Thomas on the History of First Term Abortion Regulation

Tracy A. Thomas, University of Akron School of Law, has posted a new paper: Back to the Future of Regulating Abortion in the First Term.  Here's the abstract:

In the first half of 2011, more abortion bills have passed to restrict abortion than ever before. The 162 new abortion bills passed by 19 states in the first six months of the year dwarf the average number of abortion bills for the last three decades of 15 per year. Even more, these bills propose significantly more stringent limits on abortion than in the past, including mandatory ultrasound viewings, intensive counseling, and bans after the first fetal heartbeat at six weeks. These restrictions seem blatantly to defy the holding of Roe v. Wade permitting abortion in the first trimester, yet they continue to proliferate.

This Article provides the historical context for the current onslaught of proposed abortion bills by returning to two of the earliest Supreme Court cases of indirect regulation of abortion in the first term. It offers a legal history of the case, City of Akron v. Akron Center for Reproductive Health, and its follow-on case, Ohio v. Akron Center for Reproductive Health. For before the dust had even settled in the Supreme Court’s 1973 landmark decision in Roe v. Wade, legislators had moved to restrict its impact by passing laws to “protect women’s health and voluntary and informed consent.” In the Akron cases, the Court first rejected such attempts to limit abortion in the first term, but then subsequently upheld a first-term regulation, casting doubt upon its continued commitment to Roe.

This legal history offers insights and analyses into the legislation of abortion gleaned from a review of the historical record in the Akron cases found in archives and long-forgotten files in dusty basements. It relies on interviews with key players in the cases to provide a fuller explanation of the political and social motivations behind the legal disputes. Revisiting the legal and factual details of these foundational cases of first-term abortion regulation offers a more nuanced understanding of the opposition to abortion and the unsatisfactory nature of the judicial compromises. For only one thing is clear: “The decision in Roe v. Wade neither started nor ended the debate over abortion.”