- The right to choose an abortion is encompassed within the constitutional right to privacy.
- Restrictions placed on abortion by individual states are subject to the highest degree of constitutional scrutiny (referred to as "strict scrutiny") and must be narrowly tailored to serve a "compelling" state interest.
- Before viability (i.e., before the fetus can survive outside the womb), the state's interest in fetal life is not compelling, and so the state cannot restrict a woman's right to choose abortion.
- Even after viability, when the state's interest in fetal life becomes compelling, the state must allow abortions deemed necessary to protect a woman's life or health.
- The state's interest in the health of the pregnant woman becomes compelling at the end of the first trimester of pregnancy, and at that point the state can restrict abortions that would endanger her life or health.
- A fetus is not a "person" under the Fourteenth Amendment, nor may the state justify restrictions on abortion based on one theory of when life begins.
- Replaced "strict scrutiny" with a weak and confusing "undue burden" standard (by which states can choose to restrict abortion so long as the laws do not impose an undue burden on the woman, a standard which can be widely interpreted).
- Allowed states to require that minors obtain parental consent before seeking an abortion, as long as there is an option to bypass this requirement by getting a waiver from a judge.
- Approved congressional bans on federal funding for abortions, which now affect poor women, prisoners, women in the military, federal employees, and others.
- Enabled government to promote childbearing over abortion -- for example, states may require women to undergo mandatory anti-abortion counseling prior to seeking an abortion.
- Allowed states to impose additional medical restrictions on abortions, such as requiring a pathology report for each abortion and the presence of a second physician during all post-viability abortions.
- Ruled that recipients of federal family planning funds can be barred from providing counseling about or referrals for abortions ("the gag rule").
A majority of the Court no longer supports Roe v. Wade as written, and recent Court decisions indicate that four Justices would vote to overturn Roe if they could.
Note: This article was originally printed in the NCJW Journal: The Fight for Choice (Spring 2002).