Abortion: Legislative Response Page: 4 of 19
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IB95095
MOST RECENT DEVELOPMENTS
On March 28, 2005, the U.S. Supreme Court declined to review Planned Parenthood
of Idaho v. Wasden, 376 F.3d 908 (9th Cir. 2004), a case involving Idaho's parental consent
statute. The U.S. Court of Appeals for the Ninth Circuit found that the statute was
unconstitutional based on its health exception for the performance of an abortion without
parental consent or a court order when a medical emergency existed. The court maintained
that the statute's definition of the term "medical emergency" was "unconstitutionally
narrow." Medical conditions that would require an immediate abortion to preserve a
woman's life or health would not be considered a medical emergency for purposes of the
statute. The court invalidated the statute after concluding that the health exception could not
be adequately severed from the rest of the statute.
BACKGROUND AND ANALYSIS
Judicial History
The primary focus of this issue brief is legislative action with respect to abortion.
However, discussion of the various legislative proposals necessarily involves a brief
discussion of the leading U.S. Supreme Court decisions concerning a woman's right to
choose whether to terminate her pregnancy. For a more detailed discussion of the relevant
case law, see CRS Report 95-724, Abortion Law Development: A Brief Overview.
Roe v. Wade and Doe v. Bolton
In 1973, the Supreme Court issued its landmark abortion rulings in Roe v. Wade, 410
U.S. 113 (1973), and Doe v. Bolton, 410 U.S. 179 (1973). In those cases, the Court found
that Texas and Georgia statutes regulating abortion interfered to an unconstitutional extent
with a woman's right to decide whether to terminate her pregnancy. The Texas statute
forbade all abortions not necessary "for the purpose of saving the life of the mother." The
Georgia enactment permitted abortions when continued pregnancy seriously threatened the
woman's life or health, when the fetus was very likely to have severe birth defects, or when
the pregnancy resulted from rape. The Georgia statute required, however, that abortions be
performed only at accredited hospitals and only after approval by a hospital committee and
two consulting physicians.
The Court's decisions were delivered by Justice Blackmun for himself and six other
Justices. Justices White and Rehnquist dissented. The Court ruled that states may not
categorically proscribe abortions by making their performance a crime, and that states may
not make abortions unnecessarily difficult to obtain by prescribing elaborate procedural
guidelines. The constitutional basis for the decisions rested upon the conclusion that the
Fourteenth Amendment right of personal privacy embraced a woman's decision whether to
carry a pregnancy to term. Regarding the scope of that privacy right, the Court stated that
it included "only personal rights that can be deemed 'fundamental' or 'implicit in the concept
of ordered liberty"' and "bears some extension to activities related to marriage, procreation,
contraception, family relationship, and child rearing and education." Roe v. Wade, 410 U.S.CRS-1
04-05-05
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Lewis, Karen J.; Shimabukuro, Jon O. & Ely, Dana. Abortion: Legislative Response, report, April 5, 2005; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc820435/m1/4/: accessed July 17, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.