U.S One of Four Nations to OK Late-Term Abortions for Any Reason

Opinion   |   Americans United for Life Legal Team   |   Oct 8, 2012   |   1:43PM   |   Washington, DC

Planned Parenthood Works to Maintain U.S. Position as One of Four Nations in the World with the Most Radical Pro-Abortion Policies

As Planned Parenthood prepares to celebrate its 96th birthday in October, Americans United for Life launches a month-long series of revelations – the release of “The Planned Parenthood Exhibits,” the continuing case for investigating the nation’s largest abortion provider. Each day in the month of October, AUL will release a new backgrounder that highlights grounds for investigating and, ultimately, de-funding Planned Parenthood, which receives more than one million dollars a day in taxpayer subsidies.

Although abortion is undoubtedly a controversial issue, there are significant areas of abortion policy on which Americans broadly agree. For instance, a 2011 Gallup poll found that an “especially large percentage” of both “self-described ‘pro-choice’ and ‘pro-life’ Americans” supports making abortion illegal in the third trimester.[i] However, against this area of clear common ground, Planned Parenthood has worked vigorously to oppose late-term abortion bans.

In so doing, Planned Parenthood is more than just outside mainstream American values. Its effort to preserve an abortion-on-demand policy through all nine months of pregnancy is out of step with the global community.

In 1973, the U.S. Supreme Court in Roe v. Wade (and its companion case Doe v. Bolton) “constitutionalized” abortion, nullifying the abortion laws of all 50 states. As a result, the United States is currently one of only nine nations that allow abortion after 14 weeks of gestation.[ii] Even among this group, however, the United States is one of the most permissive in its treatment of abortion, placing it in the company of China, North Korea, and Canada, the only countries in the world that permit abortion for any reason after fetal viability.[iii]

Planned Parenthood is committed to ensuring that the United States stays in this “select” group of countries whose laws allow abortion at any time, for any reason.

Abortion-on-Demand in the United States

Four decades after it was decided, Roe v. Wade remains controversial. However, while a majority of Americans say that they are familiar with Roe, polling demonstrates that most do not understand the extent of what the Court’s decision permits.[iv]

In Roe,[v] by a 7-2 vote, the Court struck down a Texas law that prohibited abortion except where necessary to preserve maternal life. The opinion, written by Justice Harry Blackmun, held that the “right to privacy” (supposedly found in the “penumbras” of the Fourteenth Amendment’s liberty interest) includes a right of a woman to decide “whether or not to terminate her pregnancy.”

In Doe v. Bolton,[vi] decided the same day as Roe, and also written by Justice Blackmun, the Court invalidated a Georgia abortion law by a vote of 7-2. Significantly, the Doe opinion created an unlimited definition of maternal “health.” The Court wrote, “[T]he medical judgment may be exercised in the light of all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the well being of the patient. All these factors may relate to health.” The Court held that the abortionist alone was allowed to make this judgment.

Because Roe authorized abortion even after fetal viability for the “life or health” of the mother, Doe’s expansive definition of “health” makes abortion-on-demand available through all nine months of pregnancy.

Harvard Law School professor and AUL Advisory Board Member Mary Ann Glendon, who conducted a landmark study in 1987 on Abortion and Divorce in Western Law, has written about Doe’s significance in creating a more radical abortion policy in the United States than in “most other liberal democracies,”

Though Roe got all the attention, I think it is fair to say that Doe, decided on the same day, was the more ominous of the two decisions. It was Doe that signaled the doom of legislative efforts to provide even modest protection of unborn life—statutes of the type that are in force in most other liberal democracies (where the regulation of abortion has largely been left to be worked out in the ordinary democratic processes of bargaining, education, persuasion, and voting).[vii]

The legal community readily understands the reality that Roe and Doe invalidated the abortion laws of all 50 states. Harvard Law School professor Laurence Tribe, recognized as a leading liberal constitutional law scholar, wrote in 1973 that Roe and Doe “impos[ed] limits on permissible abortion legislation so severe that no abortion law in the United States remained valid.”[viii] In 1975, Elizabeth Moore observed that “in practical effect” the decisions “legalized abortion on demand in this country.”[ix]

Villanova Law professor Joseph Dellapenna, who in 2006 published perhaps the most substantive history of abortion, notes, “The Supreme Court’s haste to decide these cases… imposed a more extreme approach to abortion on the United States than is found in almost any other nation.”[x]

Subsequent Supreme Court decisions touching on abortion have modified aspects of Roe, but have not explicitly changed its abortion-on-demand policy.

Although the 1992 plurality decision of three Justices (Anthony Kennedy, Sandra Day O’Connor, and David Souter) in Planned Parenthood v. Casey[xi] permitted states to enact some life-affirming laws, such as parental involvement and informed consent (notably, against a challenge by Planned Parenthood), Casey reaffirmed the “essential” holding of Roe.

The Court’s 2007 decision in Gonzales v. Carhart[xii], upholding the federal ban on the partial-birth abortion procedure, is also significant. However, the law at issue in Gonzales only prohibits a particular kind of abortion procedure. The law does not create a gestational limit or rationale-based restriction on abortion.[xiii] Thus, Gonzales does not expressly alter the abortion-on-demand rubric of Roe and Doe.

Planned Parenthood Actively Opposes Commonsense Efforts to Moderate U.S. Abortion Policy

Over the past few years, a number of states have debated and considered a variety of abortion limitations (or bans).[xiv] Planned Parenthood’s standard line in opposition to these commonsense, “common ground” laws is to invoke an “interference” with the doctor-patient relationship argument. For example, Planned Parenthood President Cecile Richards, arguing against a gestational limit in Arizona, stated,

Politicians should not be involved in a woman’s personal medical decisions about her pregnancy. Ultimately, decisions about whether to choose adoption, end a pregnancy, or raise a child must be left to a woman, her family, and her faith, with the counsel of her doctor.[xv]

Planned Parenthood’s argument fails for several reasons.



First, Planned Parenthood’s rote opposition to every law and attempted regulation as “interference” in the doctor-patient relationship ignores the beneficial impact on women’s health. Arizona, for instance, enacted its late-term limit on abortions after 20 weeks of pregnancy, citing medical evidence that late-term abortions pose significant risks to women’s health and safety.[xvi]

Second, as former Planned Parenthood abortion clinic director, Abby Johnson, testified before the Texas Senate in 2011, “there is no doctor-patient relationship” at Planned Parenthood clinics.[xvii] Ms. Johnson recounts that at Planned Parenthood clinics, the physician performing a surgical abortion generally never speaks to a woman before her abortion procedure, nor during her recovery process after the procedure.[xviii] Additionally, Ms. Johnson recalls that for most chemical abortions, there was no physician on site. Neither was there an examination of the patient before the chemical abortion, or a follow-up visitation after the procedure.[xix]

Planned Parenthood’s longstanding practice of routinely opposing abortion regulations suggests it is more concerned about safeguarding the abortion industry than about protecting and advancing the interests of abortion patients. As detailed in AUL’s July 2011 report, The Case for Investigating Planned Parenthood, Planned Parenthood affiliates across the nation regularly oppose federal and state legislation designed to protect women and young girls, and file legal challenges to duly-enacted health and safety laws that regulate abortion.

The United States is one among only four nations in the world that allow abortions for any reason after fetal viability. As noted by one Canadian organization, to share this attribute with two of the most authoritarian regimes in the world is a “dubious distinction.”[xx] While the overwhelming majority of Americans—pro-choice and pro-life alike—support moving away from the company of China and North Korea by enacting meaningful gestational limits, Planned Parenthood reveals its true radical agenda as it opposes all efforts to do so.

[i] Lydia Saad, Plenty of Common Ground Found in Abortion Debate, GALLUP, Sept. 6, 2012, available at https://www.gallup.com/poll/148880/Plenty-Common-Ground-Found-Abortion-Debate.aspx. (last visited Sept. 11, 2012).

[ii] That subset consists of Canada, China, Great Britain, North Korea, the Netherlands, Singapore, Sweden, Vietnam, and the United States.

[iii] For an analysis of the abortion laws of these other nations see AUL Memo available at https://www.aul.org/united-states-abortion-policy-in-the-international-context/ (last visited Oct. 2, 2012).

[iv] See e.g. https://www.humanevents.com/2006/04/25/poll-americans-dont-understand-roe/ (last visited July 28, 2012). A poll conducted in 2006 by REAL Women’s Voices found 65% of respondents said they were familiar with Roe, but when asked which of four descriptions were accurate only 29% of respondents chose correctly, “[m]ade abortion legal in essentially all circumstances throughout pregnancy.” (18% believed Roe “[m]ade abortion legal but only in the first trimester,” 17% believed it “[m]ade abortion legal but only in limited circumstances,” and 15% believed it “[m]ade abortion legal but only in the first and second trimesters.”)

[v] 410 U.S. 113(1973).

[vi] 410 U.S. 179 (1973).

[viii] Laurence Tribe, The Supreme Court, 1972 Term—Foreword: Toward a Model of Roles in the Due Process of Life and Law, 87 Harv. L. Rev. 1, 2 (1973).

[ix] Elizabeth N. Moore, Moral Sentiments in Judicial Opinions on Abortion, 15 Santa Clara Law. 591, 633 (1975).

[x] Joseph Dellapenna, Dispelling the Myths of Abortion History 746-47 (Carolina Academic Press 2006).

[xi] 505 U.S. 833 (1992).

[xii] 550 U.S. 124 (2007).

[xiii] Four states have enacted bans on sex-selection abortions (Arizona, Illinois, Oklahoma and Pennsylvania). The constitutionality of these prohibitions has not been challenged in court.

[xiv] Alabama, Arizona, Georgia, Idaho, Indiana, Kansas, Louisiana, Oklahoma, and Nebraska have enacted 20 week abortion bans. Additionally, in 2011 and 2012, state legislatures in Alaska, Florida, Michigan, Mississippi, New Hampshire, Rhode Island, Virginia, and West Virginia considered measures banning abortions after 20 weeks.

[xv] Arizona Governor Jan Brewer Signs Most Extreme Abortion Ban in U.S., Planned Parenthood, (April 13, 2012), https://www.plannedparenthood.org/about-us/newsroom/press-releases/arizona-governor-jan-brewer-signs-most-extreme-abortion-ban-us-39157.htm (last visited Sept. 11, 2012). Similarly, in April 2012, when Georgia enacted House Bill 954, in an effort to deter Georgia Governor Nathan Deal from signing the bill, Planned Parenthood Action distributed an online letter which repeated the dubious claim that the bill would allow the government to interfere with the patient-doctor relationship: “Georgia women deserve access to the best medical care available, not a law that puts the government between a woman and her doctor making extremely personal, medical decisions.” Governor Deal: Veto House Bill 954, Planned Parenthood Southeast, https://secure.ppaction.org/site/Advocacy?pagename=homepage&page=UserAction&id=14578&JServSessionIdr004=2rjlt8a9w2.app202b (last visited July 24, 2012). Likewise, in March 2011, when Alabama enacted House Bill 18, which banned abortions after 20 weeks gestation, Planned Parenthood stated “Women facing these very personal difficult decisions need the best care they can get, not interference in the doctor-patient relationship,” said Kay Scott, President and CEO of Planned Parenthood Southeast. See Barbara Buchanan, Doctor-Patient Interference Bill Heading to Governor, Planned Parenthood Southeast, (June 10, 2011), https://www.plannedparenthood.org/about-us/newsroom/local-press-releases/doctor-patient-interference-bill-heading-governor-37080.htm (last visited July 24, 2012).

[xvi] The law has been challenged by the Center for Reproductive Rights and the American Civil Liberties Union in Isaacson v. Horne, arguing that although how abortions are performed may be regulated, abortions may not be prohibited based on gestational age.

[xvii] See Abby Johnson’s Testimony before Texas Senate on SB 1790, Americans United for Life, (April 27, 2011), https://www.aul.org/2011/04/abby-johnsons-testimony-before-texas-senate-on-sb-1790/ (last accessed July 24, 2012).

[xviii] See Abby Johnson’s Testimony before Texas Senate on SB 1790, Americans United for Life, (April 27, 2011), https://www.aul.org/2011/04/abby-johnsons-testimony-before-texas-senate-on-sb-1790/ (last accessed July 24, 2012).

[xix] See Alexa Garcia-Ditta, Pro-Life Convert Takes the Floor in Sonogram Debate, Texas Observer, (Feb. 9, 2011), https://www.texasobserver.org/tags/senate/itemlist/category/46-observations?start=14 (last visited July 24, 2012).

[xx] Available at: https://weneedalaw.ca/index.php/resources/international-law (last visited July 27, 2012).