Abortion in America

Abstract

In Roe v. Wade,1 which was ctecided in 1973, the Supreme Court of the United States held that prior to the viability of a fetus, a woman had a constitutional right to terminate a pregnancy by having an abortion. The decision brought a storm of protest and, from the beginning, efforts were made both in the political arena and through litigation to overrule the decision. Equally vehement forces soon organized to preserve the decision under a "prochoice" banner. A number of subsequent judgments by the Supreme Court gave those seeking to reverse Roe v. Wade sorne cause to believe that their hopes would be realized. In Maher v. Roe the Court held that the govemment could choose to defray the medical costs of childbirth while refusing to fund non-therapeutic abortions. In Thornburgh v. American College of Obstetricians a divided court reaffirmed the principles of Roe v. Wade. In Thornburgh, Justice O'Connor, writing in dissent, argued that the State has compelling interests, in both maternal health and potential human life, which continue throughout a pregnancy. She insisted that the fundamental rights jurisprudence of the Court limited judicial scrutiny to a detennination of whether state laws infringing upon liberty had a rational relation to the legitimate interests which the state was entitled to protect. More exacting scrutiny should, in her view, be reserved for situations where a state regulation posed an undue burden upon an abortion decision. Such a burden would exist only where there were absolute obstacles to, or severe limits upon, the pregnant woman's choice.