Choice, Disciples Justice Action Network, Episcopal Women’s Caucus, Hadassah-the Women’s Zionist Organization of America, Jewish Reconstructionist Federation, Justice and Witness Ministries of the United Church of Christ, Methodist Federation for Social Action, National Council of Jewish Women, The Rabbinical Assembly, Union for Reform Judaism, United Synagogue of Conservative Judaism, and Women of Reform Judaism.

Read RCRC's brief

Scheidler v. National Organization for Women and Operation Rescue v. National Organization for Women
The Religious Coalition for Reproductive Choice filed a friend of the court brief in support of the National Organization for Women (NOW)'s case. We argued that free, peaceful and unrestricted debate on the issue of abortion is a fundamental aspect of religious and constitutional liberty and cannot flourish in a society that permits organizations to engage in violence, threats and fear without restraint.

In its 8-0 ruling today against NOW, the Supreme Court did not recognize that this case is not only about the safety of women’s clinics, it is also about the safety of churches that take pro-choice positions and have pro-choice clergy and the safety of homes of clergy who are pro-choice. Clergy are pro-choice religious leaders are also victims of the continuing pattern of crimes and physical attacks against patients, doctors, and clinic staff. Those who use threats and violence against clinics also do so against clergy and churches whose views they do not like. The court’s decision in this case leaves these individuals without protection. We believe the religious freedom issue has not been addressed or even understood in this decision.
February 28, 2006
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Ayotte v. Planned Parenthood of Northern New England: Protecting Women's Health and Safety
Statement of Rev. Carlton W. Veazey, President and CEO
Religious Coalition for Reproductive Choice
January 18, 2006
The unanimous decision by the U.S. Supreme Court in Ayotte v. Planned Parenthood of Northern New England, et al, affirms the view of many religions that abortion laws must protect women’s health and safety.

Equally important, the decision makes a powerful statement about the often harsh and potentially harmful parental involvement requirements that have been enacted in 44 states. The decision recognizes that:

“It is the sad reality, however, that young women sometimes lack a loving and supportive parent capable of aiding them ‘to exercise their rights wisely.’” (Footnote 2)

The “Religious” Right crowd should take heed of this statement. Their ideological and callous views about parental rights fail to recognize the reality of some teens’ family situation. For years, data has shown that at least 60% of teens do involve their parent or parents in a decision about abortion and that many of the teens who do not involve their parents have good reason, including fear of further abuse and of being forced to leave their home.

Forty-one religious and religiously affiliated organizations joined in the RCRC friend of the court brief in this case, filed by the law firm of Covington & Burling. The brief recognized that, while parental involvement is important, state-mandated communication has resulted in harm to young women in some families and strongly urged that parental guidance be sought voluntarily.

The case began as a challenge to a New Hampshire law that prevents doctors from performing an abortion for a teenager under the age of 18 until 48 hours after a parent has been notified. Contrary to Supreme Court precedent, the law did not contain an exception to protect a pregnant teenager’s health in a medical emergency. The lower courts struck down the law because of this omission. In today’s ruling, the Supreme Court asked the federal appeals court to consider whether the New Hampshire legislature intended that the statute would be susceptible to the remedy of invalidation only to the extent that it fails to provide a required medical emergency exception, or whether it would have preferred not statute at all to one enjoined in this fashion.

RCRC Friend of the Court Brief
The religious organizations’ brief in Ayotte v. Planned Parenthood of Northern New England explains that the law unconstitutionally threatens the health and lives of women and undermines their ability to choose an abortion in accordance with religious faiths that place great value on women’s lives and health.

Religions believe life is sacred, and a gift from God, and that it is a moral responsibility to promote and protect health and well-being, especially of those who are the most vulnerable. The New Hampshire Parental Notification Prior to Abortion Act unconstitutionally restricts the ability of a minor who may not be able to seek parental involvement or obtain a judicial bypass to protect her health and even her life when they are threatened by a pregnancy.

The organizations signing the brief are from Protestant, Jewish, Unitarian Universalist, and humanist traditions. Pointing out that the Supreme Court has repeatedly recognized a religious component of the rights of privacy and of reproductive choice, they argue that women must be able to follow their religious beliefs and conscience in making personal moral decisions about continuing a pregnancy.

"The religious component of the rights of privacy and of reproductive choice have been repeatedly recognized in this Court’s opinions, including in cases as old as Pierce v. Society of Sisters, 268 U.S. 510 (1925), and as recent as Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). Many Americans reflect upon their religious beliefs and moral principles when making important private decisions about family, marriage, and procreation. The variety of religious teachings and beliefs about abortion underscores the importance of maintaining a private sphere – free from undue government interference – in which women can make choices to protect their own lives and health in accordance with their faiths and their consciences. This private sphere extends to minor women who are faced with pregnancies that threaten their lives and health. Although amici support and encourage parental guidance in young women’s major life decisions, including whether to end a pregnancy, they recognize that state-mandated parental involvement can sometimes harm the minor, such as where the family is dysfunctional or where an emergency medical situation requires an immediate abortion. The Constitution protects minors from such threats to their lives, health, and religious beliefs."

All the organizations submitting the brief want teenagers to have the full support of their families at such a difficult time. But they recognize that some teens may not be able to talk to their parents or find a court and a judge who can give them permission for an emergency abortion. In such cases, doctors must be able to provide necessary treatment.

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Signatories of RCRC Brief
American Ethical Union
American Humanist Association
American Jewish Committee
Americans for Religious Liberty
Anti-Defamation League of B'nai B'rith
Disciples for Choice
Disciples Justice Action Network
Episcopal Women's Caucus
Jewish Reconstructionist Federation
Jewish Women International
Lutheran Women's Caucus
Methodist Federation for Social Action
NA’AMAT USA
National Council of Jewish Women, Inc.
Religious Consultation on Population, Reproductive Health and Ethics
Religious Institute on Sexual Morality, Justice and Healing
Union for Reform Judaism
Unitarian Universalist Association of Congregations
Unitarian Universalist Women's Federation
United Church of Christ Justice and Witness Ministries
United Synagogue of Conservative Judaism
Women of Reform Judaism
Women’s Alliance for Theology, Ethics and Ritual
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