ABORTION
EDITED BY CHUNHUI LI, SERENA DINESHKUMAR, MELL CHHOY, LINDSAY SERGI,
MEGAN ROBERTSON, JULIA STURGES, HATTIE PHELPS, AND JESSICA FLYNN
I. INTRODUCTION.......................................... 201
II. FEDERAL ABORTION LAWS ................................. 202
III. OVERTURNING ROE V. WADE ................................ 203
A. THE DOBBS V. JACKSON DECISION ........................ 204
B. LEGISLATIVE PROTECTIONS OF ABORTION ................... 206
C. BANS BASED ON FETAL DEVELOPMENT .................... 207
D. MEDICATION ABORTION BANS AND RESTRICTIONS ............. 208
IV. PUBLIC FUNDING AND ABORTION ............................. 210
A. FEDERAL BANS ON PUBLIC FUNDING FOR ABORTION ........... 211
B. STATE BANS ON PUBLIC FUNDING FOR ABORTION ............. 214
V. FETAL PERSONHOOD ...................................... 214
A. FEDERAL AND STATE FETICIDE LAWS...................... 214
B. FETAL PERSONHOOD, TORT LAW, AND CIVIL CAUSES OF ACTION . . 220
C. FETAL PERSONHOOD UNDER STATE LAW: CONSTITUTIONAL
AMENDMENTS AND LEGISLATION ........................ 222
VI. CONCLUSION ........................................... 224
APPENDIX ................................................. 226
I. INTRODUCTION
The landmark decision of Roe v. Wade, establishing the right to abortion in the
United States,
1
prompted an escalation of the abortion rights dialogue of the
1960s that was propelled on one side by the women’s movement and concerns
about the health implications of illegal abortions and population growth, and on
the other side by pressure from the Catholic Church and political parties.
2
See Stephanie Schorow, Setting the Stage for Roe v. Wade, HARV. GAZETTE (Nov. 5, 2010),
https://perma.cc/T9GG-W27R.
Since
1973, anti-abortion activism has created a complex legal landscape surrounding
the constitutional right to abortion.
3
The Supreme Court retreated from the broad
protection of access to abortion within the first trimester under Roe’s framework
in the early 1990s, establishing an “undue burden” standard in Planned
Parenthood of Southeastern Pennsylvania v. Casey.
4
1. See Roe v. Wade, 410 U.S. 113, 129 (1973), overruled by Dobbs v. Jackson Women’s Health Org.,
2.
3. See generally Roe, 410 U.S. 113.
201
As lower courts struggled to implement the vague Casey standard, anti-abor-
tion activists flooded state and federal legislatures with laws to test the constitu-
5
This decision, which was
leaked in May 2022 and published in June 2022 with minor changes, ended the
federal constitutional guarantee of abortion rights and returned the full power to
regulate abortion care to the states.
6
This Article examines developments within the past eight years in abortion
current landscape of constitutional abortion rights, including federal abortion
legislation that remains post-Dobbs. Part III discusses state trigger bans and state
protections that have come into effect since Dobbs, bans based on fetal develop-
ment, and medication abortion bans and restrictions. Part IV describes restrictions
on the use of federal and state funding for abortion procedures. Finally, Part V
discusses fetal personhood.
II. FEDERAL ABORTION LAWS
In Roe, the Supreme Court held that the right to personal privacy, guaranteed
by the Constitution, included the right to choose to terminate a pregnancy via
abortion.
7
Roe grounded the right to abortion in the right to privacy found in the
penumbras of the Bill of Rights recognized in Griswold v. Connecticut and
Eisenstadt v. Baird.
8
However, the Court also recognized that the right to abortion
is not an absolute right and that certain compelling state interests—primarily pro-
tecting a pregnant person’s health and the potential life of the fetus—justify the
regulation of abortion.
9
These interests influenced the development of the trimes-
ter framework, based on the fetal developmental stages, for determining whether
state regulation is permissible.
10
Under this framework, states gain more regula-
tory authority as a pregnancy progresses.
11
to the states, previous federal cases regarding abortion are no longer good law.
12
5. Dobbs, 142 S. Ct. at 2242.
7. Roe, 410 U.S. at 153.
(1972); Roe, 410 U.S. at 129.
9. Roe, 410 U.S. at 154.
10. The Roe Court held that during the first trimester, the state could not interfere with a pregnant
regulations “reasonably related to maternal health” were permissible, but the state still could not prohibit
an individual from obtaining an abortion. Id. Once the fetus reaches viability at the end of the second
trimester, the state’s interest in the potential human life permitted outlawing abortions except when the
202 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. 25:201
However, federal legislation, such as the Hyde Amendment and the Partial Birth
Abortion Ban Act (PBABA), remain in effect.
13
Amendment, which limits the use of Medicaid funds to reimburse the cost of
abortion care.
14
The Court upheld the constitutionality of the Hyde Amendment
in Harris v. McCrae.
15
In 2003, Congress passed the PBABA, which prohibits the intentional perform-
ance of partial-birth abortions that are not necessary to save the life of the preg-
nant person.
16
The Supreme Court found the PBABA constitutional, with Justice
Kennedy writing for the majority, in Gonzales v. Carhart.
17
The Court relied on
the government’s ability to restrict abortions once the fetus reaches viability, as
well as the government’s interest in the life of the fetus.
18
The government’s
“legitimate and substantial interest in preserving and promoting fetal life” was eluci-
dated in Casey: the government had an interest in distinguishing between the poten-
tial undue burden on a pregnant person’s ability to have an abortion and the State’s
interest in expressing profound respect for the life of the unborn.
19
The Court’s pri-
mary focus in upholding the PBABA was on the state’s interest in protecting the
potential life of the fetus. Today, the PBABA is valid law and prohibits dilation and
extraction (D&X) abortions.
20
As of 2023, abortion is no longer a constitutional right.
21
Since 2022, it has
been up to the states to decide whether to protect the right to abortion.
22
III. OVERTURNING ROE V. WADE
When the Supreme Court overturned Roe, it did not outlaw abortion; instead,
the Dobbs decision allows states to determine the legality of abortion proce-
dures.
23
The Dobbs Court upheld a Mississippi law banning abortion after fifteen
weeks of pregnancy.
24
After the Dobbs opinion leaked, certain states announced
plans to outlaw abortion by passing trigger laws that would come into effect once
Dobbs was made official.
25
Tierney Sneed, Some States Move Quickly to Ban Abortion After Supreme Court Ruling, CNN
(June 25, 2022, 8:38 PM), https://perma.cc/63JG-7UY7.
Other states, however, enacted laws protecting access
13. See id. at 2280–81.
14. Hyde Amendment, Pub. L. No. 94–439, § 209, 90 Stat. 1418, 1434 (1976); see also Further
Consol. Appropriations Act of 2020, Pub. L. No. 116–94, 133 Stat. 2534, 2579 (2019).
16. See Act of Nov. 5, 2003, Pub. L. No. 108–105, 117 Stat. 1206 (2003) (codified at 18 U.S.C.
§ 1531(a)).
18. Id. at 145–46 (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846 (1992)).
19. Id.
20. 18 U.S.C. § 1531(a).
23. Id.
25.
2024] ABORTION 203
