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95 Of all the constitutional issues that have come before our courts, few have been as intractable, as divisive, or as impassioned as that of a woman’s right to terminate a pregnancy by abortion. The issue pits personal rights against public policy and invariably evokes the most intense and deeply held personal feelings and beliefs about health, family, religion, privacy, the nature of life, and a woman’s control over her own body. Advocates of reproductive freedom have called for recognition of a woman ’s fundamental constitutional right to control her own body, including the freedom to abort a pregnancy. By contrast, the antiabortion movement has argued that abortions kill babies and therefore should never be legal. Antiabortion zealots have gone so far as to murder abortion providers in the name of protecting unborn children. Although pro-choice advocates have presented, and courts have considered, evidence of the terrible harm to women’s physical and psychological health inflicted by the criminalization of abortion, the juxtaposition of the two interests—a woman’s right to choose versus protection of the potential life of the unborn fetus—has largely continued to frame the conflict. A Woman’s Constitutional Right to Choose an Abortion and Legislative Efforts to Restrict It In 1973, the United States Supreme Court issued its historic opinion in Roe v. Wade, ruling that the Texas criminal abortion statutes prohibiting abortions at any stage of pregnancy except to save the life of the mother were unconstitutional .1 Before Roe v. Wade, circumstances were grim for pregnant women, and particularly for poor pregnant women, who sought to terminate unwanted pregnancies . Abortion was legal in only four states, and many women died every year 5 Right to Choose v. Byrne (1982) Establishing a State Constitutional Right to Publicly Funded Abortions LOUIS RAVESON 96 LOUIS RAVESON from illegal “back alley” and self-induced abortions using nightmarish methods such as wire coat hangers, fertilizer, drain cleaner, and worse. Many more women suffered severe infections, crippling disabilities, and infertility from these “kitchen table” procedures, and every year, many thousands of women were compelled to give birth to children they did not want, were ill equipped to protect and nurture, and could not afford to raise. When the Supreme Court struck down the laws criminalizing abortion in Roe v. Wade, it balanced the competing interests concerned—a woman’s right to terminate a pregnancy inherent in her constitutional right to personal privacy, against the state’s interest in protecting the fetus as potential human life—by fashioning the now familiar construct of viewing the nine months of a woman’s pregnancy as three trimesters. The Court held that, in the first trimester, the abortion decision must be left to the woman and the medical judgment of her attending physician. In the second trimester, the state, in promoting its interest in the health of the pregnant woman, could regulate the abortion procedure in ways that are reasonably related to maternal health. Finally, in the third trimester , or the stage subsequent to fetal viability, the state could promote its interest in the potentiality of human life by regulating, or even prohibiting, abortion. The only limitation on the state’s power to do so was when, in the appropriate exercise of medical judgment, abortion was deemed necessary for the preservation of the pregnant woman’s life or health. Thus, as a woman’s pregnancy progresses, the state’s interest in the potential life of the fetus grows, justifying greater regulation by the state.2 Roe v. Wade changed everything. And it didn’t. Finally, the Supreme Court had recognized that a woman’s right to obtain an abortion was protected by the Constitution, and, as a result, women throughout the country could begin to obtain safe and legal abortions. On the other hand, the Court in Roe held that the state could regulate abortion procedures in the second trimester of pregnancy , and even proscribe abortions in the third trimester. The Court, therefore , left the door open to inroads upon a woman’s right to have an abortion and, almost immediately following the decision in Roe, states began to impose restrictions upon a woman’s ability to terminate a pregnancy. States and municipalities enacted legislation and promulgated a variety of regulations: prohibiting abortions in public facilities; requiring doctors to use particular abortion procedures designed to maximize the chance of fetal survival in post-viability abortions; prohibiting public personnel from performing abortions; requiring ultrasound tests in pregnancies of twenty weeks...

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