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Supreme Court, have superseded states as the driving force in crafting abortion policy.

Wade , which granted women the constitutional right to terminate their pregnancies, state legislatures and governors have encountered a number of limitations in the ways they can regulate abortion. Prior to Roe , and throughout much of American history, states banned or severely restricted abortion. State abortion laws, many of which were enacted in the 19th and early 20th centuries, often targeted those who performed abortions rather than the pregnant women who sought to have the procedure performed.

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The aim of many of these laws was to protect pregnant women and their fetuses from injury, not to prosecute them. Roe v. Wade at 40 A look at U. Public Opinion on Abortion Slideshow A series of graphics that illustrate how opinion differs among various demographic groups.

Abortion and the Supreme Court The constitutional dimensions of the abortion debate.

In , Colorado became the first state to greatly broaden the circumstances under which a woman could legally receive an abortion. By , 11 additional states had made similar changes to their abortion laws and four other states — New York, Washington, Hawaii and Alaska — had completely decriminalized abortion during the early stages of pregnancy. Meanwhile, abortion rights advocates launched a series of court challenges to many older state abortion laws, often arguing that these statutes were overly vague or that they violated the right to privacy or the right to equal protection under the law guaranteed under the U.

State and lower federal courts usually rejected these arguments. In the early s, the Supreme Court agreed to hear two cases challenging laws that restricted abortion. Wade , the high court considered a challenge to a Texas law outlawing abortion in all cases except those in which the life of the mother was at risk. In both cases, lower federal courts had declared the statutes unconstitutional, ruling that denying a woman the right to decide whether to carry a pregnancy to term violated basic privacy and liberty interests contained in the Constitution.

Connecticut In Griswold , the court had struck down a Connecticut anti-contraception law on the ground that it intruded on the right to marital privacy.

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Rethinking Abortion

To answer this question, Blackmun created a three-tiered legal framework, based on the nine-month period of pregnancy, which gave the state greater interest and regulatory latitude in each successive tier. Legal Limits : State can only require basic health safeguards and cannot limit access to abortion. Time Period Covered : End of first trimester to point of fetal viability. During this period, the state can only impose basic health safeguards — such as requiring that the procedure be performed by a qualified health professional — and can in no way limit access to abortion.

At this point, Blackmun determined, the state has an interest in protecting maternal health and can regulate abortion only to protect the health of the mother. In other words, regulations have to be directed toward ensuring maternal health and cannot be aimed at protecting a fetus or limiting access to abortion services.


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Thus, a state law requiring a doctor to describe to a woman seeking an abortion the risks associated with the procedure before receiving her informed consent would be constitutional — as long as the requirement aimed to protect maternal health and was not created to dissuade a woman from terminating her pregnancy. In Doe , the same seven-justice majority largely restated and fleshed out its ruling in Roe. Roe proved to be one of the most significant decisions ever handed down by the Supreme Court and is perhaps rivaled in public attention in the 20th century only by the landmark school desegregation case, Brown v.

Board of Education. Unlike Brown , however, Roe has remained controversial in the decades since it was decided. In the years immediately following Roe , the Supreme Court grappled with a host of issues that arose from the decision. These included questions about laws requiring informed consent, parental consent, spousal consent and waiting periods for women seeking abortions. In these cases, the court also affirmed Roe and its three-tiered framework.

The first small crack in Roe jurisprudence came in when the high court decided Webster v. Reproductive Health Services. This case concerned a Missouri statute that barred public facilities from being used to conduct abortions and prohibited public health workers from performing abortions unless the life of the mother was at risk.

Abortion should remain legal, Graber argues, because statutory bans on abortion have a history of being enforced in ways that intentionally discriminate against poor persons and persons of color. In the years before Roe, the same law enforcement officials who routinely ignored and sometimes assisted those physicians seeking to terminate pregnancies for their private patients too often prevented competent abortionists from offering the same services to the general public.

This double standard violated the fundamental human and constitutional right of equal justice under law, a right that remains a major concern of the equal protection clause of the Fourteenth Amendment. Its combination of concrete analysis and theoretical insights should provide for a productive discussion.

Smith, The Law and Politics Book Review "In this extremely interesting and well-written book, Mark Graber maintains that the abortion debate has bogged down. He wants to try a new approach, one that is both pragmatic and, he hopes, likely to appeal to those Americans who, like him, believe that abortion is morally wrong, but should be legal.

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