ABORTION IN USA

THE MAIN FOCUS

The main focus is in the differences between the USA model and European models
in view on the abortion.
E.g. USA Laws permit abortion in all the circumstances except when the senate has
deemed it may not be allowed in order to prevail mothers health /
Italian Law doesnt permit abortion, except in case parliament has deemed it is
reasonable to do so (e.g. threat for mothers life or health). In Italy, abortion is
possible in the first trimester and only if it threatens her mental of physical health, but
mental health is considered very widely. Women has to wait 7 days after notifying the
physician about the decision, except for the emergent physical condition. Also, doctor
need to inform the patient about the possible social funding for carrying out the
abortion.

The evolution of Abortion in USA

In the past abortion was criminalized

Roe v. Wade, 410 U.S. 113 (1973) the Court ruled that a right to privacy under the
Due Process Clause of the 14th Amendment extended to a woman's decision to have
an abortion, but that this right must be balanced against the state's two legitimate
interests in regulating abortions: protecting women's health and protecting the
potentiality of human life.
Background: A pregnant single woman (Roe) brought a class action challenging the
constitutionality of the Texas criminal abortion laws, which proscribe procuring or
attempting an abortion except on medical advice for the purpose of saving the
mother's life. In 1969, at the age od 21, while working low-paying jobs and living with
her father, McCorvey became pregnant a third time. She had difficult time growing up
in abusive childhood, being raped as a teenager, married at age of 16 to the abusive
husband etc. McCorvey never had an abortion and have given the birth to a girl who
was given up for adoption.
Art. 1191 Texas penal Code Abortion: If any person shall [] procure an abortion,
he shall be confined in the penitentiary not less than two nor more than five years; if it
is done without her consent, the punishment shall be doubled.

The legal standing: Roe was pregnant when she took the legal action the usual
rule in federal cases is that an actual controversy must exist at stages of appellate or
certiorari review, and not simply at the date the action is initiated But till the Court

reached the judgment, Roe was no longer pregnant as she gave a birth to a girl.
her case was then suggested to be mooted as she is no longer subject to any 1970
pregnancy. However, the Supreme Court did not reject the case for not having the
legal standing. The Court noted that normal 266-day human gestation period is so
short that pregnancy will come to term before the usual appellate process is
complete and that USA laws should not be that rigid to dismiss the case for the
reasons of losing the legal standing of the case.
At the same time, Due Process Clause of the 14 th Amendment was challenged (it
protected against state action the right to privacy, including a womans qualified right
to terminate her pregnancy). ruled that unborn is not a person in that sense, but
the right to privacy is not absolute as well limited when compelling state interest!
Reasoning
The Court sees its role to issuing constitutional measurement, free of emotion and
predilection, so regardless of the fact the Court is made for people with different
opinions and the accident that sometimes people find someones opinion natural and
familiar or novel and shocking, embodying them doesnt mean they are not
constitutional.

Prenatal life Vs. Right to privacy of the women

The right to privacy is broad enough to encompass a womans right to terminate the
pregnancy. but it can be restricted by the state in case there is specific and direct
harm medically diagnosable; distressful life forced upon a mother or offspring in the
future. Special approach to the unwanted child where the state decides the approval
of abortion only if the care system provided by the state is held inadequate to
alleviate distressful life conditions.
3 stages of pregnancy:
1) Stage prior to approximately the end of the first trimester the abortion
decision is left to the medical judgement of the pregnant womans attending
the physician.
2) Stage subsequent to approximately the end of the first trimester the State
may regulate the abortion in ways that are reasonably related to maternal
health
3) Stage subsequent to viability the State may proscribe abortion in case of
preservation of the life or health of the mother
So, the right to abortion is the federal constitutional right and it is permitted for any
reason before the viability.

1992: Planned Parenthood v. Casey, 505 U.S. 833: In USA, if women who wants to
terminate pregnancy if she is married, the permission of the husband is required. And
there is also a reflection of 24 hours (wait of 24 hours after women notifies her
physician about her decision for possible rethinking of the decision), report

requirement, notification of parents in case of minors and terminating pregnancy in

the emergency case. In this case, its been challenged and The Court here admits
a burden on the women. Liberty of women in at the stake. The case decided by the
Supreme Court of the United States in which the constitutionality of several
Pennsylvania state statutory provisions regarding abortion were challenged. The
case was a turn from the Roe v. Wade decision to instead reflect the individual's
choice in abortion as a responsibility to the community. Its aim was to make the
woman's decision more thoughtful and thorough in theory. The District Court, after a
three-day bench trial, held that all the provisions were unconstitutional and entered a
permanent injunction against Pennsylvania's enforcement of them.
However, thought the woman has a right to choose to terminate her pregnancy
before viability, it does not at all follow that the State is prohibited from taking steps to
ensure that this choice is thoughtful and informed. State is allowed to undertake
measures (counselling and similar) for the pregnant women who want to terminate
the pregnancy.
The central holding of Roe V. Wade is not overruled, but the idea of privacy is
changed.