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Modes of Regulation

When it comes to deciding upon the general structure of abortion regulation, the law has a whole menu of options from which to choose. Abortion can be criminalized in its entirety, or decriminalized only where specific circumstances are made out, as it is under the Abortion Act 1967 in England, Wales,

Arguments about Abortion: Personhood, Morality, and Law. First Edition. Kate Greasley. © K. Greasley 2017. Published 2017 by Oxford University Press.

and Scotland. The British legislation, introduced in order to legalize abortions deemed socially acceptable, operates by providing exceptions to default criminal liability for abortion where certain specified grounds are attested to by two doctors. Those grounds become stricter once the pregnancy has surpassed its twenty-fourth week.

A law of abortion which begins with default criminal liability and carves out exceptions can make those exceptions narrow or broad, numerous or few. Moreover, a lot depends on how much is open to interpretation. Some would argue that the liberal construction by medical professionals of ground 1(1)(a) of the Abortion Act in the years since its enactment has resulted in something close to ‘abortion on demand’ before twenty-four weeks of pregnancy. The ground provides that no one shall be criminally liable for an abortion where two registered practitioners form the good faith opinion that continuing the pregnancy poses a risk to a woman’s ‘physical or mental health’, ‘greater than if the pregnancy were terminated’.1 As it happens, medical professionals in Britain have interpreted this ground widely and do not, for example, insist on demonstrable proof that continued pregnancy will cause a woman clinical depression or another medically recognized psychiatric condition before agreeing that a ‘mental health’ ground is made out. But it is easy to see how things might be very different. By placing the interpretive and decisionmaking power in the hands of medical professionals, the Abortion Act effectively made the medical profession the gatekeepers of legal abortion in Britain.2 While this has resulted in a fairly permissive abortion practice today, a significant shift in medical opinion about abortion morality is all that it would take to completely overhaul this open practice.

A different kind of permissive abortion law might regulate only the medical procedures used in abortion to ensure standards of health and safety, leaving the decision to terminate entirely to women, either independently or in consultation with their doctors. This, in effect, would be to repeal all abortion law entirely, leaving the practice subject only to the general standards of care applicable to all medical practice. It would be to adopt a policy of complete non-interference with respect to abortion provision.

Differently again, access to abortion could be construed as a constitutional or human right within a legal system, or necessary for the fulfilment of some broader right, such as the right to privacy or procreative control. This, in essence, is the legal position on abortion in the United States as declared in the landmark decision Roe v Wade in 1973. In this alternative, the law does interfere, but on behalf of those who wish to obtain abortions. It might do so by placing principled legal limits on the kinds of restrictions on abortion that can be constitutionally valid, as in the US system, or, even, by making safe abortion provision a state obligation, something which Roe v Wade did not do. [1] [2]

An important point to make here is that jurisdictions adopting very different structures of regulation might not necessarily differ all that much in terms of the practical availability of abortion. The comparative accessibility of abortion under markedly different regulatory regimes could even be the opposite of that which we expect. In Britain, as I said, abortion is a criminal offence unless one of the grounds in the Abortion Act applies. In the United States, on the other hand, the starting point is that the right to termination is a protected constitutional right. Nevertheless, abortion is more reliably accessible in Britain than it is in many parts of the United States. This owes largely to the fact that individual states are under no legal obligation to provide abortion services, even though the liberty to terminate is protected under the Constitution. This leaves practical abortion access highly dependent on the wishes, and, hence, ideology, of each individual state, many of which are far more antagonistic to abortion practice than is generally true of Britain. In the United States, the substantive right to abortion is therefore largely dependent on geography.

This brings into the foreground the important difference between the substantive freedom to obtain an abortion and a bare legal liberty to abort, where abortion is merely decriminalized but not provided for. Whether or not the abortion ‘right’ is formally recognized, one clear condition for the substantive freedom to abort is state provision of abortion through funding or services. Repeal of all abortion laws will not produce meaningful reproductive freedom if the only abortion services available are expensive or far away—or rather, that freedom will only exist for a select few. State funding of legal abortions in Britain (many abortions are funded by the National Health Service) probably does far more to facilitate abortion access than the default criminalization of abortion does to hinder it. Since Roe, the question of state and federal funding for abortions has been a key battleground of abortion politics in the United States, with the Supreme Court demonstrating unwillingness to read into the right to termination a positive obligation on governments to provide it. This was seen most unequivocally in the 1983 decision Harris v McRae, when the Court upheld the constitutionality of the 1977 Hyde Amendment which barred the use of US Medicaid funds for abortions, except where the woman’s life is in danger or in cases of rape or incest.[3]

The restriction on the substantive freedom to abort in the United States has also been greatly compounded by the fact that the central ruling in Roe v Wade (that a woman has a fundamental right to termination of pregnancy) was subsequently held to be compatible with a large number of state-level restrictions on abortion access. This is because the Supreme Court in Roe did not recognize an unqualified right to an abortion. Rather, it held that states could have a legitimate interest in ‘protecting potential life’, and that they were entitled to restrict abortion where that interest becomes ‘compelling’. The Roe Court determined that the interest in protecting fetal life did not become compelling until the third trimester of pregnancy, when the fetus is capable of living independently from the pregnant woman. Thus, states were permitted to proscribe abortion in the third trimester of pregnancy, when the fetus was presumed to be viable, except where abortion was necessary to preserve the health and life of the pregnant woman. The Court also held that states could cite a legitimate interest in enacting restrictions for the protection of the health and safety of pregnant women, although this interest did not become ‘compelling’ until the second trimester. Abortion restrictions in the second trimester were therefore also constitutionally valid, but only if they were in the service of protecting women’s health. In the first trimester, where no compelling state interest in restrictions could be adduced, it was held that women must be free to make abortion decisions in consultation with their doctors and without state restrictions—although, as was clarified in Roe’s companion case Doe v Bolton,[4] [5] this did not amount to a constitutional right to ‘abortion on demand’.

The ‘trimester framework’ for constitutional review of abortion regulation established in Roe was notably replaced in 1992 by the decision in Planned Parenthood of Southeastern Pennsylvania v Casey.5 The Casey decision affirmed Roe’s central ruling that the right to a termination could be construed out of the constitutional right to privacy under the Ninth and Fourteenth Amendments, but replaced the trimester framework with a different structure of constitutional scrutiny, one which required only that state restriction of abortion prior to fetal viability did not place an ‘undue burden’ on a woman’s right to procreative autonomy through the imposition of a ‘substantial obstacle’ to abortion access. Like Roe, Casey underscored fetal viability as the threshold beyond which the state’s interest in protecting fetal life became ‘compelling’, and at which point states were therefore at liberty to prohibit abortion, so long as they provided exceptions where the health or life of the pregnant woman was at risk.

The abortion right in the United States is therefore far from unqualified. Since the Roe decision, the Supreme Court has upheld the legal validity of an array of state restrictions on abortion provision, including in the Casey decision itself. There, the Court upheld pre-abortion mandatory waiting periods, counselling requirements, and parental consent requirements for minors contained in the Pennsylvania law under consideration, invalidating only a spousal notification requirement which it deemed placed an ‘undue burden’ on women seeking abortion. Since then, the Court has upheld the constitutionality of further state regulations and, in Gonzales v Carhart, a near-absolute federal ban on ‘partial-birth abortion’, the extremely controversial method of late abortion during which the fetus is partially extracted from the uterus before being killed and fully extracted (briefly described in chapter 2).[6] Decisions such as these have had the effect of scaling back the abortion right established in Roe in many states.

More recently, numerous state legislatures have managed to significantly restrict access to abortion by enacting what have come to be known as Targeted Regulation of Abortion Providers (TRAP) laws—extremely onerous licensing requirements that have resulted in the shutting down of many abortion clinics. Examples of TRAP law regulations include mandatory minimum hall widths that are the same as are required for hospitals, formal associations with hospitals that are often difficult to obtain, practitioner accreditation requirements beyond the level of skill required for performing abortions, and a whole number of facility standards based on those for hospitals and emergency rooms, the attainment of which would be effectively bankrupting for abortion clinics. In the recent case Whole Woman’s Health v Hellerstedt, the Supreme Court struck down two such provisions in one of Texas’s TRAP laws that had resulted in the closure of numerous clinics.[7] It was held that the requirements placed an undue burden on women seeking abortions, in breach of the Casey standard, by operating in effect to close down Texas abortion clinics and force women instead to travel hundreds of miles in order to obtain an abortion from the clinics left open, or even to go out of state.

In a similar vein, so-called ‘informed consent’ or women’s ‘right to know’ laws have had the effect of restricting the ease of abortion access. Provisions of the kind typically include mandatory pre-abortion ultrasound scanning and information requirements that attempt to dissuade women out of choosing abortion by requiring medical staff to show them and/or describe to them the anatomy of their fetus, under the aegis of ‘informed consent’ to the abortion procedure.[8] Some ‘right to know’ laws have been struck down by state constitutional courts, although the mandatory ultrasound requirements have yet to be subject to constitutional review by the US Supreme Court.

Contrasting the British and US contexts clearly demonstrates that the availability of abortion in a jurisdiction depends on far more than the basic structure of abortion regulation. Despite the default criminalization of abortion in Britain, convictions for abortions performed are almost non-existent,[9] and abortion is easily accessible, especially before twenty-four weeks, owing to the liberal interpretation of the Abortion Act by the medical profession. In the United States, by contrast, abortion access continues to be patchy, and practically non-existent in some states, despite the constitutionalization of abortion rights.

Considering this contrast, supporters of abortion rights might understandably find themselves unsure about which regulatory framework is most conducive to reproductive choice. Political temperature can determine far more than formal abortion law, and the optimal regulatory framework for securing the substantive abortion right will likely be jurisdiction-specific.

  • [1] Abortion Act 1967, s 1(1)(a).
  • [2] See generally, Sally Sheldon, Beyond Control: Medical Power, Women and Abortion Law (PlutoPress 1997).
  • [3] Harris v McRae 448 US 297 (1980). The Court ruled that the Hyde Amendment was constitutional because it did not place an obstacle in the way of a woman who wanted a termination, butinstead just encouraged an alternative choice. On the matter of public funding for abortion provision,see also: Beal v Doe 432 US 438 (1977); Maher v Roe 432 US 464 (1977); and Webster v ReproductiveHealth Services 492 US 490 (1989).
  • [4] Doe v Bolton 410 US 179 (1973).
  • [5] Planned Parenthood of Southeastern Pennsylvania v Casey 505 US 833 (1992).
  • [6] See Gonzales v Carhart 550 US 124 (2007).
  • [7] Whole Woman's Health v Hellerstedt 579 US_(2016).
  • [8] For a good description of different state versions of the law, see Carol Sanger, ‘Seeing andBelieving: Mandatory Ultrasound and the Path to a Protected Choice’ (2008) 56 UCLA Law Review351. Some states require the provider to show and describe the image; others provide that she maydecline to see or look away, though her decision to do so must be recorded. The Texas version of the lawrequires the practitioner to make the fetus’s heartbeat audible to the pregnant woman.
  • [9] One notable exception is R v Smith [1974] 1 All ER 376, where a doctor was convicted of illegallyperforming an abortion after the jury found that he had not acted in good faith to preserve the health ofthe woman. The evidence in the case suggested that the doctor had made no examination of the patientor inquired into her personal history or situation. It was also unclear whether the doctor who had giventhe second opinion had examined the patient.
 
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