The law of abortion: Another law school for you

Roe v. Wade didn't settle the abortion debate in America or abortion law; it launched a whole new round of lawsuits and acrimonious argument. Where does the law stand now?


WASHINGTON, July 9, 2017 ⏤ Becoming pregnant by choice is considered one of life’s greatest gifts. When pregnancy occurs by accident after consensual relations, many consider it an extraordinary gift as well.

When pregnancy occurs after rape, there is harsh disagreement: To some, the pregnancy is still a gift, but to many, it is a nightmare.
The decision to terminate a pregnancy under any circumstance is painfully difficult. Factors leading to the decision can include finances, social, family or community status and pressures, marital status, the health of the unborn child, and the circumstances under which the pregnancy occurred. The health of the mother is a paramount factor.

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The topic of abortion is polarizing, different in kind and emotional impact from other contentious topics. People who disagree with politics, money, and religion often find areas of agreement, but with abortion, there is little common ground. You enter the argument identified as either “pro-choice” or “pro-life.”

Those who are pro-choice argue that a woman has a right to choose what she does with her body; abortion is her decision alone.

Those who are pro-life argue that a woman does not have the right to decide the fate of another human being, even if that human being lives in her womb.

One of the rare areas of possible agreement between the two sides is the legality of abortion when the woman’s life is in danger, or if the pregnancy was a result of rape.

Perhaps the debate should begin with the definition of “human life.” It is a key focus.

Doctors can address the issue of fetal viability: When in the pregnancy can a fetus survive outside of the womb? The consensus is around 22 weeks.

The issue gets more complicated, however: Is viability measured from the moment of conception, or from the first day of the pregnant woman’s last menstrual period? It is an important distinction in the abortion debate, as laws address the legality of the procedure based on viability. The viability of an individual life can be determined by 24 hours.

A brief overview of abortion laws around the world offers perspective.

Earlier this month a teenager was sentenced to 30 years in prison in El Salvador. The young woman was gang raped and did not realize she was pregnant until she went into a school bathroom due to severe stomach and back pain. She delivered a stillborn child in a toilet.

Her crime was that she failed to seek prenatal care, and in El Salvador, that failure is tantamount to murder.

El Salvador is one of six countries with a total ban, no matter the circumstances, on abortion. The others are Chile, the Dominican Republic, Nicaragua, Vatican City and Malta.

A 2015 Pew Research Center study indicates that about 96 percent of countries permit abortion to save a woman’s life.

The concern about abortion has intensified in the last year in both South and Central America as the Zika virus has been linked to severe birth defects.

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Over the last 20 years, over 30 countries have liberalized their abortion laws, according to an adviser for the Center for Women’s Reproductive Rights.

The most significant law on abortion in the United States is the 1972 Supreme Court opinion on Roe v. Wade. It is the foundation of abortion law in this country. The essence of the decision is that women may legally end their pregnancies for virtually any reason, within certain gestational time limits.

Abortion opponents have pushed for Roe to be overturned but without success. They have gone to court to make getting an abortion more difficult, and court decisions have made dents in Roe’s general concepts, making abortion laws stricter.

One Supreme Court case in particular, Planned Parenthood v. Casey (1992), upheld the right to a legal abortion but positioned states to regulate some aspects of the procedure: They can impose a 24-hour waiting period, informed consent requirements, parental consent provisions in the case of a minor, and record keeping requirements.

The following is a summary of state restrictions on abortion laws that have been enacted since Roe.

Counseling: Sixteen states require women to undergo counseling before having an abortion. Topics of the counseling differ.

Waiting Periods: Twenty-seven states require a woman seeking an abortion to wait for a specified time, usually 24 hours, after she receives counseling.

Doctor and Hospital Requirements: Thirty-eight states require use of a licensed physician; 19 require the procedure be performed in a hospital after a certain point in the pregnancy.

Gestational Limits: Forty-three states prohibit an abortion, except when necessary to protect the woman’s life or health, after a specified point in the pregnancy.

Parental Involvement: Thirty-seven states require some type of parental involvement in a minor’s decision to have an abortion; 26 require one or both parents to consent to the procedure.

“Partial-Birth” Abortions: Nineteen states prohibit this procedure.

Public Funding: Seventeen states use their own funds to pay for all or most medically necessary abortions for Medicaid enrollees; 32 states prohibit the use of state funds except in cases where federal funding is available.

Private Insurance Coverage: Eleven states restrict coverage in private insurance plans, most limiting coverage to when the woman’s life would be endangered if the pregnancy were carried to term.

Refusal: Forty-five states allow individual health care providers to refuse to participate in an abortion, and 42 states allow institutions to refuse.

The most recent federal action concerning abortion was enacted in April, initiated by President Trump on his first day in office. It bans federal money going to Planned Parenthood and other organizations offering abortion services.

One impassioned view of this new law comes from Heidi Williamson, senior policy analyst for the Women’s Health and Rights program at the Center for American Progress:

“Despite repeated promises that he would protect and invest in women’s health, President Trump has once again shown that his words carry little weight. Trump’s actions are creating very real and damaging consequences for millions of women and their families, inflicting direct harm on already vulnerable communities.”

As a candidate, Trump told an audience that if abortion is illegal, “There has to be some form of punishment” for women who obtain an abortion. He later retracted that opinion, indicating that the doctor performing the abortion should be held responsible.

Before Trump took office, there were prosecutions of women who attempted to end their own pregnancies using methods such as pills, herbs or, there are even horror stories of women trying to abort their pregnancy with coat hangers.

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No prosecutions have occurred this year to this writer’s knowledge.

Some doctors have been prosecuted for performing abortions. In Michigan, in 2001, Dr. Jose Higuera was charged with felonious abortion after he performed a third-trimester abortion in 1994 on what he said was a healthy woman.

The charge was eventually dropped in return for his guilty plea to a lesser charge and the revocation of his medical license.

Abortion is a hot issue, laden with emotion. Zealots on either side have sometimes gone too far. Sane and reasonable people do not bomb abortion clinics; they acknowledge that those on the other side of the issue have valid and reasonable concerns. “I disagree with you” is part of the beauty of this country. Different experiences and different “truths” will always be the basis for completely opposing beliefs.

The law is forever changing. Stay tuned, President Trump may not be finished.

Paul A. Samakow is an attorney licensed in Maryland and Virginia and has been practicing since 1980.  He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website

His book “The 8 Critical Things Your Auto Accident Attorney Won’t Tell You” can be instantly downloaded, for free, on his website:

Samakow has now also started a small business consulting firm. The website for this business is brand new and Mr. Samakow will be most appreciative of any and all comments.

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