The laws governing abortion are the most controversial in the United States today. The disunity among states regarding these laws, particularly those that define a legal abortion, reflects society’s conflicting views toward abortion.
Abortion laws, as treated here, contain three main parts: a definition of an illegal abortion, a definition of a legal abortion, and a section dealing with consent and/or notice. There are also sections dealing with the penalties for violating the laws, residency requirements, waiting periods, and abortionists’ licensing requirements. These sections are impossible to compare. Because the Supreme Court through inconsistent rulings has caused the laws regulating abortion to be so unsettled, many state legislatures are not enacting any legislation pending the outcome of various lawsuits and federal legislation. Therefore, waiting periods, spousal notification, and other particulars mentioned below are not separately treated because the Court has virtually preempted the states’ power to legislate in these areas. However, these sections are ancillary to those questions regarding the legality of the act itself.
In no state is unrestricted abortion legal; indeed, virtually all states begin with the presumption that abortion is a crime, though all state statutes do have definitions of legal abortions. About twenty states define an illegal abortion in terms of the definition of a legal abortion; for example, Hawaii defines an illegal abortion as failure to meet the criterion of a legal abortion. (The definition of a legal abortion, in Hawaii, is simply the destruction of a nonviable fetus.) About fifteen states, however, predominately in the East and the South, do define illegal abortions without reference to legal instances of abortion. A few of these, interestingly, include in their definitions the provision that if the mother dies, then the abortion is illegal. Of these states, only some have specific statutes defining an illegal abortion; others merely define a legal abortion and impose penalties for their violation. The remaining states have definitions that specifically mention the limits of when an abortion is acceptable. For example, West Virginia defines an illegal abortion as any activity “with intent to destroy an unborn child or produce abortion [or] if mother dies unless to save the mother.”
Legal abortion is universally defined in terms of the mother’s convenience or health. Though few definitions mention the life or health of the fetus, many refer to its “viability” as a standard for when an abortion may be performed with impunity, and without further attempt to define the term. These definitions are objective in that specific time parameters are set, outside of which an abortion cannot legally be done, absent exigent circumstances. The most unrestrictive of all definitions occur in Hawaii and Alaska, where a legal abortion is an abortion on “any nonviable fetus.” Interestingly, the definition of an illegal abortion in these two states is equally open; they say essentially that any act knowingly found to be contrary to the legal definition is illegal. After viability has been established, most states give additional instances when abortion may be legal: to save the life of the mother or if there are severe defects present in the fetus.
Partial Birth Abortion
The procedure called “partial birth abortion” has lately become the subject of numerous state statutes in the wake of the controversial vetoing by President Clinton of a federal bill that would have banned the procedure. The term means an abortion in which the person performing the abortion deliberately and intentionally delivers a living fetus or a substantial portion thereof into the vagina for the purpose of performing a procedure the person knows will kill the fetus, performs the procedure, kills the fetus and completes the delivery. In the last two years, twenty-one states have enacted legislation banning or limiting the practice of this procedure. Recently, the Supreme Court held that Nebraska’s attempt to ban partial-birth abortion was unconstitutional.