The Past, Present, and Future of Abortion Legislation in the US

 Kate Dixon, M1, Class of 2023

Kate has worked in Washington D.C. for the past two years in policy.

We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion.

  • Roe v. Wade, 410 U.S. 113 (1973)

 

The topic has never been an easy one. In the last few months, abortion has taken over the news (and social media feeds) as some states across the nation have passed new laws that greatly restrict abortion access. Alternatively, states such as Maine, New York, Illinois, Vermont, Rhode Island, and Nevada have passed laws to expand abortion access in various ways. These law changes have impact on our community, as Missouri – a literal stones-throw away from KU med – is among those states that have passed “heartbeat” bills that ban abortion after detection of a heartbeat (~8 weeks into fetal development).

The efforts to restrict access to abortion are in response to the new conservative appointments to the Supreme Court. The goal of conservative activists is for these laws to provoke lawsuits, ultimately resulting in allowing the Supreme Court to reconsider the ruling of Roe v Wade and weaken abortion protections at the federal level.

History of the Law

In order to have a full grasp on all the commotion around these laws, we need to take a step back to January 1973 when the United States Supreme Court made its decision on Roe v Wade. Here is what went down:

Roe was a pregnant, single woman in the State of Texas who challenged the constitutionality of the state’s abortion law that criminalized abortion at any stage of the pregnancy. Abortion in Texas was only allowable in situations where the mother’s life was in danger, and Roe believed this to be a violation of her right of personal privacy. The court ruled in favor of Roe, stating that the Texas law violated the right to privacy implicit in the Fourteenth Amendment. Interestingly enough, there is no explicit right to privacy in the 14th amendment. The decision of the court established three main guidelines around abortion:

  1. Abortion during the first trimester is left up to the medical judgment of a woman’s physician.
  2. Following the end of the first trimester, states may regulate abortion.
  3. Following determination of viability (ability to live outside the mother’s womb – usually marked at ~28 weeks when Roe was decided, now ~22 weeks), states may regulate abortion except in cases where the life or health of the mother is in jeopardy.

Therefore, the opinion left a lot up to the states after the first trimester. As a result, we see a patchwork of abortion regulations across the country.

Abortion Laws in Missouri and Kansas

As mentioned, Missouri is one of the handful of states that has passed a bill banning abortion eight weeks after conception. The law only makes an exception in the case of medical necessity; rape, incest, and human trafficking instances still fall under the ban. Physicians who do not comply could serve up to 15 years in prison; however, women receiving abortions would not be prosecuted under the law.

It is likely that the restrictive measures in the Missouri law will result in more women coming to Kansas for abortion procedures. Last month, the Kansas state Supreme Court ruled that abortion rights were protected under the State Constitution. The ruling established that, unless the State Constitution is amended, abortion will remain legal in the State of Kansas even if Roe v. Wade is overturned.

Before the recent swath of abortion restrictions passed by states like Missouri, Kansas was one of the more abortion-restrictive states. Kansas law prohibits abortion after the fetus is determined viable by the woman’s attending physician, approximately 22 weeks gestational age. An abortion may be completed after viability if the life or health of the mother is in danger but requires the opinion of a second physician to determine medical necessity. The law requires that the woman considering abortion undergo counseling 24 hours prior to receiving abortion services. Restrictive, but less so than Missouri.

What This Means

 The battle between Pro-Life and Pro-Choice is never going to go away. The arguments come from a fundamental disagreement in the incredibly complicated and emotional balance between the rights of an unborn baby and those of a woman. The opinion of the Justices in Roe v. Wade articulates this so well:

“Though the State cannot override that right [to abortion], it has legitimate interests in protecting both the pregnant woman’s health and the potentiality of human life, each of which interests grows and reaches a ‘compelling’ point at various stages of the woman’s  approach to term.”

We have never been able to draw a firm line in the sand litigiously; I do not believe we ever will nor that we should. There is no way to make 330 million American citizens happy on a topic that is so controversial. I worry that stirring up the dust around Roe v. Wade will only result in a law that is less compromising than what exists today.

Personally, I know that I would never receive an abortion, no matter the circumstances. The myriad cultural and religious experiences that have made me “me” have established a distaste for the act. But that’s my opinion, my own idea of where I draw the line for myself. That is not to say that every other person in the United States of America should draw the same line. My freedom as an American is to have my own beliefs, not to force those beliefs on someone else.

“[The Constitution] is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.”

  • Lochner v. New York, 198 U.S. 45, 76 (1905)

While the future of these heartbeat bills and the ruling of Roe v. Wade are unclear, what is certain is the controversy surrounding the issue. Abortions nor the sensitivity of the topic will ever go away. No matter which side of the argument you stand it is important – especially as a health care provider – to be cognizant and considerate of the topic and of the statutes that dictate it.

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