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Issues in Brief

Late-Term Abortions: Legal Considerations

There have been many efforts, in Congress and the state legislatures, to overturn the two Supreme Court decisions of January 22, 1973, that made abortion legal under most conditions throughout the United States. Over the 10 years following Roe v. Wade and Doe v. Bolton, many attempts were made to overturn the decisions in their entirety through a constitutional amendment; these failed conclusively in Congress in 1983.

Some state legislatures have tried, and are still trying, to whittle down the scope of the decisions and to limit the availability of abortion services. They have been successful in some of these attempts, most notably in limiting minors' access to abortion services, barring the use of public facilities for abortion and prohibiting the use of Medicaid funds to pay for abortions obtained by indigent women. Many other challenges, however, have been rejected.

Most recently, in 1995, bills were introduced in the Ohio legislature and in the U. S. Congress to ban a specific surgical method of late abortion called intact dilatation and extraction (D&X); opponents dubbed the procedure "partial-birth" abortion. Since then, legislation has been introduced in several states and adopted in three, including Ohio. All three states made exceptions to the ban when the woman's life was at stake and when some other dire circumstances prevailed. Nevertheless, the Ohio statute (which required the physician to prove "beyond a reasonable doubt" that any other method of abortion would increase the risk to the woman's health) was struck down as unconstitutional in 1996.

In Congress, the House passed a bill that made no exceptions to the ban, even for the life of the mother. The bill, subsequently amended in the Senate to include that exception, was vetoed by the president in the waning days of the 104th Congress. An attempt to override the veto passed the House but failed in the Senate.

The issue has not been laid to rest, however. What started as a debate to ban a particular method of abortion used to terminate some late-term pregnancies has spilled over into a controversy about the appropriateness of late-term abortions generally. Even before the opening of the 105th Congress, it was clear that these issues would reemerge in 1997, although the exact shape of the legislative proposals was not completely clear.

Senate Majority Leader Trent Lott (R-MS) had indicated that reconsideration of the D&X issue would be an early agenda item. In addition, Senate Minority Leader Thomas Daschle (D-SD), who voted to sustain the presidential veto in the fall of 1996, had also announced that he would introduce legislation to ban all postviability abortions except when necessary to save a woman's life or when her health would be severely impaired.

The issues are bound to resurface in the House also, with impetus this time coming from some prochoice members as well. In fact, in the final days of the 1996 congressional session, 16 prochoice members led by Representative Steny Hoyer (D-MD) had already introduced legislation to ban all abortions "after the fetus becomes viable" except in cases of life endangerment or to avert "serious adverse health consequences to the woman."

Elsewhere, in December 1996, the American Medical Association (AMA) was asked at its interim annual meeting to consider two resolutions regarding late-term abortion. One would have put the AMA on record as supporting a legal ban on the termination of pregnancies after 24 weeks of gestation except when the fetus is nonviable or when the life of the mother is in extreme danger. The second would have called upon the AMA to support the criminalization of D&X.

As an alternative, the Reference Committee recommended that the AMA reaffirm its prochoice policy and direct the Board of Trustees, in consultation with medical specialty groups such as the American College of Obstetricians and Gynecologists, to undertake a study of which late-term abortion techniques conform to the "standards of good medical practice" and to develop clinical practice guidelines for late-term pregnancy terminations. The Reference Committee report indicated that the substitute resolution was based on the premise of "the importance of the patient-physician relationship, and [stressed] the belief that governmental interference into the practice of medicine is inappropriate and ultimately harmful to the patient."

The House of Delegates voted overwhelmingly in favor of the substitute resolution.

As this Issues in Brief will show, the United States Supreme Court—in several decisions over a period of two decades since its landmark rulings—has repeatedly declared that whether a particular fetus is viable, which abortion method is appropriate to use in a specific instance and what constitutes a threat to a particular woman's life or health are determinations that may not be made by legislatures; they must be left to the attending physician.

The Supreme Court's 1973 Landmark Decisions

Prior to the Supreme Court decisions on January 22, 1973, the regulation of abortion had been a matter of state prerogative. By 1900, all states had prohibited the procedure except under the most extreme circumstances. However, between 1967 and 1973, 17 states either reformed their abortion statutes or repealed them outright, and similar legislation had been introduced in almost every state in the nation.

Nonetheless, most states still had limitations and restrictions of some kind, and by striking down those of Georgia in Doe v. Bolton and those of Texas in Roe v. Wade, the Supreme Court invalidated most of these restrictions.

In the more famous of the two decisions, Roe v. Wade, the Court declared that a woman has a constitutionally protected right, in consultation with her physician, to terminate a pregnancy free of state interference or intrusion, at least in the early stages of pregnancy (defined loosely as the first trimester of gestation). In the second trimester—or more specifically, prior to the viability of the fetus—the Court ruled that states could impose only those regulations that were reasonably related to the protection of the woman's health.

The Court acknowledged that after fetal viability, the state has acquired a "compelling" interest in "potential life" and could prohibit abortion altogether "except when it is necessary to preserve the life or health of the mother." Viability was set as the "compelling" point "because the fetus then presumably has the capacity for meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications."

The Court noted that "if an individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intra-professional, are available."

The Court pointedly observed that while it was reasonable and convenient in 1973 to refer to the point of viability as occurring at the beginning of the third trimester, potential medical advances made the timing of viability subject to change. Thus, in every instance, the determination of viability had to be made on a case-by-case basis by the attending physician.

Notably, the Court did not address the issue of fetal deformity and abnormality directly but rather subsumed it as one aspect of a pregnant woman's physical and mental health.

The Concept of Viability As Further Elaborated

In the years following Roe v. Wade, the Supreme Court clarified the physician's role in determining when a fetus is viable.

In Planned Parenthood of Central Missouri v. Danforth (1976), the Court declared, "The time when viability is achieved may vary with each pregnancy, and the determination of whether a particular fetus is viable is, and must be, a matter for the judgment of the responsible attending physician." The Court rejected as unconstitutional fixed gestational limits, saying that "it is not the proper function of the legislature or the courts to place viability, which is essentially a medical concept, at a specific point in the gestation period."

In Colautti v. Franklin (1979), a challenge to a Pennsylvania law, the Court reaffirmed the principles established in Roe and Danforth and elaborated on its views concerning viability: "Because this point [viability] may differ with each pregnancy, neither the legislature nor the courts may proclaim one of the elements entering into the ascertainment of viability—be it weeks of gestation or fetal weight or any other single factor—as the determinant of when the State has a compelling interest in the life or health of the fetus."

The Court thus upheld the lower court in saying that it is the professional responsibility of the physician to determine whether the fetus has the capacity for "meaningful life, not merely temporary survival."

The Court in Colautti voided a section of the statute requiring a doctor to abide by a prescribed standard of care if he determined the fetus was viable or if there was "sufficient reason to believe that the fetus may be viable" (emphasis added). It pointed out that "a physician determines whether or not a fetus is viable after considering a number of variables: the gestational age of the fetus, derived from the reported menstrual history of the woman; fetal weight, based on an inexact estimate of the size and condition of the uterus; the woman's general health and nutrition; the quality of the available medical facilities; and other factors."

The Court added, "Because of the number and the imprecision of these variables, the probability of any particular fetus' obtaining meaningful life outside the womb can be determined only with difficulty. Moreover, the record indicates that even if agreement may be reached on the probability of survival, different physicians equate viability with different probabilities of survival, and some physicians refuse to equate viability with any numerical probability at all. In the face of these uncertainties, it is not unlikely experts will disagree over whether a particular fetus in the second trimester has advanced to the stage of viability."

In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), the Supreme Court reaffirmed the essential tenets of Roe v. Wade, but did allow the states to impose some restrictions in early pregnancy as long as they are not "unduly burdensome." The

Court also noted that "some of Roe's factual assumptions" had been overtaken by time, pointing out that "advances in maternal health care allow for abortions safe to the mother later in pregnancy than was true in 1973...and advances in neonatal care have advanced viability to a point somewhat earlier."

But, the Court continued, these advances had "no bearing on the validity of Roe's central holding" that viability marks the point when the state's interest in the fetus becomes compelling. And, it added, "the soundness or unsoundness of that constitutional judgment in no sense turns on whether viability occurs at approximately 28 weeks, as was usual at the time of Roe, at 23 or 24 weeks, as it sometimes does today, or at some moment even slightly earlier in pregnancy, as it may if fetal respiratory capacity may be somehow enhanced in the future. Whenever it may occur, the attainment of viability may continue to serve as the critical fact."

Thus, the Supreme Court made it clear that the determination of viability, which depends on a variety of individual factors, must be left to the professional judgment of the individual physician. Provisions that establish a specific age—usually 20 or 24 weeks—after which abortion is prohibited (and, presumably, the fetus is considered de facto viable) are unconstitutional and unenforceable.

The Doctor's Discretion And the Health Exception


As a result of advances in modern medicine, rarely is a woman's life directly endangered by continuing a pregnancy, although the possibility does exist. It is more likely, however, that a pregnancy will present a threat to a woman's health. As with viabil

In United States v. Vuitch (1971), the Court upheld a District of Columbia abortion statute that made it a felony for a doctor to perform an abortion unless it was necessary to save the woman's life or health. The law had been challenged by a physician who had been indicted for interpreting the word "health" to include more than the statute allowed; the physician argued that the word "health" was unconstitutionally vague.

The Court rejected the argument but, in effect, approved a broader definition, noting that two other lower court rulings had construed the statute to permit abortions "for mental health reasons whether or not the patients had a previous history of mental defects." Indeed, the Court said, "this construction accords with the general usage and modern understanding of the word 'health,' which includes psychological as well as physical well-being."

With its decision, the Court rejected the notion that a legislature (in this case Congress) would authorize doctors to perform abortions that are necessary to preserve a woman's life or health and then "demand that a doctor, upon pain of...imprisonment, bear the burden of proving that an abortion he performed fell within that category. Placing such a burden of proof on a doctor would be peculiarly inconsistent with society's notions of the responsibilities of the medical profession."

The Court added, "Generally, doctors are encouraged by society's expectations, by the strictures of malpractice law and by their own professional standards to give their patients such treatment as is necessary to preserve their health....We...hold [that] the burden is on the prosecution to...prove that an abortion was not 'necessary for the preservation of the mother's life or health.' "

Two years later, in Doe v. Bolton, the Court struck down a provision of the Georgia abortion statute that required two independent physicians to confirm the attending doctor's determination that continuation of a pregnancy would endanger the woman's life or injure her health. "The attending physician's 'best clinical judgment that an abortion is necessary'...should be sufficient," the Court said.

"If a physician is licensed by the State," the decision stated, "he is recognized by the State as capable of exercising acceptable clinical judgment. If he fails in this, professional censure or deprivation of his license are available remedies. Required acquiescence by co-practitioners has no rational connection with a patient's needs and unduly infringes on the physician's right to practice."

Thirteen years later, in Thornburgh v. American College of Obstetricians and Gynecologists (1986), the Supreme Court ruled that when performing a postviability abortion, a physician must have the authority to choose the method most likely to preserve his patient's health, even if it might jeopardize fetal survival. The Court struck down a provision of a Pennsylvania abortion law that required a physician to exercise the same degree of care in performing a postviability procedure as he would be required to exercise "to preserve the life and health of any unborn child intended to be born and not aborted."

In addition, the law had required the doctor to use the abortion technique that would give the fetus the best chance of being aborted alive, unless "in the physician's good-faith judgment, that technique 'would present a significantly greater medical risk to the life or health of the pregnant woman.'" But the Court upheld an appeals court's ruling that the law was unconstitutional because it required "a 'trade-off' between the woman's health and fetal survival and failed to require that maternal health be the physician's paramount consideration."

Attempts by the States To Limit the Decisions

The bevy of Supreme Court decisions mentioned in this report were in response to challenges to laws enacted by the states following Roe v. Wade and Doe v. Bolton to clarify or, more often, to circumscribe these decisions. Although the Court in Roe v. Wade clearly gave the states the right, once a fetus has achieved viability, to regulate and even proscribe abortion except where appropriate medical judgment finds it necessary to preserve the life or health of the woman, the states did not need to codify the Court's guidelines in their statutes. Indeed, 10 states have no specific statutes dealing with postviability abortions.

Many, on the other hand, still have laws "on the books" that were overturned directly or de facto by the 1973 and subsequent Court decisions. For example:

• Three states (MI, NH and RI) have among their formal statutes laws that prohibit abortion after quickening;

• Five have laws prohibiting abortion in the third trimester (FL, GA, IA, SC and VA);

• Seven have statutes that permit abortion only when the woman's life is endangered (DE, ID, KS, MI, NH, NY and RI);

• Nine have laws prohibiting abortion after a certain number of weeks' gestation, usually 20 or 24 (CA, DE, MA, NV, NY, NC, PA, SD and UT);

• Eleven permit abortions only if the woman's life is in danger or if there is a "serious," "grave" or "irreversible" risk to her health (IN, MA, NV, NC, ND, OH, PA, TX, UT, VA and WY).

All are unconstitutional in light of the decisions mentioned earlier.

Information Sources

The following Supreme Court decisions are cited in this report:

Roe v. Wade, 410 U.S. 113 (1973);

Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976);

Colautti v. Franklin, 439 U.S. 379 (1979);

Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992);

United States v. Vuitch, 402 U.S. 62 (1971);

Doe v. Bolton, 410 U.S. 179 (1973); and

Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986).

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