NARAL Pro-Choice Missouri : Issues : Fact Sheets

Until the Supreme Court decided Griswold v. Connecticut in 1965 (and its related case, Eisenstadt v. Baird), states could and did outlaw contraception or restrict its legal use to married couples. Until Roe v. Wade was made the law of the land in 1973, states could and did outlaw all abortions, most often providing for felony convictions of the doctors who performed them. In Georgia, abortion was allowed only in cases of rape, severe fetal anomaly, or the substantial possibility of severe maternal injury or death if the pregnancy were carried to term—and even then, the woman (who had to be a citizen of Georgia) had to petition a panel of three doctors and a hospital review committee for permission. (The Supreme Court struck Georgia’s law in Doe v. Bolton, Roe’s forgotten companion.)

Roe simply effects a compromise between a woman’s right to make important reproductive decisions and the state’s legitimate interest in nascent human life. Roe and its progeny establish the workable rule that a woman may decide to terminate her pregnancy at any point prior to fetal viability, after which time the state may ban abortion except where it is necessary to protect the woman’s life or health.

Ever since Roe was decided, socially conservative forces have organized against it. They have had remarkable success with incrementally chipping away at Roe through making laws that single out abortion providers for more onerous regulation than other medical providers (Targeted Regulation of Abortion Providers, or “TRAP” laws). As a consequence of a concerted effort to prevail in the state legislatures with abortion restrictions, fully 87% of the counties in the United States lack an abortion provider. The legislative strategy of the anti-choice lobby has been complemented by an aggressive drive to take over the courts, as well, including the Supreme Court.

On April 18, 2007, the Supreme Court decided Gonzales v. Carhart, which upheld the federal law banning the intact dilation and extraction abortion procedure, referred to by anti-choice activists by the incendiary term “partial-birth abortion.” The case reversed a precedent set just a few years before that held any law restricting abortion that did not contain an exception for the health of the woman unconstitutional. Despite the lack of a health exception for the woman, the Court upheld the federal ban, allowing Gonzales to pass into the law books as the first case in the 35 years since Roe was decided to criminalize a specific abortion procedure.

The day after Gonzales was handed down, Senators Boxer, Clinton, Feinstein, Mikulski and others sponsored FOCA, which has not yet been reintroduced before the new Congress. FOCA would, very simply put, codify the letter and spirit of Roe by:

(1) Making it the supreme law of the land that no state may forbid a woman from having an abortion prior to fetal viability;

(2) Making it the supreme law of the land that no state may enact laws forbidding abortion after fetal viability that do not contain exceptions for the life or health of the woman;

(3) Prohibiting the states from interfering with a woman’s right to choose to choose to bear a child;

(4) Prohibiting the states from discriminating against the exercise of these aforementioned rights, and discriminating in the “regulation or provision of benefits, facilities, services, or information.”[1]

[1] It is this provision that some argue means that public funding of abortions for poor women would be required, contrary to existing federal law, that religiously affiliated hospitals and staff would be forced to participate in abortions even if contrary to their moral views, and that options counseling would be required of all medical institutions, including religiously affiliated ones. However, it should be noted that both the Hyde and the Church Amendments (regarding public funding of abortion for indigent women and right of refusal for abortion care, respectively) are in place. Options counseling is the law only for recipients of Title X federal funds. Most crucially, the provision numbered (4) in this summary above is preceded by a very important caveat: “A government may not.” Thus, the nondiscrimination provision does not apply globally to private actors such as individual physicians, but is in play only where a sufficient nexus to state action exists. The courts have routinely held that such an attenuated nexus as, e.g., conveying a license to do business is not sufficient to constitute state action. This provision does mean that many TRAP laws would be vulnerable to attack in the courts as discriminatory regulation of benefits, services or facilities.