Sunday, June 24, 2012
Tracy A. Thomas (University of Akron School of Law) has posted Back to the Future of Regulating Abortion in the First Term on SSRN. Here is the abstract:
In 2011, more abortion bills were passed to restrict abortion than ever before. The proliferation and rate of proposals outpaces anything seen in the last quarter of a century since abortion was legalized in 1973. In what has been called “a year for the record books,” legislatures in all fifty states introduced a total of 1,100 bills resulting in 135 new laws restricting abortion. These laws include fetal pain bans on abortion after 20 weeks, mandatory ultrasound laws, 72-hour waiting periods, and heartbeat bills that ban abortion after 8 weeks. These laws represent an unprecedented seismic shift in the law from moderate regulation to overt hostility. The advent of significantly more stringent limits on abortion seems to blatantly defy the holding of Roe v. Wade permitting abortion in the first trimester. This abortion activism is part of a larger movement against women’s reproductive health that’s been called the “war on women.” These new laws are part of a war over women’s health being fought around the country — and in much of the country women are losing. State by state, legislatures are creating new obstacles to abortions and are treating women in ways that are patronizing and humiliating.
Despite the recent acceleration of abortion regulation, challenges to the Supreme Court’s 1973 landmark decision in Roe v. Wade by early term regulations are nothing new. Even before the dust settled in Roe, states had legislated to whittle away at the right to abortion by implementing obstacles to abortion under the guise of protecting women’s health and ensuring informed consent. This Article goes back to two of these early cases of informed consent abortion regulations in order to provide important context for the current deluge of first-term abortion regulations. It offers a legal history of City of Akron v. Akron Center for Reproductive Health, and Ohio v. Akron Center for Reproductive Health (Akron II). These two cases, both out of Akron, Ohio, maneuvered the legal boundaries of first-term regulations, with very different results; the first striking down such regulation, while the second upheld limitations on early abortions.
The renewed movement to restrict abortion in the first term resurrects these earlier decisions about abortion informed consent and puts them front and center as the courts will have to shift from considering legislation of late term “partial birth” abortion to early term regulations. This legal history offers insights and analyses gleaned from a review of the historical record found in archives and long-forgotten files in dusty basements. It relies on interviews with key players in the case to fill in the story between the black and white lines of judicial opinions. For the public dispute over abortion in Akron seized the locality while it captured the attention of the national media.