Abortion law

“ We have seen that unjustifiable abortion, alike as concerns the infant and society, is a crime second to none; that it abounds, and is frightfully on the increase; and that on medical grounds alone, mistaken and exploded, a misconception of the time at which man becomes a living being, the law fails to afford to infants and to society that protection which they have an absolute right to receive at its hands, and for the absence of which every individual who has, or can exert, any influence in the matter, is rendered so far responsible. ”

“ In several States, a seemingly unwise discrimination has been made by the law between the various methods employed. Thus in Michigan, Mississippi, Arkansas, and Minnesota, a special statute has been enacted for cases where the crime is effected “by any injury to the mother, which would be murder if it resulted in the death of such mother.” We have seen that the surest and most efficient means of producing abortion are those where no injury whatever is necessarily inflicted upon the mother. Such statutes as the above, therefore, actually tend to encourage the crime. ”

“ It thus appears that the mansion of constitutionalized abortion law, constructed overnight in Roe v. Wade, must be disassembled doorjamb by doorjamb, and never entirely brought down, no matter how wrong it may be. ”

“ Though abortion is conduct, it does not follow that the State is entitled to proscribe it in all instances. That is because the liberty of the woman is at stake in a sense unique to the human condition and so unique to the law. The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear. ”

“ In my view, a State may not expand indefinitely the scope of its abortion regulations by creating interests in fetal life that are limited solely by reference to the decisional law of this Court. Such a statutory scheme, whose scope is dependent on the uncertain and disputed limits of our holdings, will have the unconstitutional effect of chilling the exercise of a woman's right to terminate a pregnancy and of burdening the freedom of health professionals to provide abortion services. ”

“ Therapeutic abortions are resorted to when the patient’s condition is so grave that it is apparently necessary to empty the uterus in order to save her life. Such a condition may exist, for example, when pregnancy is complicated by pulmonary tuberculosis, heart disease, toxemia, hemorrhage or some condition which is inherent to pregnancy. An abortion induced under these circumstances is countenanced by law, as it is performed to prevent the loss of life from disease; but an abortion is not legal if brought on to save the woman from suicide, because of her unwillingness to become a mother. ”

“ An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.
(b) We reject the rigid trimester framework of Roe v. Wade. To promote the State's profound interest in potential life, throughout pregnancy the State may take measures to ensure that the woman's choice is informed, and measures designed to advance this interest will not be invalidated as long as their purpose is to persuade the woman to choose childbirth over abortion. ”

“ The Solicitor General next suggests that history supports an abortion right because the common law's failure to criminalize abortion before quickening means that "at the Founding and for decades thereafter, women generally could terminate a pregnancy, at least in its early stages." ”

“ The Maryland law, for example, grants the right to induce abortion whenever two or more physicians see the patient and agree that "no other method will secure the safety of the mother." Similar rules are prescribed by the statutes of other States, but none concedes the right of abortion as a means of keeping the woman from suicide. ”

“ When Governor of Arkansas, I signed a bill into law that barred third-trimester abortions, with an appropriate exception for life or health. I would do so again, but only if the bill contains an exception for the rare cases where a woman faces death or serious injury. ”

“ We begin with the common law, under which abortion was a crime at least after "quickening"—i.e., the first felt movement of the fetus in the womb, which usually occurs between the 16th and 18th week of pregnancy. ”

“ In Massachusetts, case law held that abortion was allowed when, according to the judgment of physicians in the relevant community, the procedure was necessary to preserve the woman's life or her physical or emotional health. ”

“ In sum, using this law some present prosecutors and future Attorneys General may choose to pursue physicians who use D&E procedures, the most commonly used method for performing previability second trimester abortions. All those who perform abortion procedures using that method must fear prosecution, conviction, and imprisonment. The result is an undue burden upon a woman's right to make an abortion decision. We must consequently find the statute unconstitutional. ”

“ He has not said in specific terms that the pregnant woman has the right to an abortion, whether therapeutic or otherwise. In my view, however, his whole position depends for its validity upon that proposition and that interference with the right constitutes an infringement of her right to security of the person. It is said that a law which forces a woman to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations interferes with security of her person. ”

“ With all due respect, I think that the Court must tackle the primary issue first. A consideration as to whether or not the procedural requirements for obtaining or performing an abortion comport with fundamental justice is purely academic if such requirements cannot as a constitutional matter be imposed at all. If a pregnant
woman cannot, as a constitutional matter, be compelled by law to carry the foetus to term against her will, a review of the procedural requirements by which she may be compelled to do so seems pointless. ”

“ If our previous assumptions of the actual character of criminal abortion be granted, and we believe that they have been proved to a demonstration, it must follow from the subsequent remarks that the common law, both in theory and in practice, is insufficient to control the crime; that in many States of this Union, the statutory laws do not recognize its true nature; that they draw unwarrantable distinctions of guilt ”

“ In a word, then, in the sight of the common law, and, in most cases of the statutory law, also, the crime of abortion, properly considered, does not exist; the law discussing and punishing a wholly supposititious offence, which not only does not exist, but the very idea of whose existence is simply absurd. ”

“ In the same belief, strengthened by nearly three years careful reflection, that criminal abortion can, to a great extent, be controlled by law, if but the community so will, we proceed to the last division of our subject, and discuss the duty of the medical profession toward the ultimate suppression of the crime. ”

“ The act has no separate clause for negligent abortion and attempted abortion. Therefore, criminal law does not regard unborn child as part of body of pregnant woman, and abortion behavior can not be regarded as comprising a charge of injuring pregnant woman regardless of the fact that abortion behavior encroach the function of baby nurturing and giving birth to a child. ”

“ That the prevalence of abortion is in great measure owing to ignorance of guilt, on the part of the community at large, we have shown. We now assert that its futile prohibition by the law, its toleration, are plainly in consequence of similar ignorance on the part of legislators, and of officers of justice. ”

“ In the following States, Rhode Island, New Jersey, Pennsylvania, Delaware, Maryland, North Carolina, South Carolina, Georgia, Florida, Kentucky, Tennessee, Iowa, and the District of Columbia, there appear to exist no statutes against abortion, and the crime can only be reached at common law and by the rulings of the courts. ”

“ In no State save Virginia is its justifiability for this purpose yet recognized by the statute law.
By the codes of most States, the mother is not punishable, however directly implicated in the crime. New Hampshire, New York, and Wisconsin, are apparently the only exceptions to this statement; the last two of them also not requiring proof of pregnancy for conviction, while by implication New Hampshire does.
By the statute of Indiana, all other women equally with the mother would seem released from prosecution, the word “he” being used of the persons indictable. ”

“ II For today, at least, the law of abortion stands undisturbed. For today, the women of this Nation still retain the liberty to control their destinies. But the signs are evident and very ominous, and a chill wind blows. ”

“ Any medical man who gives even the most harmless medicine where he suspects the possibility of pregnancy may render himself liable to grave suspicion should the woman abort. [43]
In medicine, an abortion is said to occur when the fœtus is expelled before the sixth month; after that it is premature birth. In law, however, any expulsion of the contents of the uterus before the full time is an abortion or miscarriage. ”

“ While there are cases where even the law recognizes an abortion as justifiable if recommended by a physician, I assert that the hundreds of thousands of abortions performed in America each year are a disgrace to civilization. ”

“ When, in an attempt to procure an abortion, there is an evident intent to produce the death of the mother, and her death does actually occur, such attempt becomes murder at common law; [228] but when nothing more is intended than to commit the misdemeanor, it is only manslaughter, [229] being an instance of homicide from individual malice toward a third party, when the fatal blow falls on the deceased by mistake. ”

“ Regardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability. (e) We also reaffirm Roe's holding that "subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." ”

“ I In the almost 30 years since Roe, this Court has never described the various methods of aborting a second- or third-trimester fetus. From reading the majority's sanitized description, one would think that this case involves state regulation of a widely accepted routine medical procedure. Nothing could be further from the truth. The most widely used method of abortion during this stage of pregnancy is so gruesome that its use can be traumatic even for the physicians and medical staff who perform it. ”

“ After the first trimester, the compelling state interest in the mother's health permits it to adopt reasonable regulations in order to promote safe abortions -- but requiring abortions to be performed in hospitals, or only after approval of another doctor or committee in addition to the woman's physician, is impermissible, as is requiring that the abortion procedure employ a technique that, however preferable from a medical perspective, is not widely available. ”

“ An undue burden will generally be found "in situations involving absolute obstacles or severe limitations on the abortion decision," not wherever a state regulation "may 'inhibit' abortions to some degree." ”

“ The Act's ban on abortions that involve partial delivery of a living fetus furthers the Government's objectives. No one would dispute that, for many, D&E is a procedure itself laden with the power to devalue human life. Congress could nonetheless conclude that the type of abortion proscribed by the Act requires specific regulation because it implicates additional ethical and moral concerns that justify a special prohibition. ”

“ They apply more especially to the early months of pregnancy, where it is always impossible to know its existence; and were direct or probable emmenagogues, or instrumental interference, to be here allowed, criminal abortion might be always induced before quickening, sanctioned and permitted by the rules of medicine. To justify abortion, life must certainly or very probably be endangered, not possibly merely, which is true in every pregnancy, and might be alleged at every trial for the crime. ”

“ The common claim before us is that, for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure. ”