Roe v. Wade: At Odds with Lawmakers

Although personal medical decisions are usually not ones made with lawmakers or the public in mind, the topic of abortion is consistently addressed on both platforms. Regulations regarding the safety, availability, and location of abortion providers have been heavily debated since the early 20th century. Each state is free to regulate abortion availability and options as they wish, however, the federal government has previously allowed cases to be heard through the Supreme Court when state laws are questioned based on scope and constitutionality. 

Recent legislature in Alabama has brought to light the increasing focus on long standing abortion regulations. The recent ruling mandates that no facility performing abortions can be located within 2,000 feet of an educational facility serving kindergarden through eighth grade (Faulk). The supporters of the new laws reference both a pro-life stance and an effort to protect children from potential protest activity occurring in the vicinity. Those who opposed the bill are disappointed that the state of Alabama has once again pushed the legal limits on abortion in a state that already has some of the strictest regulations in the country.  

History of Abortion Legislation

Roe v. Wade was a landmark case which was presented to the court after nearly a decade of strong campaigning by Pro-Choice America, a newly formed advocacy group. Initially, the group was formed without an agenda in mind and no official stance on the issue.  They did not decide whether or not they would be strictly pro-choice or adopt the stance of the currently proposed model from the American Law Institute. In 1959, the American Law Institute has issued a position statement proposing abortion legislation in which abortion would remain illegal except for the following circumstances:

• The event that carry the fetus to term may irrevocable harm the mother, wither physically or mentally

• Severe fetal abnormality

• Cases in which the impregnation of the woman was the result of unwilling sexual activity, such as rape or incest.

During the following years, prior to Roe v. Wade in 1973, thirteen states acted on the recommendation, passing legislation based on the proposal (National Right to Life Coalition). A select few, including Colorado, California, and North Carolina had proposed new bills which legalized abortion completely, along as the procedure was completed before the states definition of viability (Today in Civil Liberties History).

Current Regulations in Alabama

The state of Alabama continues to push the limits of abortion regulation by banning abortion facilities within 2,000 feet of school facilities. Currently, the regulations in Alabama are some of the strictest in the nation, including:

1) Ala. Code § 13A-13-7 which states that abortion is illegal despite being in direct conflict with the Supreme Court’s decision in Roe v. Wade, essentially rendering the law unenforceable (CITATION).  The only exception to the code is the potential of imminent danger to the mother.

2) Ala. Code § 26-21-3 which states that all minors must obtain parental permission in order to obtain an abortion. Emancipated minors must provide a written statement of competence prior to obtaining an abortion.  The statute allows minors to petition the court, with assistance from a juvenile court officer, to not require parental permission. A guardian-ad-litem represents the unborn child during the proceedings.

3) Ala. Code § 26-22-1:5: prevents abortion when the unborn child is potential viable, with the exception of the mother’s imminent death. This code requires an additional seven steps, including viability testing, written reports, consultations, location of procedure, presence of infant care team, in order to certify an abortion legal under these circumstances. 

4) Ala. Code § 26-23-1:6: banning the use of partial birth abortions of any kind unless it is immediately necessary to save the life of the mother. The statute also allows civil litigation to be filed against the father by the maternal grandparents of the viable fetus if the mother is married.

5) Ala. Code § 26-23A-1:13: mandates that all abortions, save for emergency procedures, are subject to requirements including: a 48 waiting period after speaking with the physician, notification of gestational age, must either view or sign statement refusing to view the ultrasound performed.

6) Ala. Code § 26-23C-1:4: no federally funded or supported healthcare program or private insurance that is subsidized through the marketplace that fund abortions of any kind. 

Republican Senator Phil Williams, the person responsible for authoring the bill, stated that although he was pleased that the bill passed, he announced that he “would prefer we announce to the world that Alabama believes life begins at the moment of conception, and we could end all abortion. This bill doesn’t do that” (Brown).

According the statue, viability is defined in the 19th week of gestation and if this timeframe is exceeded, additional steps must be taken in order to certify the non-viable fetus.  However, the American Medical Association notes that it cannot be explicitly determined when the threshold for viability has been met, indicated that the best estimate is likely at some point during the second trimester of the pregnancy. 

Impact of Implementation

Currently, Alabama only has five dedicated abortion clinics throughout the state, two of those are currently located within an area that would now be considered off limits for these types of facilities. The most recent statistics show that nearly 72% of abortions statewide were performed at these two clinics, located in Huntsville and Tuscaloosa (Gattis). In response, Susan Watson, the Executive Director of the American Civil Liberties Union (ACLU) of Alabama, indicated that the ACLU would once again challenge the legislation in court, stating that “this law isn’t about protecting Alabama’s children. It’s about making sure a woman who has decided to have an abortion can’t get one” (Faulk). As it turns out, this isn’t the first time this has happened in Alabama and several other states in regard to increasing regulations surrounding abortion. 

Trends in the United States

This issue is not unique to Alabama, as evidenced by the recent hearing of Whole Woman’s Health v. Helerstedt by the Supreme Court in March of 2016. This case involves the state of Texas and a bill that was passed requiring all physicians performing abortions must have admitting privileges at a local hospital. The same legislative requirement was passed in Alabama, however a federal judge later ruled the requirement unconstitutional.  However, a similar statute in Lousiana was upheld by the United States Court of Appeals, lifting the temporary injunction placed during the hearing. This ruling has essentially ensured the closure of three out of the four clinics within the state (Eckholm). 

In the current Supreme Court case, Planned Parenthood, the ACLU, and other plaintiffs joined together to file suit against the state of Texas, claiming it violated a woman’s right to seek an abortion without undue burden. This provision is a stipulation in the Supreme Court’s opinion in the most influential case, since Roe v. Wade. In the landmark case of Planned Parenthood v. Casey in 1992, the Supreme Court issued an opinion opposing legislative action imposing “undue burden” and invalidating any statute “if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus obtains viability” (834).    The state denies the accusation that the legislation is aimed at limiting abortions, claiming that the new laws are necessary to protect patients. However, several major medical organizations have released statements saying that the measures will not increase patient safety, but will certainly reduce the ability of a woman to obtain a safe abortion (Eckholm). An opinion has not been issued and the decision date is yet to be determined due to the unexpected death of Justice Antonin Scalia. 

The state of Texas also leads the way in new abortion restrictions.  The discovery of fetal genetic testing has given women the ability to determine the health of the fetus in utero. This is typically done when hereditary conditions or other high-risk indicators are present. This type of testing has the ability to determine whether or not the child would be born with specific genetic deficiencies. The state of Texas passed a law in 2015 banning the abortion of a fetus past twenty weeks, including if the child is determined to have severe genetic abnormalities (Martin). According to the Guttmacher Institute, the only exception is if the pregnancy is determined to be medically futile, meaning the fetus will not survive during gestation or would be considered terminal upon birth. 

Ethical Arguments

Opinions on the topic are definitely of a very personal nature, despite it being played out on a national stage. Several academics have turned to arguments of an ethical variety, allowing the emotion to be stripped from the discussion altogether. An article authored by Judith Jarvis-Thomson in 1971, presenting thought-experiments in relation to abortion rights is still being discussed decades later. Jarvis-Thompson offers three unique scenarios which bring into question the fetus’s right to life. In her example of the violinist, Jarvis-Thompson presents a scenario in which a person is medically joined with a famous musician for the use of their kidneys due to the violinist’s ailments. Permission was not granted, but the procedure as already taken place and removing the person now would be fatal for them within days. Jarvis-Thompson asserts that by removing yourself, as the only lifeline for the individual, does not kill the person outright, yet simply removes something that they have no right to in the first place. Similarly, the fetus is akin to the violinist as it using the mother’s body as a life line to which it may be dependent, but it is not entitled. 

This example of ethical determination is one of many and despite what may be the obvious answer to one person, the answer is different for another. The only certainty is that politicians have the obligation to represent the opinions of their constituents, not themselves, their religion or their party affiliation. Theoretically, this would be the popular vote, however, the question then can be posed: does a woman’s neighbor, friend, employer, or even a stranger have the right to vote or express an opinion about her body? It seems obvious that the answer here in the United States is yes since it is a national debate. However, as Jarvis-Thompson pointed out, in an admittedly exaggerated form, setting this kind of precedent could have extended consequences which people must consider when giving their opinion on the medical decision of someone else.

Works Cited

Ala. Code § 13A-13-7. Web. 26 May 2016. http://alisondb.legislature.state.al.us/alison/codeofalabama/1975/coatoc.htm

Ala. Code § 26-21-3. Web. 26 May 2016. http://alisondb.legislature.state.al.us/alison/codeofalabama/1975/coatoc.htm

Ala. Code § 26-22-1:5. Web. 26 May 2016. http://alisondb.legislature.state.al.us/alison/codeofalabama/1975/coatoc.htm

Ala. Code § 26-23-1:6. Web. 26 May 2016. http://alisondb.legislature.state.al.us/alison/codeofalabama/1975/coatoc.htm

Ala. Code § 26-23A-1:13. Web. 26 May 2016. http://alisondb.legislature.state.al.us/alison/codeofalabama/1975/coatoc.htm

Ala. Code § 26-23C-1:4. Web. 26 May 2016. http://alisondb.legislature.state.al.us/alison/codeofalabama/1975/coatoc.htm

"American Law Institute Proposes Abortion Law Reform". Today in Civil Liberties History. N.p., 2013. Web. 3 June 2016. http://todayinclh.com/?event=american-law-institute-proposes-abortion-law-reform

American Medical Association,. Health And Ethics Policies Of The AMA House Of Delegates. 2016. Web. 3 June 2016. http://www.ama-assn.org/ad-com/polfind/Hlth-Ethics.pdf

Brown, Melissa. "Alabama Senate Passes Ban On Abortion Procedure". The Washingtion Times. N.p., 2016. Web. 31 May 2016. http://www.washingtontimes.com/news/2016/apr/26/alabama-senate-passes-ban-on-abortion-procedure/

Eckholm, Erik. "Supreme Court Abortion Case Seen As A Turning Point For Clinics". New York Times. N.p., 2016. Web. 3 June 2016. http://www.nytimes.com/2016/02/25/us/whole-womans-health-v-hellerstedt-supreme-court.html?_r=1

Faulk, Kent. "ACLU: Will Sue Alabama If Bill To Close Abortion Clinics Near Schools Is Enacted". Alabama Media Group. N.p., 2016. Web. 1 June 2016. http://www.al.com/news/birmingham/index.ssf/2016/04/aclu_will_sue_alabama_if_bill.html

Gattis, Paul. "2 Of Alabama's 3 Largest Abortion Clinics May Be Forced To Close". Alabama Media Group. N.p., 2016. Web. 1 June 2016. http://www.al.com/news/index.ssf/2016/05/bentley_signs_abortion_bill_in.html

Leonard, Kimberly. "Alabama Bans Abortion Clinics Near Schools". US News & World Report. N.p., 2016. Web. 1 June 2016. http://www.usnews.com/news/articles/2016-05-13/alabama-bans-abortion-clinics-near-schools

Martin, Brittney. "Texas House Votes To Strike 20-Week Abortion Ban Exception For Fetal Abnormalities". Dallas News. N.p., 2015. Web. 3 June 2016. http://www.dallasnews.com/news/politics/headlines/20150423-texas-house-votes-to-strike-20-week-abortion-ban-exception-for-fetal-abnormalities.ece

"Abortion Timeline". National Right to Life Coalition. N.p., 2016. Web. 3 June 2016. http://www.nrlc.org/archive/abortion/facts/abortiontimeline.html

Planned Parenthood Of Southeaster Pennsylvania Et Al. V. Casey, Governor Of Pennsylvania, Et Al.. Vol 505. 1992. Print.

Roe V. Wade. Vol 410. 1973. Print.

"State Facts About Abortion: Texas". Guttmacher Institute. N.p., 2016. Web. 3 June 2016. https://www.guttmacher.org/fact-sheet/state-facts-about-abortion-texas

"Whole Woman's Health V. Hellerstedt". Oyez | Chicago-Kent College of Law at Illinois Tech. N.p., 2016. Web. 3 June 2016. https://www.oyez.org/cases/2015/15-274