Major U.S. Supreme Court Rulings on Reproductive Health and Rights (1965–2000)

Since the 1973 decision in Roe v. Wade, the U.S. Supreme Court has handed down more than 20 major opinions regarding a woman's access to safe, legal abortion. Prior to 1973, the Supreme Court decided two contraceptive cases, Griswold v. Connecticut and Eisenstadt v. Baird, which helped to establish the basic principle in Roe: that the constitutional right to privacy extends to decisions regarding whether or not to have children.

Contraceptive Cases

1965

Griswold v. Connecticut 381 U.S. 479

Nature of Case: Challenge to a Connecticut law prohibiting use of contraceptives.

Holding: The law is unconstitutional. The Constitution contains a "right to privacy" that protects the decision of married couples to use contraceptives.

1972

Eisenstadt v. Baird 405 U.S. 438

Nature of Case: Challenge to a Massachusetts law allowing the sale or distribution of contraceptives only to married persons.

Holding: The law is unconstitutional. The right to privacy extends to individuals and protects the right of unmarried persons to obtain contraceptives.

1977

Carey v. Population Services International 431 U.S. 678

Nature of Case: Challenge to a New York law banning sale of even nonprescription contraceptives by persons other than licensed pharmacists, sale or distribution to minors under sixteen, and contraceptive display and advertising.

Holding: Statute is unconstitutional as violative of right to privacy of adults and minors affected and of right to free "commercial" speech of vendors of contraceptives.

1983

Bolger v. Youngs Drug Products Corporation 463 U.S. 60

Nature of Case: Challenge to a federal law that made it a crime to send through the U.S. mail unsolicited advertisements for contraceptives.

Holding: The law is unconstitutional because it violates the First Amendment's protection of "commercial speech." Possible offensiveness to sensitive addressees is not valid rationale for prohibiting communication of truthful, non-obscene information. The law also interferes with parents' access to information that might help them to discuss birth control with their children.

Abortion Cases

1973

Roe v. Wade

410 U.S. 113

Nature of Case: Challenge to a Texas law prohibiting abortions except to save the woman's life.

Holding: The law is unconstitutional. The right to privacy extends to the decision of a woman, in consultation with her physician, to terminate her pregnancy. During the first trimester of pregnancy, this decision may be effectuated free of state interference except for a requirement that the abortion be performed by a licensed physician. After the first trimester, the state has a compelling interest in protecting the woman's health and may regulate abortion to promote that interest. At the point of fetal viability (capacity for sustained survival outside the uterus), the state has a compelling interest in protecting potential life and may ban abortion, except when necessary to preserve the woman's life or health.

1973

Doe v. Bolton

410 U.S. 179

Nature of Case: Challenge to a Georgia law, based on the model proposed by the American Law Institute, prohibiting abortions except in cases of medical necessity, rape, incest, and fetal abnormality. The Georgia law also required that all abortions be performed in accredited hospitals and that two doctors and a committee concur in the woman's abortion decision.

Holding: The law is unconstitutional. It violates a woman’s right to choose abortion as recognized in Roe v. Wade (see above).

1975

Connecticut v. Menillo

423 U.S. 9

Nature of Case: Appeal from conviction of non-physician for performing abortion.

Holding: States may require that only physicians provide abortions. Such a regulation provides the minimum standard of safety upon which the constitutional right recognized in Roe was predicated.

1976

Planned Parenthood of Central Missouri v. Danforth

428 U.S. 52

Nature of Case: Challenge to a Missouri law requiring (a) parental consent to a minor's abortion; (b) husband's consent to a married woman’s abortion; (c) the woman's written informed consent; (d) that no second-trimester abortion be done by saline amniocentesis; and (e) that abortion providers do certain record keeping and reporting.

Holding: Parental and spousal consent requirements held unconstitutional because they delegate to third parties an absolute veto power over a woman’s abortion decision which the state does not itself possess. The requirement that the woman certify that her consent is informed and freely given is constitutional, as are the record-keeping and reporting requirements. The ban on saline amniocentesis is struck down because saline amniocentesis is the most commonly used abortion method after the first 12 weeks and was shown to be less dangerous to the woman's health than other available methods; the choice of method must be left to the physician. (Currently, dilatation and evacuation – D&E – is the most common method of mid-trimester abortion.)

1976

Bellotti v. Baird (Bellotti I)

428 U.S. 132

Nature of Case: Challenge to a Massachusetts law that required consent of both parents to a minor's abortion, but allowed the requirement to be waived by a judge for "good cause shown."

Holding: The statute may be constitutional, depending on the meaning of "good cause" and exact procedure that will be utilized. Case remanded for definitive interpretation by Massachusetts state courts of meaning of the statute (see discussion of Bellotti II, 1979.)

1977

Maher v. Roe

432 U.S. 464

Nature of Case: Challenge to Connecticut's limitation of state Medicaid funding to medically necessary abortions and refusal to fund "elective" abortions.

Holding: The law is constitutional. The state need not fund a woman's exercise of her right to choose abortion even though it pays the costs of childbirth.

1977

Poelker v. Doe

432 U.S. 519

Nature of Case: Challenge to a St. Louis, Missouri, municipal policy of refusal of all publicly financed hospital services for "elective" abortions.

Holding: The law is constitutional for the reasons stated in Maher v. Roe (see above).

1979

Colautti v. Franklin

439 U.S. 379

Nature of Case: Challenge to provisions of Pennsylvania law requiring physician intending to perform an abortion to determine that fetus is not viable. If physician finds that fetus "is or may be viable," he or she is required to exercise degree of care in performing abortion that would have been exercised if a live birth were intended.

Holding: Provisions are "void for vagueness" because meanings of "viable" and "may be viable" are unclear. Decision on viability must be left to the good-faith judgment of the physician. Provisions are also unconstitutional because they impose criminal liability on physicians regardless of their intent to violate the law.

1979

Bellotti v. Baird (Bellotti II)

443 U.S. 622

Nature of Case: The Massachusetts law challenged in Bellotti I (1976) arrived at the court definitively interpreted by the Massachusetts Supreme Judicial Court. The law would require, the Massachusetts court said, (a) that a minor first attempt to obtain her parents' consent before approaching a court for permission for her abortion and that parents be notified when a minor files a petition for judicial waiver; and (b) that the judge hearing the minor's petition may deny the petition if the judge finds that an abortion would be against the minor's best interests.

Holding: The law is unconstitutional. All minors must have an opportunity to approach a judge without first consulting their parents, and the proceedings must be confidential. A mature minor must be given permission for an abortion, regardless of the judge's view as to her best interests. Even an immature minor must be permitted to have a confidential abortion, if the abortion is in her best interests.

1980

Harris v. McRae

448 U.S. 297

Nature of Case: Challenge to the Hyde Amendment, which bans federal Medicaid funds for abortion except those necessary to save the woman's life.

Holding: The Hyde Amendment is constitutional. The government has no obligation to provide funds for the exercise of the right to choose abortion even though it pays for the cost of childbirth.

1980

Williams v. Zbaraz

448 U.S. 358

Nature of Case: Challenge to an Illinois version of the Hyde Amendment.

Holding: The statute is constitutional for the same reasons the Hyde Amendment is upheld in Harris v. McRae (see above).

1981

H.L. v. Matheson

450 U.S. 398

Nature of Case: Challenge to a Utah law requiring physician to notify a parent of an unemancipated minor prior to abortion.

Holding: The law is constitutional. The plaintiff is a dependent minor, living at home, who has made no claim that she is mature enough to give informed consent or that she has any problems with her parents that make notice inappropriate. As to this minor, the law is valid. Justices Stewart and Powell wrote a concurring opinion to emphasize that mature minors and those whose best interests mandate that parents not be involved have a right to a confidential abortion.

1983

City of Akron v. Akron Center for Reproductive Health

462 U.S. 416

Nature of Case: Challenge to an Akron, Ohio, ordinance requiring that (a) a woman wait 24 hours between consenting to and receiving an abortion; (b) all abortions after the first trimester of pregnancy be performed in full-service hospitals; (c) minors under fifteen have parental or judicial consent for an abortion; (d) the attending physician personally give the woman information relevant to informed consent; (e) specific information be given to a woman prior to an abortion, including details of fetal anatomy, a list of risks and consequences of procedure, some of which were false or hypothetical, and a statement that "the unborn child is a human life from the moment of conception"; and (f) fetal remains be "humanely" disposed of.

Holding: All challenged portions of the ordinance are unconstitutional: (a) the 24-hour waiting period serves neither the state's interest in protecting the woman's health nor in ensuring her informed consent; (b) the post-first-trimester hospitalization requirement interferes with a woman's access to abortion services without protecting her health because the dilatation and evacuation (D&E) method of mid-trimester abortion may be performed as safely in out-patient facilities as in full-service hospitals; (c) the minors' consent requirement fails to guarantee an adequate judicial alternative to parental involvement (see Bellotti II, 1979); (d) the physician counseling requirement makes abortions more expensive and is not necessary to ensure informed consent since the physician can delegate the counseling task to another qualified individual; (e) the informed consent "script" intrudes on the physician's judgment as to what is best for the individual woman and contains information designed to dissuade the woman from having an abortion; and (f) the requirement for "humane" disposal of fetal remains is too vague to give fair warning of what the law requires.

In 1992, the Supreme Court overturned parts of this case (see Planned Parenthood v. Casey).

1983

Planned Parenthood of Kansas City, Missouri, v. Ashcroft

462 U.S. 476

Nature of Case: Challenge to a Missouri law requiring that (a) all post-first-trimester abortions be performed in hospitals; (b) minors under 18 have parental consent or judicial authorization for their abortions; (c) two doctors be present at the abortion of a viable fetus; and (d) a pathologist's report be obtained for every abortion.

Holdings: (a) The hospitalization requirement is unconstitutional for the reasons stated in City of Akron v. Akron Center for Reproductive Health (1983); (b) the parental consent requirement is constitutional because the judicial bypass alternative contained in the statute conforms to the standards set out in Bellotti II (1979); (c) the presence of two doctors at late abortions serves the state's compelling interest in protecting potential life after viability and is, therefore, constitutional; and (d) the requirement of a pathology report is constitutional because it poses only a small financial burden to the woman and protects her health.

1983

Simopoulos v. Virginia

462 U.S. 506

Nature of Case: Criminal conviction of a physician for violating a Virginia law that requires all post-first-trimester abortions to be performed in hospitals.

Holding: The physician's conviction is upheld. Virginia law provides for licensing of freestanding ambulatory surgical facilities as "hospitals." Consequently, the Virginia law is not as restrictive as the laws struck down in City of Akron v. Akron Center for Reproductive Health (1983) and Planned Parenthood of Kansas City, Missouri v. Ashcroft (1983), and is therefore constitutional. Dr. Simopoulos could have avoided criminal prosecution by having his clinic licensed.

1986

Babbitt v. Planned Parenthood of Central and Northern Arizona

789 F. 2nd 1348 (9th Cir. 1986)

Affirmed 479 U.S. 925 (1986)

Nature of Case: Federal Court of Appeals for the Ninth Circuit ruled unconstitutional an Arizona law prohibiting grants of state money for family planning to organizations that provide abortion or abortion counseling and referral. The law would be valid, the appeals court said, only if the state could prove it was the only way to stop its money from being used to pay for abortions and abortion-related activities. Since the state could not prove this, the law was struck down.

Holding: The U.S. Supreme Court summarily affirmed the Ninth Circuit without issuing an opinion.

1986

Thornburgh v. American College of Obstetricians and Gynecologists, Pennsylvania Section

476 U.S. 747

Nature of Case: Challenge to Pennsylvania's 1982 Abortion Control Act requiring (a) that a woman be given specific information before she has an abortion, including state-produced printed materials describing the fetus; (b) that physicians performing post-viability abortions use the method most likely to result in fetal survival unless it would cause "significantly" greater risk to a woman's life or health; (c) the presence of a second physician at post-viability abortions; (d) detailed reporting to the state by providers on each abortion, with reports open for public inspection; and (e) one parent's consent or a court order for a minor's abortion.

Holding: (a) the informed consent provision is invalid because it interferes with the physician's discretion and requires a woman to be given information designed to dissuade her from having an abortion; (b) the provision restricting post-viability abortion methods is invalid because it requires the woman to bear an increased risk to her health in order to maximize the chances of fetal survival; (c) the second-physician requirement is invalid because it does not make an exception for emergencies; (d) the reporting requirement is unconstitutional because it could lead to disclosure of the woman's identity; and (e) the parental consent issue is remanded to the lower court for consideration in light of newly enacted state court rules.

In 1992, the Supreme Court overturned portions of this ruling in Planned Parenthood v. Casey

1989

Webster v. Reproductive Health Services

492 U.S. 490

Nature of Case: Challenge to Missouri's 1986 Act: (a) declaring that life begins at conception;

(b) forbidding the use of public funds for the purpose of counseling a woman to have an abortion not necessary to save her life; (c) forbidding the use of public facilities for abortions not necessary to save a woman's life; and (d) requiring physicians to perform tests to determine viability of fetuses after 20 weeks gestational age.

Holding: (a) the court allowed the declaration of when life begins to go into effect because five justices agreed that there was insufficient evidence that it would be used to restrict protected activities such as choices of contraception or abortion. Should the declaration be used to justify such restrictions in the future, the affected parties could challenge the restrictions at that time; (b) the court unanimously declined to address the constitutionality of the public funds provision. The court accepted Missouri's representation that this provision was not directed at the conduct of any physician or health care provider, private or public, but solely at those persons responsible for expending public funds, and that the provision would not restrict publicly employed health care professionals from providing full information about abortion to their clients; (c) the court upheld the provision that barred the use of public facilities. It ruled that the state may implement a policy favoring childbirth over abortion by allocations of public resources such as hospitals and medical staff; and (d) the court upheld the provision requiring viability tests by interpreting it not to require tests that would be "imprudent" or "careless" to perform.

This decision opened the door to state regulation of abortion.

1990

Ohio v. Akron Center for Reproductive Health

497 U.S. 502

Nature of Case: Challenge to a 1985 Ohio statute requiring a physician performing an abortion on a minor to give notice to her parent or guardian 24 hours prior to the procedure. Although the law provides a judicial bypass mechanism, the Sixth Circuit Court of Appeals found several aspects of it unduly burdensome to minors and constitutionally deficient.

Holding: The statute is held constitutional. The court ruled that the law complies with its prior holdings on minors' abortions, since it provides a sufficiently anonymous and expeditious judicial alternative to parental notification. The court rejected the argument that the judicial bypass was flawed because it required the minor to sign her name on court papers, prove her entitlement to avoid parental involvement by clear and convincing evidence, and wait as long as three weeks to obtain a court ruling. It also upheld a requirement that the physician personally notify the parent. One justice (Stevens) noted that the law may yet prove unduly burdensome in operation, and in his view, even one-parent notification laws must contain a judicial alternative, a point not ruled on by the other justices who formed a majority.

1990

Hodgson v. Minnesota

497 U.S. 417

Nature of Case: Challenge to a 1981 Minnesota statute that required notification of both biological parents, followed by a wait of at least 48 hours, prior to a minor's abortion. No exception to the notification requirement was provided for divorced parents or couples who were not married. A second section of the statute provided for a judicial bypass if the two-parent notification provision without a waiver procedure were judicially enjoined. Hodgson was the first parental consent or notification case to reach the Supreme Court with an operational challenge, since the law was in effect in Minnesota for nearly five years.

Holding: The court held that two-parent notification with no judicial bypass alternative poses an unconstitutional burden on a minor's right to abortion. A different majority of the court allowed the second section of the Minnesota law to stand, however, because of the addition of a judicial alternative. In addition, the court upheld the validity of the 48-hour waiting period following notification before the abortion can be performed.

1991

Rust v. Sullivan / State of New York v. Sullivan

500 U.S. 173

Nature of Case: Challenge to 1988 regulations promulgated by the U.S. Department of Health and Human Services (DHHS) that forbid the provision of information about abortion in family planning clinics funded by Title X of the federal Public Health Service Act (1970). In place of nondirective, comprehensive options counseling for women with unintended pregnancies, the new rules include compulsory referral for maternity care. Additionally, the regulations require clinics to "financially and physically" separate Title X-funded activities from privately funded "abortion-related activities." Planned Parenthood of New York City, Planned Parenthood of Westchester/Rockland Counties, and other Title X providers challenged the regulations on grounds that they violate the intent of Congress, mandate a denial of necessary information to the patient, and require a breach of medical ethics by the practitioner. Plaintiffs argued additionally that the regulations violate a woman's constitutional right to choose abortion and her First Amendment right to receive unimpeded information from her physician about abortion.

Holding: The court held that the regulations are a reasonable interpretation of statutory prohibitions against the use of Title X funds in programs "where abortion is a method of family planning." Even though the rule reversed 18 years of policies that had allowed options counseling and abortion referral in the Title X program, the court said the DHHS secretary made a reasoned decision to change the policy on the basis of a "shift in attitude toward the elimination of unborn children by abortion." The court further held that the regulations do not violate the First Amendment or the right to choose abortion, ruling that the government has no obligation to pay for the exercise of constitutional rights. The court held that the government's decision not to fund the provision of information does not directly interfere with the rights of doctors, clinics, or patients, since providers are free to offer abortions and abortion-related information in separate programs, and women who wish unbiased medical information and services are free to seek them elsewhere.

1992

Planned Parenthood of Southeastern Pennsylvania v. Casey

505 U.S. 833

Nature of Case: Challenge to Pennsylvania's 1989 Abortion Control Act, portions of which reinstated restrictions previously ruled unconstitutional in Thornburgh v. American College of Obstetricians and Gynecologists (1986). The 1989 statute required that, except in narrowly defined medical emergencies: (a) a woman wait 24 hours between consenting to and receiving an abortion; (b) the woman be given state-mandated information about abortion and offered state-authored materials on fetal development; (c) a married woman inform her husband of her intent to have an abortion; and (d) minors' abortions be conditioned upon the consent, provided in person at the clinic, of one parent or guardian, or upon a judicial waiver. In addition, physicians and clinics that perform abortions were required to provide to the state annual statistical reports on abortions performed during the year, including the names of referring physicians. The Third Circuit Court of Appeals upheld all portions of the law except the husband-notification requirement.

Holding: The court held that all restrictions, except for the husband-notification requirement, are constitutional. In reaching its decision, the court reaffirmed the validity of a woman's right to choose abortion under Roe v. Wade, but revoked its longstanding definition of that right as "fundamental." Instead, the court constructed a new standard of review that allows restrictions on abortion prior to fetal viability so long as they do not constitute an "undue burden" to the woman. Such provisions are not unduly burdensome merely because they are an attempt to persuade a woman to carry her pregnancy to term. Pennsylvania's husband-notification requirement was struck down as unduly burdensome under the new standard.

In upholding the Pennsylvania abortion restrictions, the court overturned portions of two of its previous rulings, City of Akron v. Akron Center for Reproductive Health (1983) and Thornburgh v. American College of Obstetricians and Gynecologists (1986), which had found similar "informed-consent" requirements unconstitutional under the "strict scrutiny" test.

1993

Bray v. Alexandria Women's Health Clinic

113 U.S. 753

Nature of Case: Appeal by Operation Rescue of a Fourth Circuit Court of Appeals decision that had upheld a challenge to the organization's activities in blocking access to health care facilities in the Washington, D.C., area. Plaintiffs included Planned Parenthood Metropolitan Washington, D.C., and other abortion clinics and organizations that represented women seeking reproductive health care. At issue was the use of a federal civil rights statute, 42 U.S.C. § 1985(3), in civil suits against abortion clinic protesters. The 1871 law, known popularly as the "Ku Klux Klan Act," forbids conspiracies designed to deprive a person or class of persons of their constitutional rights. The Supreme Court had not ruled previously on the issue of whether the statute protects gender-based classes, about which federal courts were divided. A panel of the Fourth Circuit Court of Appeals ruled that women were protected under the statute, finding that Operation Rescue violated 42 U.S.C. § 1985(3) by interfering with the constitutional right of women to travel interstate for the purpose of obtaining an abortion.

Holding: The court held that the federal statute does not protect women seeking abortions as a class. In reaching its decision, the court held that Operation Rescue was not motivated by "class-based discriminatory animus," as the court has required, but rather by concern for the "innocent victims" of abortion. The court held further that the clinics had failed to prove that Operation Rescue had interfered with the right of women to travel interstate for the purpose of securing an abortion.

1994

National Organization for Women v. Scheidler

114 U.S. 798

Nature of Case: Appeal by the National Organization for Women (NOW) from a Seventh Circuit Court of Appeals decision that denied use of the federal Racketeer Influenced and Corrupt Organizations (RICO) Act against anti-abortion organizations that engage in unlawful blockades and other harassment against abortion clinics. NOW initiated the suit on behalf of abortion providers in Delaware and Wisconsin that were subjected to clinic blockades by Operation Rescue, Pro-Life Action League, and other anti-abortion groups. The RICO Act, established in 1970 as a tool against organized crime, punishes "enterprises" that engage in a "pattern of racketeering." While the Seventh Circuit Court of Appeals held that the law applies only to activities that are motivated by economic gain, which could not be demonstrated against Operation Rescue, NOW argued that RICO is applicable because the unlawful actions constituted a nationwide conspiracy to eliminate access to abortion by using extortion and intimidation to drive the clinics out of business.

Holding: The court overturned the appeals court decision, allowing the lawsuit to proceed using RICO as its basis. The court held that RICO can be used in the absence of an economic motive, and that the term "enterprise" can include any individual or group of individuals, partnership, corporation, association, or other legal entity. While the court did not address the possible First Amendment ramifications of the broadened scope of RICO, Justice Souter noted in a concurring opinion that the court was not barring First Amendment challenges to RICO in particular cases.

1994

Madsen v. Women's Health Center

114 U.S. 2516

Nature of Case: Appeal by three anti-abortion protesters of a Florida Supreme Court ruling that upheld an injunction establishing a "buffer zone"

around a Melbourne, Florida, abortion clinic to protect access to the facility. The order was granted in 1993 in response to militant demonstrations by members of Operation Rescue, an anti-choice organization. Because a more limited measure had proven inadequate, the injunction by a Brevard/Seminole County judge established a 36-foot buffer zone on public property around the clinic, prohibited demonstrators' noise and visual displays that could be heard and seen inside the clinic, and established a 300-foot buffer zone around the residences of clinic physicians and staff.

Holding: The court held that the 36-foot buffer zone is a content-neutral measure that does not infringe on the First Amendment rights of abortion opponents, and that the ban on disruptive noise was also constitutional. The majority indicated that Florida's interests include "protecting a woman's freedom to seek lawful medical or counseling services in connection with her pregnancy." But the court limited the scope of its ruling by striking down other portions of the injunction, including application of the buffer zone to private property adjoining the clinic, the 300-foot residential buffer zone, and the prohibition against "images observable to" patients inside the clinic. While striking these portions, however, the court indicated that a more narrow prohibition on actual or veiled threats might be constitutional.

1997

Schenck v. Pro-Choice Network of Western New York

117 U.S. 855

Nature of Case: Challenge on First Amendment grounds to injunction aimed at protecting access to reproductive health care clinics. Three elements of the injunction were challenged: (1) a "fixed" buffer zone prohibiting all demonstration activity within 15 feet of the clinics’ doorways, driveways, and parking lot entrances; (2) a "floating" zone prohibiting all demonstration activity within 15 feet of any person or vehicle entering or leaving the clinics; (3) "cease and desist" provisions, which allowed no more than two "sidewalk counselors" to approach patients within the buffer zones, but required them to stop "counseling" and withdraw outside the zones upon request.

Holding: The government interests in ensuring public safety and protecting a woman’s freedom to seek pregnancy-related services justify properly tailored injunctions to secure unimpeded physical access to clinics. The court upheld the "fixed" buffer zone as necessary to ensure safe access to the clinics in light of the demonstrators’ previous behavior. The court, however, struck down as unconstitutional the "floating buffer zone," because it burdened more speech than was necessary to achieve the government interest. The court upheld the "cease and desist" provision because it allowed demonstrators to espouse their message outside of the zone and was necessary to address their previous harassing and intimidating behavior. As the court struck down the "floating" zone, it did not rule on the "cease and desist" provisions as applied to that zone.

2000

Hill v. Colorado

530 U.S. ___

Nature of Case: Challenge on First Amendment grounds to a Colorado statute that established an eight-foot "bubble zone" around anyone within 100 feet of a healthcare facility. This statute forbids individuals from knowingly approaching closer than eight feet another person who is within 100 feet of the entrance of a healthcare facility, without that person’s consent, in order to leaflet, display a sign, or engage in protest, education, or counseling.

Holding: The statute does not violate the First Amendment because it does not regulate speech on the basis of content or viewpoint. The court concluded that it was a reasonable time, place, and manner restriction that left open ample alternative means of communication — (1) the eight-foot distance of separation required by the statute would not adversely affect the regulated speech because this is a normal conversational distance (2) the statute only bans "approaches," therefore protestors are not liable if they stand still and others come within eight feet of them (3) the protestor must "knowingly" approach, and the "knowingly" requirement protects against accidentally or unavoidably coming within eight feet of someone who is in motion. The court also addressed the question of the legitimacy of the state’s interest in enacting this type of restriction and found the state’s interest in protecting the unwilling listener from persistent and dogged intrusions, particularly in situations that the listener cannot choose to avoid, to be legitimate.

Stenberg v. Carhart

530 U.S. ___

Nature of Case: Appeal by the state of Nebraska following the Eighth Circuit Court of Appeals decision that Nebraska’s so-called "partial-birth" abortion ban was unconstitutional.

Holding: The court upheld by a narrow margin of 5–4 — a crucial but frail pro-choice victory — the Eighth Circuit Court of Appeals decision invalidating Nebraska’s ban on so called "partial-birth" abortion. In its judgment, the Court ruled on two components of Nebraska’s ban — the lack of a health exception and the undue burden on a woman’s right to abortion created by broad language of the ban. These two components are described below:

Health Exception: The majority opinion reaffirmed that when a state regulates abortion, a woman’s health must be paramount. The court held that every abortion regulation must contain a health exception allowing an abortion when "necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." The court also ruled that the exception must allow the physician to exercise reasonable medical judgment, even where there might be differing medical opinion. The court made clear that such an exception cannot be limited to when there is an "absolute necessity," nor unanimity of medical opinion and that the law must tolerate responsible differences of medical opinion. The opinion also made clear that this exception not only applies to circumstances that arise as a result of the woman’s medical condition, but also applies to regulations that would, without such an exception, "force women to use riskier methods of abortion." Because the Nebraska law lacks a health exception, the court ruled that it is unconstitutional.

Undue Burden: In ruling that the statute imposed an undue burden, the court rejected Nebraska’s claim that the ban could be limited to the dilation and extraction (D&X) procedure, holding that "[e]ven if the statute’s basic aim is to ban D&X, its language makes clear that it also covers a much broader category of procedures," including the dilation and evacuation (D&E) procedure. Thus, the Court found that the law could be used 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."

References and Additional Information

Babbitt v. Planned Parenthood of Central and Northern Arizona, 789 F. 2nd 1348 (9th Cir. 1986), Affirmed 479 U.S. 925 (1986).

Bellotti v. Baird (Bellotti I), 428 U.S. 132 (1976).

Bellotti v. Baird (Bellotti II), 443 U.S. 622 (1979).

Bolger v. Youngs Drug Products Corporation, 463 U.S. 60 (1983).

Bray v. Alexandria Women's Health Clinic, 113 U.S. 753 (1993).

Carey v. Population Services International, 431 U.S. 678 (1977).

City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983).

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

Connecticut v. Menillo, 423 U.S. 9 (1975).

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

Eisenstadt v. Baird, 405 U.S. 438 (1972).

Griswold v. Connecticut, 381 U.S. 479 (1965).

H.L. v. Matheson, 450 U.S. 398 (1981).

Harris v. McRae, 448 U.S. 297 (1980).

Hill v. Colorado, 530 U.S. ___ (2000).

Hodgson v. Minnesota, 497 U.S. 417 (1990).

Madsen v. Women's Health Center, 114 U.S. 2516 (1994).

Maher v. Roe, 432 U.S. 464 (1977).

National Organization for Women v. Scheidler, 114 U.S. 798 (1994).

Ohio v. Akron Center for Reproductive Health, 497 U.S. 502 (1990).

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

Planned Parenthood of Kansas City, Missouri, v. Ashcroft, 462 U.S. 476 (1983).

Planned Parenthood v. Casey, 505 U.S. 833 (1992).

Poelker v. Doe, 432 U.S. 519 (1977).

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

Rust v. Sullivan / State of New York v. Sullivan, 500 U.S. 173 (1991).

Schenck v. Pro-Choice Network of Western New York, 117 U.S. 855 (1997).

Simopoulos v. Virginia, 462 U.S. 506 (1983).

Stenberg v. Carhart, 530 U.S. ___ (2000).

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

Webster v. Reproductive Health Services, 492 U.S. 490 (1989).

Williams v. Zbaraz, 448 U.S. 358 (1980).

 

Courtesy of: Public Policy Litigation and Law Department of Planned Parenthood Federation of America