Family Law

Abortion and the Law

There are no uniform codes or model acts that govern abortion law, and each state is free to create laws that govern abortion within its own borders. With respect to Supreme Court rulings and federal legislation, there remains wide diversity among states regarding the interpretation and implementation of abortion rights and restrictions.

Landmark Cases

Prior to the Supreme Court ruling in Roe v. Wade in 1973, any state was free to make laws restricting or banning abortion. However, the Supreme Court ruled that banning abortion was unconstitutional, and a woman’s right to privacy, derived from the Fourteenth Amendment, included the right to have an abortion. Nevertheless, what the court did not say also impacted the state’s rights in a way that caused disunity from state to state. The Court did not say that a woman had a right to an abortion at any point in her pregnancy for any reason. Indeed, the Court acknowledged and affirmed that a state had the right to restrict abortions when fetal viability had been reached. An additional Supreme Court ruling in Planned Parenthood v. Casey (1992) prohibits a state from placing an undue burden on a woman seeking an abortion.

Federal Legislation

Two federal laws additionally impact abortion rights:

The Partial Birth Abortion Ban Act was signed into law by George W. Bush in 2003. This procedure involves the partial birth and killing of a fetus before completing full delivery.

The Unborn Victims of Violence Act also signed into law by President Bush in2004 recognizes the fetus as an “unborn child.” Many states have also adopted the concept of the “unborn child” as victims of violence and murder. Twenty-seven states define “unborn child” as a child at all stages of prenatal development. Nine additional states define “unborn child” using various standards.

Disunity among States

Language and definitions are frequently an issue when legislation is enacted or when laws are challenged in court. Judicial rulings, such as Roe v. Wade and other case law determining constitutionality and addressing issues such as “State’s rights”,  “undue burden” and “right to privacy” are complex and less than definitive in many cases. This intrinsic problem with language and interpretation of intent among other things lead to variations among state laws.

In matters of human life and personhood, the Supreme Court has declined to identify when life begins. Although there is a standard of viability, the care of preterm babies has continued to improve the viability. State laws that define viability will continue to face challenges. Furthermore, some states have tried to pass “personhood” legislation to give rights to unborn babies.

Laws that strictly regulate physicians and abortion providers, while not specifically addressing abortion, have been enacted in some states to limit the availability of abortions. For states wishing to limit abortion, this has become one method of doing so. These regulations and restrictions continue to face legal opposition from pro-choice advocates who often use the “undue burden” doctrine as a challenge.

All abortions are not necessarily legal. Various state laws have articles within their abortion statutes that define illegal abortion. Some are very broad, stating that any abortion that does not comply with the statutory requirements of legal abortion is illegal. West Virginia law has a more restrictive definition included in its criminal code stating that any abortion procedure other than that to save the life of the mother or child is illegal and is a felony.

Although the Supreme Court restricted states from banning abortion, there is no federal law that prohibits states from making law to further regulate abortion. States will continue to implement laws to regulate abortion according to the wishes of their citizens through the state legislative process.


Jonathan Sheridan is a freelance writer focusing on legal topics such as Family Law, Sexual Abuse of Children, DUI & Criminal Defense, Intellectual Property and other areas.