by Clay Flaherty | Section Head, JURIST Archives
The continuing legal conflict over reproductive rights has embroiled the US legal system for decades. Since the US Supreme Court's landmark decision in Roe v. Wade, the regulation of abortion services has been a major target of legislation in the US Congress and in the legislatures of every US state. Despite numerous Supreme Court decisions and countless pieces of state and federal legislation, the controversy surrounding abortion and its appropriate level of constitutional protection has never truly subsided. Under Roe, a woman's right to choose to have an abortion has remained among the rights protected by the US Constitution, a holding that has been affirmed numerous times. However, a wide array of restrictions intended to curtail the availability and accessibility of abortion services have been adopted at both the federal and state levels. Many of those regulations have been upheld by the Supreme Court and lower federal courts of appeals under the rationale of protecting potential life. This ideological tension between a woman's constitutional right to choose an abortion, and the belief that abortion is immoral and should not be protected by the Constitution, has persisted as one of the most intractable legal and political conflicts in modern American history.
Following the November 2010 elections, legislation addressing abortion was taken up by Congress and state legislatures throughout the country. Much of this legislation sought to place additional limitations on abortion services, such as requiring the performance of ultrasounds before an abortion, extending mandatory waiting periods and placing greater restrictions on abortions in later stages of pregnancy. This renewed attention to abortion services sparked litigation in state and federal courts, testing the constitutional limits of the right to choose abortion and the ability of the government to restrict its availability.
by Meagan McElroy | Assistant Editor, JURIST Archives
Garrett Eisenhour | Assistant Editor, JURIST Archives
Katherine Bacher | Assistant Editor, JURIST Archives
Griswold v. Connecticut
The foundations of Roe v. Wade, which ruled that laws criminalizing abortion were unconstitutional, can be found in the Supreme Court's earlier decision of Griswold v. Connecticut. The Court's inquiry dealt directly with Section I of the Fourteenth Amendment, which outlines protections extended to all US citizens:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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; nor deny to any person within its jurisdiction the equal protection of the laws.
Beginning with Griswold
in 1965, the Due Process Clause of the Fourteenth Amendment has been interpreted by the Court to protect most of the rights found in the Bill of Rights, in addition to some that are not specifically listed in the Constitution. These additional rights, among them the right to privacy, have been found to be fundamental rights that cannot be infringed by federal or state governments. The right to privacy was established in Griswold
, which concerned a Connecticut law banning the sale of contraception. The Court ruled that the law was unconstitutional because it infringed upon the fundamental right of married couples to make intimate decisions regarding procreation.
Justice John Marshall Harlan, who wrote a concurrence in Griswold, expressed the Court's logic in locating fundamental rights beyond those explicitly enumerated in the Constitution:
[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This "liberty" is not a series of isolated points priced out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints ... and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.
Roe v. Wade
Beginning in the mid-1800s, states began to regulate and outlaw abortions, a practice that had gone largely unrestricted before this time. Prior to the Supreme Court's Roe v. Wade ruling in 1973, 30 states had outright bans on abortion, several others had exceptions for the mother's health or in the case of rape, and four allowed abortions to be performed upon request. Roe was a legal challenge to Texas laws that restricted access to abortions. The Court's ruling in Roe held that a woman's right to choose to have an abortion was a "fundamental right" that was protected under their right to privacy pursuant to the Fourteenth Amendment Due Process Clause.
Public opinion regarding the right to choose abortion remains polarized almost 40 years after the Court's decision. A few states have enacted so-called "trigger laws" that would automatically ban abortion in the event that the precedent of Roe is ever overturned. Those who are in favor of abortion rights, including Supreme Court Justice Ruth Bader Ginsburg, have staunchly opposed the idea of overruling the decision based, in part, on the idea that rescission of a woman's right to choose an abortion would disproportionately harm poor women who could not afford to circumvent the law by traveling to permissive jurisdictions. Congressional legislators even attempted to codify protection of abortion rights through the Freedom of Choice Act in April 2007.
Roe was decided on the same day as Doe v. Bolton, wherein the Court overturned a Georgia statute that restricted abortion procedures to cases of rape, severe fetal deformity or the possibility of severe or fatal injury to the mother.
Planned Parenthood v. Casey
In Roe, the Court determined that abortion rights should be evaluated so as to protect the "fundamental right" of both a woman's right to choose and a physician's right to select a course of medical treatment. In June 1992, the Supreme Court ruled in Planned Parenthood of Pennsylvania v. Casey that the state could regulate abortion so long as those restrictions did not create an "undue burden." While this new standard ultimately reaffirmed a woman's right to terminate her pregnancy, it established that a state could not impose "undue burdens" upon a woman's ability to make that decision. However, the ruling afforded states greater latitude to encourage women to carry their pregnancies to term. According to the Court, the state's interests are not strong enough to completely ban abortions before a fetus reaches "viability." But the state's interest in limiting abortions increases after viability, justifying greater burdens on the women's right to choose an abortion.
The Court's decision in Casey has been interpreted as banning the state from imposing unnecessary health regulations that put a "substantial obstacle" in the way of a woman's choice to have an abortion. The ruling specifically struck down a law requiring a woman to notify her husband of her decision to have an abortion as an undue burden because it had a greater impact on the pregnant woman's bodily integrity than it would on the husband's potential parental rights. However, the Court specifically stated that an "informed consent" requirement did not qualify as such an undue burden, nor did parental notification laws. The Court ruled that requiring a woman to be fully informed of the availability of information regarding the physical consequences to the fetus does not interfere with the woman's right to privacy. The ultimate legal result of Casey is that states may implement restrictions on abortion services so long as those regulations do not put substantial obstacles in the way of a woman's right to choose to have an abortion.
by Meagan McElroy | Assistant Editor, JURIST Archives
Kimberly Bennett | Assistant Editor, JURIST Archives
Restrictions on Public Funding of Abortion
Although the Supreme Court guaranteed women's constitutional right to have medical access to abortion in Roe, Congress has increasingly restricted federal funding of abortion services, most notably through the Hyde Amendment. Passed as part of appropriation bills in various forms, the basic purpose of the amendment is to prohibit the expenditure of federal funds on abortion except in cases of rape, incest or when necessary to save the life of the mother.
A related federal restriction on abortion funding is the Stupak-Pitts Amendment to the Patient Protection and Affordable Care Act (ACA). The amendment would have prohibited the use of federal funds "to pay for any abortion or to cover any part of the costs of any health plan that includes coverage of abortion," with the same health-related exceptions as the Hyde Amendment. Although not included in the Senate's version of the ACA, President Barack Obama incorporated a similar restriction into the health care reform law through Executive Order 13535 [PDF].
Partial-Birth Abortion Ban Act
In 2003, President George W. Bush signed the Partial-Birth Abortion Ban Act into law, which explicitly banned the practice of so-called "partial-birth" abortion, or dilation and extraction (D&X) abortions. D&X abortions are defined in the legislation as:
An abortion in which the person performing the abortion, deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and performs the overt act, other than completion of delivery, that kills the partially delivered living fetus.
Since the law's passage, the Supreme Court has issued several rulings further defining its legal scope.
The constitutionality of the Partial-Birth Abortion Ban Act was challenged immediately after its signing, and three US District Courts subsequently declared the act unconstitutional and issued injunctions preventing the law's enforcement. However, the district court injunctions were ultimately overturned by the Supreme Court in their 2007 decision in Gonzales v. Carhart. The Court ruled by a 5-4 vote that Congress's ban on D&X abortion was not unconstitutionally vague and did not impose an undue burden on the fundamental right of women to obtain an abortion, under the controlling precedents of the Court's prior decisions in Roe and Casey. The Court held that fetal life should be protected unless it created an undue burden on a woman's constitutional right to have an abortion. Legally, the case distinguished the Court's 2000 decision in Stenberg v. Carhart, which struck down a Nebraska partial-birth abortion law that was held to be more ambiguous than the statute in Gonzales. In Stenberg, the Nebraska law would have forced physicians to risk criminal charges for performing unauthorized abortions, thereby infringing on their right to select the safest medical treatment for their patients. In Gonzalez, however, the substantial governmental interest of protecting life, combined with congressional findings that D&X abortions are not medically necessary, led the Court to conclude that a health exception was not necessary.
Following the decision to uphold the federal prohibition in Gonzales, the issue of D&X abortions has been relegated to state legislatures. The virulence of the issue has not abated in the years since the federal ban took effect. In June 2012, the New Hampshire legislature overrode a veto from Governor John Lynch to adopt a statewide ban of D&X abortions. The issue has continued to be the subject of federal litigation. In a number of these subsequent cases involving D&X abortion statutes, courts have consistently rejected arguments that such laws are not governed by the precedent of Roe and Casey because the statutes outlaw a form of infanticide, rather than proscribe a method of abortion. JURIST Guest Columnist Richard Garnett argues that this distinction between infanticide and D&X abortion is purely academic:
Reasonable people can, and already do, disagree about whether the federal Act can really be distinguished from the Nebraska law that a different 5-4 majority struck down . . . in Stenberg v. Carhart, (In my view, the Court would have done better simply to reverse, as wrongly decided, that decision.) For present purposes, though, it is enough to endorse the decision's bottom line: Nothing in our constitutional text, history, or traditions disables the American people from democratically affirming -- albeit imperfectly -- our commitment to decency and human dignity by rejecting partial-birth abortion.
State Abortion Restrictions
by Cynthia Miley | Assistant Editor, JURIST Archives
Since Roe, states have reacted in a variety of ways, with most states seeking to limit the availability of abortion. These restrictions have taken various forms, including placing limits based on the gestational age of the fetus, adding informed consent requirements, and placing stricter limitations on minors seeking abortions.
Gestational Age & Viability
States have attempted to place limits based on abortion based on the gestational age, or "viability," of fetuses. The strictest types of these restrictions are referred to as "personhood" laws, which purport to extend full constitutional rights to fetuses, typically from the moment of conception. Such laws have the ultimate effect of banning abortion by extending the constitutional right to life to all fetuses in utero. As of January 2013, no US state had officially adopted personhood legislation. The legislatures of both Virginia and Oklahoma passed bills in 2012 defining life as beginning at the moment of conception; neither of these bills were enacted into law. Additionally, voters in both Mississippi and Colorado rejected ballot initiatives that would have added a personhood amendment to their state constitutions. In April 2013, the Kansas legislature passed a bill [PDF] defining life as beginning at fertilization, which was subsequently signed into law.
Similarly, the Ohio House of Representatives passed legislation in June 2011 that would prohibit abortions after a fetal heartbeat is detectable, which can occur as early as six weeks after conception. In March 2013, the legislature of North Dakota passed two bills, HB 1305 [PDF] and HB 1456 [PDF], which placed strict limitations on abortion, including banning non-emergency abortions after the fetal heartbeat is detected. Shortly thereafter, the North Dakota House of Representatives approved a "personhood" bill banning abortion by defining life as beginning at conception. North Dakota Governor Jack Dalrymple subsequently signed three of the recently passed bills into law; the bills banned abortion for the purpose of gender selection or genetic abnormalities of a fetus, banned abortion in cases where a fetal heartbeat is detected and required abortion providers within the state to have admitting privileges at a nearby hospital. The Center for Reproductive Rights (CRR) challenged the restrictions on behalf of North Dakota's sole abortion provider.
Another recent legislative scheme to limit abortions has banned abortion approximately 20 weeks after conception, based on disputed medical research that suggests that fetuses begin to experience pain after the twentieth week of development. Nebraska was the first state to enact such a law in April 2010. Since then, states including Alabama, Arizona, Idaho, Kansas, North Dakota, Ohio and Oklahoma have adopted laws that proscribe abortions beyond the 20 week mark. In November 2012, Arizona's law became the subject of a legal challenge before the US Court of Appeals for the Ninth Circuit. Overriding vetoes from Governor Mike Beebe, the Arkansas legislature passed bills in February 2013 and March 2013 outlawing abortions after 20 and 12 weeks of gestation, respectively.
Idaho's "fetal pain" statute was overturned in the US District Court for the District of Idaho on the basis that it placed an undue burden on a woman's right to an abortion and was unconstitutionally vague with regard to its criminal sanctions. In April 2013, the American Civil Liberties Union (ACLU) and the CRR challenged Arkansas's 12 week ban as a violation of Roe v. Wade, and in May 2013, a judge for the US District Court for the Eastern District of Arkansas temporarily blocked enforcement of the 12 week ban.
Several other state legislatures are still mired in debate over the issue of gestational age limits on abortion. In June 2011, the Iowa House of Representatives passed a bill that would prohibit abortions after 18 weeks. If ultimately adopted, Iowa will have the most restrictive gestational age restriction in the US. Arizona, Indiana and New Hampshire have all passed 20 week legislation through one of their two legislative chambers. Georgia began debating a similar law in March 2012 that limits abortions after five months instead of 20 weeks. In December 2012, the ACLU filed a lawsuit on behalf of three obstetrician-gynecologists to enjoin the law from taking effect. A judge for the Superior Court of Fulton County granted a temporary injunction [PDF] on December 20, 2012.
There has also been significant political pushback against gestational age limits on abortion. Gubernatorial vetoes have been used to halt the passage of such laws on multiple occasions. Minnesota Governor Mark Dayton vetoed legislation that would have prohibited abortion after 20 weeks of gestation in May 2011, and Missouri Governor Jay Nixon refused to sign similar legislation in July 2011.
However, almost every US state has enshrined strong prohibitions on abortion once the fetus reaches viability, which is based on its ability to survive outside of the womb. The exact date of viability in gestational development is not concrete, but is typically approximated between the twenty-second to twenty-fourth weeks of pregnancy. Twenty states currently proscribe abortion after the point of fetal viability, and five states prohibit abortions during the third trimester of pregnancy. Although such restrictions have been struck down on occasion, such decisions have typically done so because there were no health-related exceptions contained in the language, or because the law contained an unacceptably narrow health exception. Viability restrictions have also been struck down when they do not permit a physician to determine viability on a case-by-case basis, but, rather, enforce a rigid construction based on gestational age.
Maternal Age & Minors
Many states have limited the access of minors to abortion through a variety of legislative schemes. The most common approach has been to require minors to obtain some form of parental consent, or parental notification, before they are allowed to obtain an abortion. Thirty-nine states currently limit the ability of minors to obtain abortions by requiring parental notification or consent prior to the procedure. Twenty-one states explicitly require parental consent only, and 11 states require parental notification only, with only one requiring the notification of both parents. Five states require both consent and notification. Of these states, 36 have adopted an alternative judicial procedure by which the minor can bypass parental consent or notification.
There have also been efforts in multiple state legislatures to create stricter guidelines related to parental consent laws. Kansas Governor Sam Brownback signed legislation in April 2011 that requires unemancipated minors to obtain notarized parental signatures prior to an abortion. States have also made attempts to decrease access to judicial bypass provisions. Florida Governor Rick Scott approved legislation in June 2011 that revised the state's parental notice law. It changed the definition of "constructive notice" under the law and increased the time that is allowed to lapse before a court had to rule on a minor's petition for judicial bypass. Ohio likewise tightened their parental consent laws in November 2011 permitting judicial bypass only when the judge is presented with "clear and convincing evidence" that the abortion is in the best interest of the requesting woman. In November 2012, Montana voters approved by referendum a parental notification law that requires abortion facilities and doctors to inform the legal guardians of minors under 16 years of age 48 hours before a planned abortion procedure.
Not all states have been supportive of parental consent restrictions. Oregon voters rejected parental notification legislation in November 2006 and California similarly rejected Proposition 4 in November 2008, which would have amended the California Constitution to require physicians to notify the legal guardian of any unemancipated minor seeking an abortion. Some states have also sought to repeal existing parental notification legislation, such as New Hampshire in June 2007.
However, courts have also been divided over the issue, sometimes even within individual states. The Alaska Supreme Court struck down a law requiring parental consent in November 2007, but the Alaska Superior Court subsequently refused to block a law requiring parental notification for women under the age of 18 in December 2010.
JURIST Guest Columnist Caitlin Borgmann has argued that parental notification laws impose traumatic hurdles, and sometimes grave danger, on minors who lack supportive guardians:
"Parents understandably want to be involved in their minor children's important life decisions, but this desire has not translated to parental involvement requirements for other sensitive medical decisions that minors make. Most states recognize that mandating parental involvement for sensitive medical treatment will have the hazardous drawback of deterring many minors from seeking care at all. As the Guttmacher Institute reports, 'The legal ability of minors to consent to a range of sensitive health care services including sexual and reproductive health care, mental health services and alcohol and drug abuse treatment has expanded dramatically over the past 30 years.' Minors in most states can consent to services such as contraception, prenatal care, and treatment for sexually transmitted infection. In many states, minors can even relinquish their children for adoption and consent to medical care for their children. Parental involvement laws for abortion stand out as the glaring antithesis to this trend."
Restrictions on Types of Procedures
States have also sought to restrict abortion by limiting the types of procedures which doctors are legally permitted to perform. Several states have enacted legislative measures that proscribe "chemical abortion," such as those induced by medication, in favor of surgical procedures. Still others have reduced the number of surgical options available to doctors similar to the federal ban on D&X abortions.
The courts have remained skeptical of legislative restrictions on medical treatment options, although they have been hesitant to strike them down outright. North Dakota has been the locus of recent intense debate over non-surgical abortions. A North Dakota law effectively bans non-surgical abortions in the state. The law restricts the use of mifepristone, misoprostol and other drugs approved by the FDA to induce first-trimester abortions. The law was challenged by the CRR in July 2011 on the basis that it would effectively prevent any woman from seeking a non-surgical abortion in North Dakota and a state judge subsequently issued a temporary injunction against the ban. An Oklahoma state court issued a similar temporary injunction in October 2011 against a law that would have restricted how doctors could use abortion-inducing drugs to treat their patients. In April 2013, a state judge announced that he would strike down the law as an "insurmountable barrier" to accessing the procedure safely.
Because of the significant differences between these medical limitation laws, they have typically been challenged on a piecemeal basis. However, there have been concerted efforts amongst the states to specifically limit the use of the FDA-approved medication RU-486, often referred to as the "abortion pill." There has been disagreement in the district courts over the legality of such restrictions. A 1972 Idaho law prohibiting self-abortion was the basis for a class-action lawsuit filed in August 2011 after it was used to charge an Idaho woman, Jennie McCormack, for using RU-486 to terminate her pregnancy. The US District Court for the District of Idaho issued a temporary order in McCormack v. Heideman that prevented the state from enforcing the 1972 law criminalizing the use of RU-486. However, in May 2011 the US District Court for the Southern District of Ohio upheld a state statute that limited the use of RU-486 and overturned an earlier injunction from September 2006. The US Court of Appeals for the Sixth Circuit upheld the district court's ruling in October 2012.
Some states have also banned the practice of D&X abortions, modeling their legislation on an existing federal ban. Louisiana banned D&X abortions in June 2007 and the Missouri House of Representatives passed a law in March 2011 that would prohibit the use of D&X abortions on viable fetuses. In July 2012, the New Hampshire legislature passed a bill that bans intact D&X abortions, overriding Governor John Lynch's veto.
The courts have also become involved in the passage of state prohibitions on D&X abortions, with varied legal results. In June 2007, the US Court of Appeals for the Sixth Circuit unanimously ruled that Michigan's D&X abortion ban was unconstitutional because it did not ban the particular medical procedure, but rather protected the legal status for a partially delivered fetus. However, the US Court of Appeals for the Fourth Circuit upheld a Virginia law banning "partial birth" abortions in June 2009, reversing previous rulings that struck the law down as unconstitutional.
Another way in which states limit access to abortions is by creating stricter requirements for clinic compliance, such as requiring that clinics have facilities and staff similar to hospitals. These restrictions, which can regulate abortion clinics to the point of forcing them to close, are known as Targeted Regulation of Abortion Providers, or TRAP regulations. On July 1, 2012, a judge for the US District Court for the Southern District of Mississippi issued a temporary injunction blocking a controversial Mississippi abortion law that required all physicians performing abortions at a clinic to be licensed obstetricians and have admitting privileges for a nearby hospital. The district court extended the injunction in order to give providers at Mississippi's sole abortion clinic more time to seek hospital admitting privileges, then subsequently allowed the law to go into effect while ordering the state not to prosecute the clinic's providers while they attempted to comply. Providers at the clinic had applied for and been denied admitting privileges at all seven local hospitals that would have allowed them to comply with the law.
In April 2013, legislators in Alabama passed and Governor Robert Bentley signed a similar bill [PDF], requiring all abortion providers in the state to have admitting privileges at a nearby hospital as well as comply with additional facilities requirements such as minimum corridor widths.
Rather than restricting abortion through chronological or procedural restrictions, some states have opted to enact measures that require that women must provide sufficient "informed consent" prior to obtaining an abortion. The concept of informed consent is premised on the belief that medical patients must: (1) manifest the capacity to make decisions about their medical care; (2) demonstrate that their participation in their treatment is completely voluntary; (3) and ensure that patients are providing medical practitioners with adequate information. Most state abortion restrictions fall into this third category, with states taking different steps towards establishing what information is considered adequate and appropriate.
Thirty states have instated laws that institute waiting periods before women may obtain abortions. However, some of these "waiting period laws" have also been interdicted by judicial injunctions from state and federal courts. In November 2011, the Indiana Supreme Court upheld a law requiring a woman to undergo counseling and wait at least 18 hours before obtaining an abortion. South Dakota passed a law instituting a 72-hour waiting period on all abortions in March 2011, but the US District Court for the District of South Dakota issued an injunction prohibiting enforcement of that law in July 2011. The injunction was upheld by a judge for the US District Court for the District of South Dakota in July 2012. The courts are hardly the only institutions involved in the continuing debate over informed consent. In July 2011, both the North Carolina Senate and House of Representatives voted to override a veto from Governor Beverly Perdue on a law requiring a 24-hour waiting period. Conversely, Utah Governor Gary Herbert signed a bill into law in March 2012 that closely mirrors the South Dakota law.
Many states have also adopted controversial laws that require women to undergo ultrasounds prior to receiving an abortion pursuant to informed consent, sparking intense controversy in recent years. Texas Governor Rick Perry signed legislation in May 2011 that requires doctors to perform an ultrasound, and show the images to the woman, at least 24 hours prior to an abortion procedure. Doctors failing to conform with the law would be stripped of their medical licenses. The law was challenged, but upheld by the US Court of Appeals for the Fifth Circuit in January 2012. Florida Governor Rick Scott signed a similar law in June 2011 and ultrasound legislation was considered in both the Arizona and Idaho legislatures.
However, other ultrasound laws similar in scope to those discussed above may not survive judicial review. An Oklahoma trial court issued an injunction in July 2010 that blocked the enforcement of a bill [PDF] requiring women seeking abortions to undergo ultrasounds. The trial court found the law unconstitutional and unenforceable under the Oklahoma Constitution. Although Oklahoma Attorney General Scott Pruitt appealed, arguing that the district court's ruling prevents women from obtaining important medical information that ultrasounds provide, in December 2012 the Oklahoma Supreme Court also struck down the law. In October 2011, the US District Court for the Middle District of North Carolina issued a similar injunction partially blocking enforcement of a state law requiring physicians to perform ultrasounds and describe potential issues associated with abortion prior to performing a procedure. In March 2013, Oklahoma Attorney General E. Scott Pruitt filed a petition asking the US Supreme Court to review the Oklahoma Supreme Court's decision to strike down that state's law.
JURIST Guest Columnist Stephanie Toti argues that the injunction against the previously discussed Oklahoma law helps protect women's access to medical care:
"Had the Oklahoma law been allowed to take effect, it would have threatened women's continued access to abortion in a state where onerous legal burdens and intimidation by anti-choice extremists have already whittled the number of licensed abortion providers down to three. Moreover, it would have demeaned women, embodying a presumption that women are not capable of making informed medical decisions independently. The law would have enabled the State, and certain obstetricians, to control the information that a woman receives about her pregnancy - forcing some women to receive information that they consider irrelevant and preventing others from receiving information that they would consider crucial."
by Cody Harding | Assistant Editor, JURIST Archives
Government has regulated public access to contraceptives for centuries. During the nineteenth century, the distribution of contraceptives was regulated under the Comstock Act of 1873, which banned the sending of obscene and lewd material through the mail. In addition to pornography, these laws were extended to cover the transmission of contraceptives and information about contraceptives. Although the Comstock Act was upheld into the beginning of the twentieth century, social pressure and changing judicial attitudes eventually led to the laws being declared unconstitutional. In 1936, the US Court of Appeals for the Second Circuit declared in United States v. One Package of Japanese Pessaries that the laws could not be enforced so as to prevent the distribution of contraceptives. Thirty years later, the Supreme Court's decision in Griswold v. Connecticut laid the old regulations completely to rest, with the Court stating that a law prohibiting the use of contraceptives was an unconstitutional violation of privacy.
Beginning with the passage of Title X of the Public Health Service Act in 1970, the federal government began engaging in family planning policy and preventative sexual health care. The law is directed at providing healthcare support to low-income and uninsured families through the Office of Population Affairs (OPA) and the Department of Health and Human Services (HHS). Traditionally, Title X has provided access to FDA-approved contraception through state and local grants. The law also provides significant funding for Planned Parenthood, although several states have attempted to block this funding in recent years.
During 2011, the states of Kansas, Indiana and North Carolina passed legislation that would have cut off state funding to Planned Parenthood. Although these laws focused primarily on Planned Parenthood's support of abortion services, loss of funding to the organization would also impact contraceptive services. The US District Court for the Southern District of Indiana initially refused to issue a restraining order to prevent enforcement of the state's defunding effort, after Indiana Governor Mitch Daniels signed the act into law in May 2011. The US District Court for the Southern District of Indiana issued a temporary injunction against that state's defunding effort in June 2011, after the US Centers for Medicare & Medicaid Services claimed that the legislation violates federal law. The injunction was appealed by Indiana Attorney General Greg Zoeller in August 2011. Similar injunctions were issued against the defunding schemes adopted in Kansas and North Carolina in August 2011.
Legal conflict over contraceptives has also subsumed the legal controversy over the Patient Protection and Affordable Care Act (ACA), which includes provisions that require insurance companies to cover the cost of contraceptives. This requirement has sparked heated disagreement, much of it fueled by the objection of religious institutions on the basis that providing funding for contraception contradicts their dogma. The ACA contraception requirements directly conflict with many state laws that allow insurance companies and religious institutions to refuse coverage of contraceptives on moral grounds. In February 2012, seven state attorneys general filed a lawsuit challenging the contraception requirement in the ACA and seeking to block its enforcement. In May 2012, more than 40 Catholic dioceses sued the US government over the ACA's employer insurance requirements concerning contraception, alleging that the requirements violate their religious rights under the First Amendment.
On June 28, 2012, the US Supreme Court ruled that the ACA is constitutional, upholding almost the entirety of the law, including the controversial provisions related to contraception. In July 2012, the US District Court for the District of Nebraska dismissed a legal challenge to the ACA brought by state attorneys general on the basis of standing and ripeness. However, in December 2012, the US Court of Appeals for the Seventh Circuit temporarily enjoined enforcement of the ACA contraception provisions for a construction company owned by a Roman Catholic couple:
[T]he Kortes have established a reasonable likelihood of success on their claim that the contraception mandate imposes a substantial burden on their religious exercise. As such, the burden will be on the government to demonstrate that the contraception mandate is the least restrictive means of furthering a compelling governmental interest.
The contraception controversy has even reached the US Supreme Court, which denied
a similar application for an injunction brought by the company Hobby Lobby, Inc., in December 2012. In response to the Supreme Court's decision, both Hobby Lobby and Mardel, Inc. announced
that they will refuse to comply with the Court's order to provide their employees with contraception under the ACA. In response to the concerns of religious groups, the Obama administration announced
in February 2013 that it would allow religious non-profits to opt out of mandatory birth control coverage when they provide heath care services. In March 2013, a federal judge struck down
a Missouri law that required insurers to issue policies without contraception coverage if individual or employers had religious or moral objections because it conflicted with the contraception mandate of the ACA.
Much of the legal controversy surrounding the use of contraceptives has revolved around Plan B. This contraceptive is an oral pill that can be taken to prevent an unwanted pregnancy within 72 hours after unprotected sex. It was approved for over-the-counter sale in August 2006, but the FDA limited access to individuals 18 years or older until a court order further lowered the age at which Plan B could be bought without a prescription to 17. Minors aged 16 years and younger must obtain a prescription for Plan B. There have been several legal challenges mounted against over-the-counter sales of Plan B, although none have been successful in overturning the FDA's grant of approval. In March 2008, the US District Court for the District of Columbia dismissed a lawsuit filed by the American Association of Physicians and Surgeons (AAPS) that challenged over-the-counter sales.
In March 2009, Judge Edward Korman of the US District Court of the Eastern District of New York ordered the FDA to review its requirement that minors must obtain a prescription to purchase Plan B over-the-counter, and also ordered that Plan B be made available to 17-year-olds without a prescription. Judge Korman subsequently reopened the case challenging the prescription requirement, following the FDA's decision not to change their age-based restrictions after US Department of Health and Human Services Secretary Kathleen Sebelius blocked an FDA recommendation to allow over-the-counter sale of Plan B without age restriction. In April 2013, Judge Korman issued an order [PDF] to the FDA to allow unrestricted over-the-counter sale of the emergency contraceptive, which the DOJ appealed.
Another heavily legislated legal area of contraception law relates to emergency medical services and sexual assault victims. Currently, the District of Columbia and 17 states, including California, New York and Pennsylvania, require emergency rooms to provide emergency contraceptives to sexual assault victims. Additionally, California, Connecticut, Massachusetts, Minnesota, New Jersey, New Mexico, New York, Ohio, Oregon, Pennsylvania, South Carolina, Utah, Washington, Wisconsin and the District of Columbia require hospitals to dispense emergency contraceptives to sexual assault victims upon request. However, there has been resistance to such laws, with the Massachusetts legislature overriding a gubernatorial veto in September 2005 to require emergency room doctors to offer emergency contraception to rape victims.
States have also passed legislation that relates to pharmacies and their duty to dispense emergency contraception. California, Illinois, New Jersey, Oklahoma, Washington, and Wisconsin require pharmacies to fill all valid prescriptions, regardless of individual ethical considerations. This legislative compulsion has been met with stiff resistance, such as when Wal-Mart was ordered by the Massachusetts Board of Pharmacy to carry emergency contraceptives in all of its state stores in February 2006. The Illinois legislature was forced to negotiate a settlement in October 2007 in order accommodate objecting pharmacists after it passed a law requiring that emergency contraception be made available to patients immediately. A separate group of pharmacists even challenged the same law before the Illinois Supreme Court in March 2008. The state of Washington's emergency contraception law was similarly challenged in November 2007, but the US Court of Appeals for the Ninth Circuit ultimately upheld the law in July 2009.
Conversely, many states have passed legislation that generally limits access to emergency contraceptives. Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Illinois, Maine, Mississippi, South Dakota, Tennessee and most recently Kansas have all passed laws that permit pharmacists to refuse to dispense emergency contraception on moral grounds.
This JURIST Feature is edited and maintained by the head of JURIST Archives Meagan McElroy. Please direct all questions and comments to her at firstname.lastname@example.org. Updated as of May 20, 2013.