Paul Horton: Family Law and Abortion

Abortion is one of the most divisive and controversial legal subjects in the United States, where federal law has protected a woman’s right to choose an abortion since the U.S. Supreme Court’s Roe v. Wade decision in 1973. Some states have limited access to abortion through legislation and other means, as pressure from both sides of the debate have made abortion a highly volatile area of law. This section includes summaries of abortion law throughout U.S. history, specific abortion-related laws in various states, a detailed account of Roe v. Wade, an explanation of parental consent laws, and related resources.

Roe v. Wade

Abortion in the United States can’t be discussed long before mention is made of the landmark 1973 Supreme Court decision Roe v. Wade. This case was the first in U.S. history that established a constitutional right to an abortion. An unmarried pregnant Texas woman sought an abortion, but was denied under Texas law. The law was challenged in federal court, which determined that the constitutional right to privacy prevented states from banning abortion, though the court held that states have an interest in ensuring the safety and well-being of pregnant women and potential human life. The court further held that a fetus is not a person protected by the Constitution.

The Supreme Court, looking to balance the rights of the individual against the state interest in protecting human life, divided pregnancy into three 12-week trimesters. The Court provided for different treatment depending on the stage of pregnancy:

During the first trimester a state cannot regulate abortion beyond requiring that the procedure be performed by a licensed doctor in medically safe conditions.
During the second trimester a state may regulate abortion if the regulations are reasonably related to the health of the pregnant woman.
During the third trimester a state’s interest in protecting the potential human right outweighs the woman’s right to privacy and may prohibit abortions unless necessary to save the life or health of the mother.

Abortion and Family Law

Although Roe v. Wade remains the landmark case on abortion it has subsequently come under scrutiny and lawmakers and abortion opponents have pushed for stricter abortion laws over the past several decades. Although Roe continues to stand there are increasingly conditions placed upon women seeking to access abortion that have chipped away at the rights indicated by Roe.

Common restrictions upon abortion rights include requirements that place social pressure on pregnant women. Counseling requirements, waiting periods, required viewing of ultrasounds, and parental involvement in abortions sought by minors place pressure on pregnant women not to complete an abortion. Bans on “partial-birth” abortions, prohibitions on public funding, exemption from private insurance coverage, doctor or hospital requirements, and gestational limits erect procedural obstacles to accessing abortion.

Both advocates and opponents of abortion continue to fundraise, lobby, and litigate the issue. As such, further legislation and litigation are likely to arise in coming years. Since laws among states currently vary significantly, and because changes in the law are likely, it is important to check your state’s current abortion laws for specific and timely information.

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