Prior to 1973 and the Roe v. Wade decision by the Supreme Court (410 U.S. 113 (1973)), the regulation of abortion was left to the states. In Roe v. Wade, the Supreme Court decided that the Constitution protected a woman’s right to abortion, a novel right said to be found in the unstated right to privacy, from state regulation during the first trimester of pregnancy. However, the Court also held that the states have an “important and legitimate interest in protecting the potentiality of human life.” The abortion controversy has revolved around the states’ consequent attempts to protect unborn life. The Supreme Court’s patchwork of opinions following Roe has left abortion a highly unsettled area of law. Many statutes reflect state attempts at balancing a woman’s right to choose an abortion with the state’s compelling interest in protecting fetal life.
The statutes in this chapter are as they currently appear in the state codes. Interestingly enough, some of the statutes may be unconstitutional if challenged, based on prior Supreme Court rulings. Following are the general areas of abortion legislation and the Supreme Court’s treatment of each:
- Parental Consent. States may require a minor seeking an abortion to obtain the consent of a parent or guardian as long as there is an adequate judicial bypass procedure.
- Informed Consent. A state may require a physician to provide a woman with such information such as alternatives to abortion, sources of financial aid, development of the child, and the gestational age of the child. Prior to 1992, informed consent provisions were unconstitutional.
- Spousal Consent. A state may not require a married woman to obtain her husband’s consent before undergoing an abortion.
- Abortion Method. A state may not require the physician performing the abortion to use the technique providing for the best opportunity for the unborn child to survive the abortion.
- Second Physician. A state may not require that a second physician attend the abortion to take immediate control of the care of a child born alive in an abortion unless the provision has an exception for a situation when the health of the mother was endangered.
- Waiting Period. A twenty-four hour waiting period does not constitute an undue burden on a woman’s decision to abort and, therefore, is constitutional. Prior to 1992, waiting period requirements were unconstitutional.
- Parental Notice. A state may require that one parent be notified of a minor’s abortion, but not two.
- Fetal Remains. States may not require that the remains of the unborn child are disposed of in a “humane and sanitary” manner as it may suggest a mandate for some sort of “decent burial.”