Questions and answers about abortion rights

Gary Jacobsen
Published: May 26, 2008

Abortions should be safe, legal and rare
— Planned Parenthood

On May 20, a federal appeals court in Richmond overturned for the second time Virginia’s law on late-term abortions. The court ruled that the law created an “undue burden” on women by going beyond the guidelines set last year by the U.S. Supreme Court in the case of Gonzales v. Carhart.

I and many others argued against the Virginia law when it was passed in 2003, principally because it appeared to rest on shaky constitutional grounds. No matter. The politicians in Richmond passed it anyway. The bill was authored by Del. Robert G. Marshall, R-Manassas, a far right politician who has long opposed abortion rights.

Before Virginia’s elected representatives go down this road again, they need to acquire at least a rudimentary knowledge of abortion rights. Perhaps the following questions and answers will be helpful to them:

Question: Does the U. S. Constitution establish abortion rights?

Answer: Yes, but indirectly. The High Court settled this issue in Roe v. Wade by holding that the Fourteenth Amendment of the Constitution establishes a right of privacy that is “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

Question: Does the Roe decision allow abortions right up to the day of delivery?

Answer: Yes and no. The Court said that a gestation period covers three trimesters, consisting of approximately 12 weeks each. Only during the first trimester does a woman have an unrestricted right to terminate a pregnancy. In the second, she may terminate the pregnancy, but only at a full-service medical facility. During the third trimester, she may not have an abortion unless her life or health is in jeopardy.

Question: How have the states handled third-trimester abortion cases?

Answer: Late term procedures (24 or more weeks) are extremely rare — less than one percent of the total. Nevertheless, the states have ample authority under Roe v. Wade to restrict third-trimester abortions. In Virginia, for example, two physicians besides the attending physician must certify that a late-term procedure is needed to preserve the life or health of the woman before it can be performed.

Question: Did the U. S. Supreme Court later modify its original position concerning second-trimester abortions?

Answer: Yes. In the 1989 case of Webster v. Reproductive Health Services, the High Court stated in a 5-4 decision that a Missouri law that required doctors to perform second-trimester viability exams was constitutional. However, the Court declined to specifically overturn Roe.

Question: Don’t the “unborn” have rights?

Answer: Mr. Justice Blackmun, writing the majority opinion in Roe v. Wade, stated that “the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.”

Question: Has the Roe v. Wade case ever been reaffirmed by the Supreme Court?

Answer: Yes. In the 1992 case of Planned Parenthood v. Casey, the U. S. Supreme Court reaffirmed Roe v. Wade, stressing the need for stare decisis (stand by decisions), and for other reasons.

Question: Didn’t Congress pass a federal law in 2003 to outlaw IDX (intact dilation and extraction) abortions in certain late-term procedures?

Answer: Yes. The U. S. Supreme Court considered multiple challenges to the law, but in the 2007 case of Gonzales v. Carhart ruled 5-4 to approve it. As a practical matter the law has had little effect, since less than one percent of all abortions come under the law’s purview.

Sources:

Gonzales v. Carhart, 550 U.S. (2007)

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

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

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

Gary Jacobsen lives in Woodbridge