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Am J Law Med. 1976 Summer;2(1):101-32.

State legislation on abortion after Roe v. Wade: selected constitutional issues.


Over the past three years, a great volume of legislation on abortion has been produced by state legislatures in an attempt to fill the vacuum created by the United States Supreme Court's 1973 decision in Roe v. Wade. This Article examines several of the most common types of statutory provisions and assesses their constitutionality in light of Roe v. Wade and other applicable federal and state legal standards.


Following the 1973 U.S. Supreme Court decision in Roe v. Wade a number of states passed laws in an attempt to fill the vacuum created by the broad Supreme Court guidelines. Basically these statutes try to define the concept of viability, address paternal consent or parental consent requirements, set standards for hospitals or individuals, discuss the right to refuse to permit or to participate in performance of abortions, consider the rights of the aborted fetus if born alive, and set reporting requirements. The concept of viability is very elusive. So far definitions which seem unreasonably vague and put the doctor in a position of uncertainty have not stood up well in court. Neither have unreasonably low determinations of viability. In general, state laws which regulate performance of abortion solely for the life or health of the mother after 24 weeks seem Constitutionally sound. It has already been determined in the courts that consent is not required from either the parents of a minor or from the father of the child. However, laws which require consultation with affected parties do seem sound. The refusal to participate or to allow abortion is currently cloudy. It has been held that public hospitals supported by tax funds must perform abortions. For private hospitals the situation is less clear. If sufficient public support is given and if it is the only health care facility in the area, it might well be required to perform abortions. Teaching hospitals cannot limit abortion cases unless similar restrictions are placed on other elective procedures. However, the right of conscience of an individual doctor or nurse cannot be violated. Even if this limits abortion care, the concept of individual liberty would protect religious or sincere moral convictions against abortion. In abortions performed close to or after viability every effort must be made to sustain the life of the fetus. Some states have stated that the fetus becomes the ward of the state while others have set up a hearing mechanism to determine the guardianship of the child. It has been held that abortion reporting needs to be more detailed than reporting of other elective proceduress The determination of the age of the fetus is especially important. However, full confidentiality must be maintained.

[PubMed - indexed for MEDLINE]
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