Questioning of the “Right to Abortion” in the United States (2)

May 11, 2022

The first part of this article recounted the establishment of case law imposing abortion on all the states within the United States, through the Supreme Court's May 22, 1973 decision Roe vs. Wade. This second part examines the result produced and its evolution in subsequent years.

The Supreme Court divided the law concerning pregnancy into three trimesters: no state could restrict access to abortion in the first trimester; in the second, laws could only protect a woman’s health; and in the third trimester, states could regulate abortion as they saw fit, provided the life of the woman was protected.

However, even after May 22, 1973, the majority of hospitals refused to perform abortions. This led “pro-choice” - pro-abortion - forces such as various women's movements and Planned Parenthood to open clinics across the country to perform abortions and provide means of contraception.

At that time, abortion was covered by the Medicaid program, which ensured access to care for the poorest, but in 1976, through the Hyde amendment, Congress prohibited the use of federal funds to finance abortion, which led to a certain drop in this crime. The Supreme Court approved the restrictions on Medicaid, agreeing that the state should favor birth.

Since 1973, many states have tried to restrict the jurisprudence of the Supreme Court. These actions mainly targeted women under the age of 18 by requiring parental authorization to have an abortion, but also seeking to impose a waiting period or mandatory ultrasounds to determine the stage of pregnancy.

Some states have required clinics specializing in the crime of abortion to fully comply with the medical standards required for any medico-surgical activity. Which turned out to be very effective.

In 1992, a new Supreme Court ruling, in Planned Parenthood of Southeastern Pennsylvania v. Casey, prompted a reconsideration of Roe. Despite the upholding of this last judgment, several important decisions on abortion were reversed or overruled.

The Casey decision abolished Roe's system of quarters, and replaced it with a new rule described by some as being “of uncertain origin,” under which states have been prohibited from adopting any regulation imposing an “excessive burden” on a woman's right to abortion. But no criteria were given to differentiate between what was “due” and what was “excessive.”

In general, political opinion on abortion is divided according to the parties: the Republicans being against it and the Democrats being in favor of it. But there are exceptions on both sides. Further, some Democrats prefer to focus on cases involving rape. Among the Democratic presidential candidates, many voted for the Hyde Amendment.

After the Roe ruling, states passed laws that were sanctioned by the Supreme Court, in the name of jurisprudence. But, since the appointment of Brett Kavanaugh to the Supreme Court in 2018, and of Amy Coney Barret in 2020, the majority of the judges are opposed to abortion. States have therefore begun to prohibit abortion within certain limits, with some success.

For example, in Texas, where regulations have caused eighty-two family planning clinics to close since 2011, contraceptive use has dropped, and pregnancies have increased by 27% compared to places that still have access to family planning.

An additional element enters the debate: the country's birth rate has reached an record low of 1.72 births per woman of child bearing age. This is causing concern in various political and social groups. Hence the demand for a pronatalist policy.

Since the beginning of the year, several laws – in Mississippi or Texas for example – have allowed progress, because, until now, the Supreme Court, to which it has been referred, has not yet ruled. It is precisely the draft judgment under discussion on the Mississippi law that was obtained and disseminated by Politico, which is producing the current agitation.