The Current Legal Status of Abortion

I wish to post two posts about abortion, just like I did about Gay Marriage. The first post will be merely giving the legal status to those who do not fully understand the legal state of abortion in our country. The second post, which I will do in a few days, will be my observations of the true nature of the issue from a Christian perspective. I hope this will be insightful to those who care about our woman and children in this nation and who want to understand abortion in a more holistic way.

In 1973, Roe vs. Wade was a case decided by the Supreme Court which would effectively legalize abortion in every state. 

Before Roe vs. Wade abortion was illegal in 30 states; and legal in the other 20 states. Of these 20 states Alabama only allowed it in cases of rape, in 2 other states it was only allowed if the woman’s health was endangered by the pregnancy, and in 13 states it was allowed for rape, health, and other issues such as incest. Only 4 states allowed it for other reasons than those mentioned above (Washington, Alaska, Hawaii, and New York). 

Women who wanted abortions legally would travel to these states where they could be performed, but many were doing illegal abortions by illegal procedures not sanctioned by the law. 

All this changed when the Supreme Court decided for Roe vs. Wade. 

The court had to deal with a few issues in this case:

1. Did making abortion illegal impinge on a woman’s 14th amendment right to liberty? The 14th amendment states that : “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.” 

The question was one of a woman’s liberty. Is getting an abortion part of a woman’s liberty? This was the crux of the issue. If the state government tells the woman not to get an abortion is this state controlling what a woman can do with her body and her own private affairs?

2. This one is tied into number 1. Does the government have a compelling state interest to overrule a person’s right to liberty in issues concerning abortion. This actually speaks to the 14th amendment mentioned above. See at the end of the ammendment where it says: “without due process”? The state can take the life, property, and liberty of a person, but only by due process of the law. The question is, even if an abortion falls within a woman’s right to liberty since it concerns her own body, could the state still take away that right due to the nature of abortion. 

So the question here is: Is abortion an act that the state can justifiably ban either completely or limitedly?

3. This one is tied into number 2. Does a physician have the right to practice freely if the state has no just cause to deny liberty based on due process?

Let me explain this by trying to tie all three together. What is basically being asked is this: Is aborition something that chiefly concerns a woman’s liberty concerning her own health and body? If it does concern a woman’s liberty, can the state prove that it can justifiably deprive the woman of liberty in this issue by showing that abortion violates other laws? And if the state cannot prove that it does not have the right to deny the woman’s right to liberty, then can the state rightfully stop a doctor for doing a practice that is protected by the constitution?

Now it must be understood that the Supreme Court did not simply say “yes” or “no” to all of this but it gave responses with qualifications. 

First it decided that abortion is something that is the right for a woman to do in her liberty. The Court decided that a woman’s pregnancy is private for the woman, and since it is private then she has the liberty to terminate, since the 14th amendment is broad enough to allow for such an interpretaion of liberty. Thus, the woman has a right to privacy concerning her own pregnancy and so she has liberty in matters concerning her privacy. 

Since it was decided that a woman’s right to privacy gave her the liberty to terminate her own pregnancy, then the court held that a state could not forbid a doctor from performing an abortion since abortions were protected under the 14th amendment. 

It was concerning the second question where the court made some qualifications. The court did have trouble determing limits for abortion. They concluded that the state had a right to be concerned with two different aspects: a woman’s health and protecting the fetus which the court saw as potential life. Thus, the court decided that during the first trimester an abortion is allowed, and so in the first trimester the decision is up to the woman and her physician and the government may not intervene. 

However after the first trimester the Court allowed the state to prohibit an abortion, if the State can prove the pregnancy is dangerous to the woman’s health. However, a State cannot stop a woman from having an abortion at any point in her pregnancy if her health is not in danger. 

So to sum up the court’s conclusions: A woman has the right to privacy concerning her own pregnancy within the first trimester of her pregnancy. Thus, she has the liberty to have an abortion within the first trimester and the decision is up to her and her physician. She does not need any other reason except that she does not want the child. The state can only intervene if it can be proved that an abortion at this state would harm the woman more than a full term pregnancy. 

After the first trimester, state’s are allowed to create laws that limit abortion since after the first trimester the process becomes more dangerous to the mother and because the state has the right to protect the child after the first trimester.

However, if it can be proved that the pregnancy is dangerous to the woman’s health, an abortion cannot be forbid by any state at any time during the pregnancy. Included in the issue of woman’s health is psychological reasons. This means that even late in a pregnancy a state cannot forbid a woman from getting an abortion if it is determined that the pregnancy is psychologically harming the woman. Thus, a woman’s health is the primary concern in pregnancy, and sometimes the only concern. 

One last note, because this is where it gets very controversial. The court allowed states to make laws concerning abortion after the first trimester, however it also made it clear that the state would have to prove cause for any laws that were created and that ultimately the burden falls on the state to prove after the first trimester that the abortion would  be to harmful on the mother or the baby.

It must also be understood that a more recent case in 1992 upheld Roe vs. Wade in agreeing that abortion is protected by the 14th Amendment under a woman’s right to liberty. However, it did away with the language of trimester and changed the language to simply “viability (the child is able to survive on its own outside the womb).” So all the above mentions of the first trimester can now be changed to mean viability of the fetus. This means that no abortion can be banned by the states before the fetus is viable. But after viability the state is allowed to make laws concerning abortion. So how is viablity determined? Viability is determined by the current medical opinion, and more particularly the woman’s personal physician. 

One more important federal move was made concerning abortion in 2003 when a certain bill was passed banning partial-birth abortions. The bill was attempted in the 90’s, but President Clinton would not sign the bill to make it law. President Bush signed the bill, which allows an exception for a woman’s health. It must be understood that the law says nothing concerning viability. The law is not banning abortion at certain stages of the pregnancy. What it is banning is a certain method of abortion which can be read about here:


Though some states are more strict than others in their law and enforcement of their law, all must adhere to the above, or they are held as violating the woman’s right to liberty. Any law that a State passes that does not follow the guidelines of the Court’s decision is likely to be struck down as unconstitutional.

Most recently North Dakota passed the strictest state law when it banned abortions once a heartbeat is detectable, which could be as soon as 6 weeks. This law will have to go the Supreme Court once it is challenged by abortion interest groups because this goes against the ruling of the Court that an abortion is allowable before viability. This will force the Court to reexamine their position and either uphold their current stance or change it. 

There is one more related issue I wish to address in order to show how confused America is on this subject. 

The issue is involving a Federal law called Unborn Victims of Violence Act or also known as “Laci and Conner’s Law.” According to this law, a child that is still in the womb of its mother is a legal victim if any crime is committed againt the child. For example, if a pregnant woman is murdered, the criminal can be tried for double homicide, since he murdered both the woman and the child.

The murder does not even have to take place at a late stage in the abortion for it to be considered murder. In fact the wording of the law defining what a child in the womb is goes as such: 

“The term ‘unborn child/ means a child in utero, and the term ‘child in utero’ or ‘child, who is in utero’ means a member of the species homo sapiens, at any stage of development, who is carried in the womb.”

Thus, even if the woman is only 8 weeks pregnant, if she is murdered the murderer could be tried for taking the life of the unborn baby as well. It must be noted that this law is a federal law, which means it must be a federal crime for this law to be valid. Yet, 36 states currently accept the law and have made it a law in their own state, leaving only 14 that have not made the law a state law as well. 

Now think about this. Our government is saying that a fetus is considered a living human being at any state during pregnancy. However, when it comes to abortion, the fetus is not a living human being automatically, which allows the woman to exercise her rights of liberty to abort the child, since in doing so she is not taking a life, but merely terminating her own pregnancy. 

If you really read this closely you’ll see that the fundamental ruling of the United States up to now is that a baby is alive in the womb only if the woman decides it is alive. If a woman wants the baby, then the baby is alive and it is a crime to take its life. If a woman doesn’t want the baby, then the baby is only a fetus, and she has the right to terminate the pregnancy if she wants to. Ultimately, the woman’s will is god, for at the woman’s decision the fetus legally becomes a living being or at her decision it becomes merely tissue to be extracted for any reason the woman can give.

In the next post on this issue, I want to explore what lies behind the laws on abortion, and how abortion is merely a symptom of a deeper problem in our society that threatens so many things we and all healthy humans have always held as very dear.


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