A Brief Guide to United States Abortion Law

  • Abigail Kime
  • 10/18/2021

Photo by Claire Anderson on Unsplash

On January 22, 1973, the Supreme Court condemned millions of people to death (62 million to date) with their Roe v. Wade decision. [1] However, Americans remain largely illiterate in the Supreme Court Cases surrounding abortion. 

What does the Constitution say about abortion? How does the Supreme Court justify their abortion rulings? Where did current abortion law begin? How has it evolved?

We must understand these questions in order to more fully understand the impact of the Supreme Court’s decisions and develop a strategy for ending abortion.

The following provides a brief guide (the facts, reasoning, and flaws) to the three main Supreme Court cases governing today’s abortion law.

Griswold v. Connecticut: June 7, 1965

A Connecticut law prohibited the use of contraceptives. When challenged, the court ruled the law to be unconstitutional when dealing with contraceptive use by married couples. 

The Ninth Amendment clarifies that there are certain rights guaranteed to the people that are not expressly included in the Constitution. In this case, the Court established that the right to privacy was among those unwritten rights. “We deal with a right to privacy older than the Bill of Rights … marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” [2]

The Court used this idea of the right to privacy to justify their ruling in Roe v. Wade eight years later. 

Roe v. Wade: January 22, 1973

By 1973, abortion law varied among states. “Jane Roe” challenged a Texas law that banned abortions except in cases where the mother’s life is in danger. 

In an unprecedented display of power and judicial legislation, the Court ruled that abortion was a fundamental right, that a woman had the constitutional right to end the life of her child in the womb. But where is this right in the Constitution?

The Court claimed that the decision to abort fell under a woman’s right to privacy. They failed, however, to explain how abortion falls under a zone of privacy. Sexual relations between consenting adults are obviously private acts. But ending the life of a human child, while undoubtedly a difficult and life-altering decision, involves a defenseless third party. That third party and the fact that abortion is fatal to the third party pushes abortion outside the scope of privacy. 

The Court reviewed the story of abortion and claimed that the existence of abortion throughout United States history helped justify abortion as a protected right. However, the existence of an act throughout history in varying degrees does not mean that the act is protected on the constitutional level.

The Court then sympathizes with the idea that not allowing women to kill their child in the womb will force women into “distressful” lives, but no evidence is provided to support this claim. [3] To tell women they must kill their children to avoid a distressful life, that killing their child is worth it to avoid difficulties that arise from carrying and raising a child is one of the ugliest conclusions written in Supreme Court law. 

Hardship and difficulty are conditions of life that no one can escape. The fact that something may be difficult, or cause distress, does not make the harming of an innocent human being constitutional. 

Perhaps the most incredible statement by the Court was, “We need not resolve the difficult question of when life begins.” [3] Isn’t that the one question that needs to be resolved? The Court completely dismisses the consideration of personhood in abortion law and, in doing so, sets a dangerous precedence: priority will go to the feelings and opinions of the vocal crowd over the rights and lives of the vulnerable and weak. 

In Roe v. Wade, the state of Texas argued that “the fetus is a ‘person’ within the language and meaning of the Fourteenth Amendment.” Justice Harry Blackmun responded to this in his majority opinion, saying, “If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment." [4] When Roe was decided, we lacked many technologies that now help us see the humanity—and therefore, personhood—of preborn children. We can get a further glimpse into life in the womb today than we could in 1973. The Supreme Court should reconsider the decision in Roe v. Wade with this information in mind. 

Roe v. Wade created a framework dictating the type of restrictions that can be placed on abortion, but the framework was reworked twenty years later.

Planned Parenthood v. Casey: April 22, 1992

The ruling in Roe v. Wade was altered in Planned Parenthood v. Casey. The challenged law included provisions requiring that a woman give informed consent, a married woman notify her husband, and a minor obtain parental consent before obtaining an abortion. This case reaffirmed the central ruling in Roe v. Wade that abortion was a constitutional right but redefined what restrictions states can place on abortion. 

Abortion could now be completely restricted after viability in the state’s “interest in the potentiality of human life.” [5] The Court stated that pre-viability restrictions can help to inform and protect the health of a mother but cannot place on undue burden on ability to obtain the abortion. 

Placing the line of protection at viability is an arbitrary standard with dangerous implications. Claiming that a state’s interest in human life only starts at viability is equally dangerous. 

Viability changes based upon both location and time. As medicine advances,  the invisible line of viability will continue to move to earlier and earlier points in pregnancy. Saying that the value of a fetus changes based upon an arbitrary concept of viability is to say that the value of a fetus changes based upon available technology. With this, babies in affluent areas will be viable much sooner than babies in poor areas. [6]

It is also impossible to say for certain which babies in the womb are or are not viable outside the womb. Richard Hutchinson, who was born at 21 weeks and weighing just over 11 ounces, was given a 0% chance of survival. He just celebrated his first birthday this year. [7]

If the Court can decide which lives are worthy of protection based upon this arbitrary standard of viability, they can draw the line anywhere—even at points after birth. The Court, in these decisions, created an arbitrary standard by which the worthiness of human life is now evaluated in United States law.

Where are we now? 

Abortion is still considered a constitutional right. The framework of restrictions from Planned Parenthood v. Casey still stands. Millions of children are still brutally killed in the womb. 

The Supreme Court rulings establishing and enabling abortion are not rooted in the Constitution, but in the opinions and political preferences of Supreme Court justices. There is no right to abortion in the Constitution.

Pro-Life Utah works to protect women and children from the harmful effects of abortion. In our efforts, we support women in crisis, assist women post-abortion, and advocate for pro-life legislation. Please consider making a donation so that we can continue in our life-saving advocacy. 

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1. https://www.foxnews.com/politics/abortions-since-roe-v-wade

2. https://supreme.justia.com/cases/federal/us/381/479/

3. https://supreme.justia.com/cases/federal/us/410/113/

4. https://pubmed.ncbi.nlm.nih.gov/20443281/

5. https://supreme.justia.com/cases/federal/us/505/833/

6. https://www.liveaction.org/news/three-reasons-viability-rule-abortion-unsound/

7. https://www.guinnessworldrecords.com/news/2021/6/worlds-most-premature-baby-given-0-odds-of-survival-celebrates-first-birthday-663394

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