clinic personnel from providing any informa-
tion about abortion, including counseling or
referral. The regulations also required that
the only permissible response to a request for
an abortion or referral was to state that the
agency “does not consider abortion an appro-
priate method of planning and therefore does
not counsel or refer for ab ortion.” This
regulation became known to its detractors as
the
GAG RULE.
The regulations also prohibited Title X-
funded family planning clinics from
LOBBYING
for legislation that advocated or increased access
to abortion, and they required that such clinics
be “physically and financially separate” from
abortion activities. Although a family planning
agency could still conduct abortion-related
activities, it could not use federal money to
fund such activities. Chief Justice
WILLIAM H.
REHNQUIST, who wrote the Court’s opinion,
disagreed with the contentions of the plain-
tiffs—several family planning agencies—that
the federal regulations violated a woman’s due
process right to choose whether to terminate
her pregnancy. He pointed out that the due
process clause generally confers no affirmative
right to government aid. The government has
no constitutional duty to subsidize abortion and

rective counseling on all options to a patient
and to refer her for abortion services if she
chose. However, such clinics would still be
prohibited from engaging in pro-choice lobby-
ing or litigation.
Other Major Abortion Regulations
Among the first abortion regulations to be
enacted after Roe v. Wade were requirements for
the
INFORMED CONSENT of the woman seeking an
abortion. Although informed consent laws vary
from jurisdiction to jurisdiction, it can generally
be given only after a woman receives certain
information from a doctor, medical professional,
or counselor. This information can include the
nature and risks of the abortion procedure,
the risk of carrying the pregnancy to term, the
alternatives to abortion, the probable age of the
fetus, and specific government aid available for
care of a child. Related to this issue are other
types of consent, including parental and spousal
consent, that states have sought to require before
an abortion can be performed.
In 1976 the Court reviewed a Missouri
statute requiring that the following provisions
be met for an abortion to be performed: that a
woman in the first twelve weeks of her
pregnancy give written consent; that a wife
obtain her husband’s consent; and that a minor
obtain her parents’ consent, unless a medical

of both parents or judicial approval—commonly
called judicial bypass—before an unmarried
minor could obtain an abortion. The Court
found the law unconstitutional because it gave
third parties—the child ’s parents or the court—
absolute
VETO power over the minor’s ability to
choose abortion, regardless of her best interests,
maturity, or ability to make informed decisions.
In H.L. v. Matheson, 450 U.S. 398, 101 S. Ct.
1164, 67 L. Ed. 2d 388 (1981) , the Court upheld
a Utah statute requiring that a physician notify
the parents of a minor before performing an
abortion on her (Utah Code Ann. § 76-7-304).
Because the law required only notification
rather than consent, the Court reasoned that it
did not give any party veto power over the
minor’s decision. In Hodgson v. Minnesota, 497
U.S. 417, 110 S. Ct. 2926, 11 L. Ed. 2d 344
(1990), the Court upheld a parental notification
statute because the statute’s provision for
judicial bypass took into account the best
interests of the minor, her maturity, and her
ability to make an informed decision. In Ayotte
v. Planned Parenthood of Northern New England,
546 U.S. 320, 126 S. Ct. 961, 163 L. Ed. 2d 812
(2006), the Court revie wed another parental
notification statute that did not contain an
exception to allow a minor to obtain an
abortion without notice to her parent when

Reagan admi nistration’s Justice Department
specifically asked the Court to overturn Roe.
In its brief, the department argued that the
Court should “abandon” Roe because its textual
and historical basis was “so far flawed” as to be a
source of instability in the law. Instead, the brief
urged, the Court should leave the state legis-
latures free to permit or prohibit abortion as
they wish. However, by a 5–4 vote the Court
found all the provisions of Pennsylvania’s
Abortion Control Act to be unconstitutional,
thereby reaffirming its previous decisions up-
holding a woman’s constitutional right to
abortion. “The states,” wrote Justice Blackmun
in the Court’s opinion, “are not free, under the
guise of protecting maternal health or potential
life, to intimidate women into continuing
pregnancies.” Pennsylvania defended itself by
claiming that its procedures gave the pregnant
woman information that would better inform
her decision regarding abortion. Blackmun,
although he agreed in principle with the idea
of informed consent, found that the Penn sylva-
nia procedures were designed not so much to
inform as to encourage a woman to withhold
her consent to an abortion.
The narrow margin of the Court’s decision
encouraged the anti-abortion movement. By the
time the Court reached its next major abortion
decision, in 1992 (Planned Parenthood of

reproductive rights. Justices O’Connor, Ken-
nedy, and
DAVID H. SOUTER wrote the majority
opinion, and Justices JOHN PAUL STEVENS and
Blackmun wrote concurring opinions. Chief
Justice Rehnquist and Justices Scalia,
BYRON R.
WHITE, and CLARENCE THOMAS all dissented.
Noting that the case marked the fifth time
the Justice Department under the Ronald
Reagan and George H. W. Bush administrations
had filed a report with the Court making known
its desire to overturn Roe, the Court’s opinion
defended the reasoning of the Roe decision. The
Court characterized the Roe ruling as having
three major provisions:
First is a recognition of the right of the
woman to choose to have an abortion before
viability and to obtain it without undue
interference from the state. Second is a
confirmation of the State’s power to restrict
abortions after fetal viability, if the law
contains exceptions for pregnancies which
endanger a woman’s life or health. And third
is the principle that the State has legitimate
interests from the outset of the pregnancy in
protecting the health of the woman and the
life of the fetus that may become a child.
In Casey, as in Roe, the Court found the
constitutional basis of a woman’s right to

society in the past permitted laws that prohib-
ited abortion. They also gave different argu-
ments for upholding the Pennsylvania statute’s
restrictions. Such provisions had only to show a
“rational basis,” and using that test, they would
have upheld all the challenged portions of the
Pennsylvania law. Chief Justice Rehnquist and
Justice Scalia both argued that the Court had
misused the no tion of stare decisis in the case,
because the Court did not uphold all aspects of
Roe. Scalia also maintained that although the
liberty to terminate a pregnancy may be of great
importance to many women, it is not “a liberty
protected by the Constitution.”
The Court’s decision in Casey was used to
strike down other state laws that sharply
restricted women’s access to abortion. In
September 1992, citing the Casey decision in
Sojourner v. Edwards, 974 F.2d 27, the U.S.
Court of Appeals for the Fifth Circuit struck
down a Louisiana law that would have imposed
stiff sentences on doctors performing abortions
for reasons other than saving the life of the
mother or in cases of rape or incest if the victim
reported the crime (La. Rev. Stat. Ann. 14:87).
The appeals court found the statute unconstitu-
tional because it imposed an undue burden on
women seekin g an abortion before fetal viabili-
ty. The Supreme Court later upheld this ruling
without comment (Sojourner, 507 U.S. 972, 113

The Supreme Court decided a number of
different cases surrounding the issue of anti-
abortion protests, many of which made it more
difficult for anti-abortion groups to disrupt the
operations of family planning clinics. In Madsen
v. Women’s Health Center, 512 U.S. 753, 114 S.
Ct. 2516, 129 L. Ed. 2d 593 (1994), the Court
upheld a regulation barring abortion protesters
within 36 feet of a Melbourne, Florida, clinic. In
another 1994 decision, National Organization
for Women v. Scheidler, 510 U.S. 249, 114 S. Ct.
798, 127 L. Ed. 2d 99, the Court upheld the use
of the Racketeer Influenced and Corrupt
Organizations (RICO) chapter of the
ORGANIZED
CRIME
Control Act of 1970 (18 U.S.C.A. §§
1961–1968) against militant anti-abortion
groups. RICO, which was originally designed
to combat Mafia crime, gives the government a
potent tool to convict those involved in violence
against abortion providers and their clinics.
In May 1994 President Clinton signed into
law another tool to be used against anti-
abortion militants, the Freedom of Access to
Clinic Entrances Act (FACE), which allows for
federal criminal prosecution of anyone who, “by
force or threat of force or by physical obstruc-
tion, intentionally injures, intimidates, or inter-
feres with any person obtainin g or

under the Reagan and Bush administrations,
banned the importation of RU-486 into the
United States. However, in April 1993 the
Clinton administrat ion pressured Roussel Uclaf
to license the drug for sale to the United States.
Population Council, a New York-based
NON-
PROFIT
organization, said it would conduct
clinical tests in the United States. In 1994 the
pharmaceutical company donated its U.S.
PATENT of the drug to the council. By 1996 the
Population Council had filed for FDA approval,
and in September 2000, the FDA approved the
“abortion pill.” Danco Laboratories, a New
York-based women’s health pharmaceutical
company which had been given the rights by
the council to manufacture and distribute
mifepristone, made the drug available to U.S.
clinics by November. In the two years following
its introduction, more than one hundred thou-
sand women in the United States chose mife-
pristone as an abortion option. Abortion pro-
testers quickly rallied and began to
PETITION the
FDA to RESCIND its approval of the drug, claiming
that mifepristone is harmful to women.
The Pro-Life Movement and the Courts
Even before the Supreme Court’s landmark
1973 abortion ruling i n Roe v. Wade, anti-

that they are saving unborn children from
murder, and their tactics have grown increas-
ingly complex. Typical stratagems include
bringing in dozens or hundreds of volunteers
and blocking clinic entrances with their bodies,
often chaining themselves to doors; shouting
slogans, sometimes with bullhorns; attempting
to intercept women leaving or entering the
building and plying them with anti-abortion
literature; displaying graphic pictures of fetuses;
and trailing clinic employees to and from work
while shouting such labels as “Baby killer!”
Besides demonstrating, anti-abortion groups
have sponsored pregnancy crisis centers, where
they counsel pregnant women, with the inten-
tion of persuading them to carry their pregnan-
cies to term. By the mid-1980s, activists had
created national organizations and networks
that promoted civil disobedience to stop the
practice of abortion. One well-known organiza-
tion is Operation Rescue, which was started in
the 1980s by Randall Terry, an evangelical
Christian.
The aggressive strategies of the anti-abortion
movement prompted legal responses from
women’s and abortion rights organizations,
resulting in a number of cases that have reached
the Supreme Court. In several different rulings,
the Court has attempted to clarify what is and is
not allowed in anti-abortion demonstrations. In

the Court did strike down other provisions of
the injunction, such as a 300-foot exclusion
zone and restrictions on carrying banners and
pictures. The ruling was considered a major
defeat for the anti-abortion movement. Justice
Antonin Scalia wrote a sharp dissent in which
he claimed that the Supreme Court’s position
on abortion had claimed “its latest, greatest and
most surprising victim: the First Amendment.”
Increased Violence Changes the Debate
Violence has been a part of the heated debat e
surrounding abortion ever since the 1973 Roe v.
Wade decis ion that guaranteed a woman’s
limited right to an abortion. Bombings,
ARSON,
and even murder have been committed by anti-
abortion activists in the name of their cause.
The National Abortion Federation counted
more than three thousand violent or threaten-
ing incidents against abortion clinics between
1976 and 1994. In the 1990s the extremist wing
of the anti-abortion movement turned even
more violent, including murder as part of its
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
22 ABORTION
tactics. Some extremists now view killing health
care professionals who perform abortions as
justifiable
HOMICIDE.
Between March 1993 and the end of 1994,

clinics. In 1993 women’s rights groups
attempted to use an existing civil rights law as
precedence in Bray v. Alexandria Women’s
Health Clinic, 506 U.S. 263, 113 S. Ct. 753,
122 L. Ed. 2d 34 (1993). They were not
successful. The Supreme Court ruled that a
nineteenth-century federal civil rights law
(42 U.S.C.A. § 1985[3] ) aimed at protecting
African Americans from the
KU KLUX KLAN could
not be used to prevent anti-abortion protesters
from blockading abortion clinics. Originally
enacted as part of the
KU KLUX KLAN ACT of
1871, the law was specifically aimed at addres-
sing mob violence and
VIGILANTISM against
African Americans.
In 1989 a lower-court ruling found that
Operation Rescue had violated trespassing and
public
NUISANCE laws and had conspired to
violate the right to interstate travel of women
seeking abortions at clinics. The court banned
Operation Rescue from trespassing on or
obstructing access to abortion clinics (NOW v.
Operation Rescue, 726 F. Supp. 1483 [E.D. Va.
1989]). This decision was reversed by the
Supreme Court in Bray, in a 6–3 ruling, when
it held that women did not qualify as a class

ing 18 U.S.C.A. § 245(b), which prohibits force
or threat of force to willfully injure, intimidate,
or interfere with any person who is
VOTING,
engaging in activities related to voting, or
enjoying the benefits of federal programs.
Nevertheless, FACE is not identical to previous
federal civil rights laws, particularly where it
prohibits acts of physical obstruction.
FACE ignited immediate challenges by anti-
abortion groups who claimed that it abridged
their
FIRST AMENDMENT right to FREEDOM OF
SPEECH
. Courts were unwilling to invalidate the
law on this ground, reasoning that the law
prohibits only conduct—as in “force,”“threat
of force,” and “physical obstruction”—rather
than speech (see Council for Life Coalition v.
Reno, 856 F. Supp. 1422, No. 94-0843-
1EG[CM], 1994 WL 363132 [S.D. Cal. 1994]).
Since the Freedom of Access to Clinic
Entrances Act was passed, the Supreme Court
has reviewed several laws restricting protests
at clinics, with the goal of balancing the
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
ABORTION 23
interests of protecting women seeking abortions
with the freedom of speech interests of abortion
clinic protesters. The Court has used an

interpretation of these rights, became
more intense and at times even violent.
The question of access to abortion clinic
property—whether to obtain clinic ser-
vices or to protest them—became a
pressing issue.
Three major points of view dominate
the abortion debate: the pro-choice, or
abortion rights, view; the moderate pro-
life, or moderate anti-abortion, view; and
the extremist (or militant) pro-life, or
anti-abortion, view.
The pro-choice, or abortion rights,
side of the debate is made up of a
number of women’s rights, family plan-
ning, and medical organizations, and
other groups of concerned citizens and
professionals. The groups include the
NATIONAL ORGANIZATION FOR WOMEN
(NOW), the Planned Parenthood Feder-
ation of America, the National Abortion
Federation, and the National Abortion
and Reproductive Rights Action League
(NARAL). Many religious organizations
have also taken positions that endorse
the right of women to seek abortions in
specific situations. Most of these pro-
choice groups argue that a woman’s
decision to carry a pregnancy to term is
a private choice that should not be

not. My concern is for the safety
of millions of women should
our freedom of choice be taken
away from us. I want it clearly
understood that I do not pro-
mote abortion. I promote per-
sonal choice.
If we return to the antique
methods of dealing with un-
wanted pregnancies that existed
before Roe v. Wade, the women’s
movement will be taking an
enormous step backward. We
are on the verge of having our
reproductive freedom taken
away from us if we do not take
a stand and let our voices be
heard NOW.
Pro-choice groups remain commit-
ted to the
CONSTITUTIONAL right to PRIVACY
defined in Roe. They view anti-abortion
demonstrations that prevent women
from obtaining abortions as interfering
with that right to privacy.
The pro-choice group also has a
range of viewpoints within it. Whereas all
persons who describe themselves as
pro-choice support a general right to
abortion, some oppose some kinds of

Protestant denominations. Generally,
these groups believe that the fetus is a
person with rights equal to those of other
people, and some of these identify the
unborn person as existing from the
moment of conception or in the embry-
onic stage. Many are willing to allow
abortion in certain cases, usually when
pregnancy threatens the health of the
mother or has resulted from
RAPE or
INCEST. Moderates in their manner of
supporting changes in abortion laws and
regulations differ from militants. Mod-
erates emphasize using existing legal
channels to bring about change.
Militant pro-life groups share many
of the views of moderate groups, but they
favor an activist use of
CIVIL DISOBEDIENCE to
prevent abortion procedures and to save
or rescue the lives of the unborn. Randall
Terry and Flip Benham, of the most well
known anti-abortion group, Operation
Rescue, represent the militant views. Terry
is Operation Rescue’s founder and leading
figure; he participated in his first anti-
abortion protest in 1984 and has served
time in prison because of his demonstra-
tions. As an evangelical Protestant Chris-

Salvi murdered two people and wounded
others in an abortion clinic shooting in
late 1994, Benham commented, “There
is little that federal marshals or anyone
else can do to halt this
MURDER and
violence. We will not have peace outside
the womb until peace is restored within
the womb.” Added Terry, “We’re in-
volved in a cultural civil war.” When
Kansas obstetrician George Tiller was
killed in May 2009, Terry called the
doctor a “mass-murderer” and com-
pared him to a Nazi war criminal.
Scheidler and his group won a major
victory in 2003 when the U.S. Supreme
Court ruled 8–1 that the RICO statute
was improperly used against the group
and other pro-life activists, in the case
brought against them by the National
Organization for Women (Scheidler v.
Nat’l Organization for Women, Inc., 537
U.S. 393, 123 S. Ct. 1057, 154 L. Ed. 2d
991 [2003]).
It is possible the extremist position
may have done more to hurt than to
help the anti-abortion cause. The publi-
cized violence of the movement, in
combination with the new prosecutorial
powers granted in FACE, served to

Partial Birth Abortion Ban Act was
enacted in 2003 and upheld by the
Supreme Court in Gonzales v. Carhart
(550 U.S. 124, 127 S. Ct. 1610, 167 L. Ed.
2d 480 [2007]).
FURTHER READING
Risen, James, and Judy L. Thomas. 1998.
Wrath of Angels: The American Abortion
War. New York: Basic Books.
CROSS REFERENCES
Civil Rights Acts; Schools and School
Districts.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
ABORTION 25
out a leaflet or handbill to, displaying a sign to,
engaging in oral
PROTEST with, or counseling said
individual. The Court reasoned that the states’
interest in protecting the health and safety of its
citizens justified a special focus on unimpeded
access to healthcare facilities and the avoidance
of potential trauma to patients that could result
from confrontational protests. In addition, the
statute did not violate the First Amendment
because it protected listeners from unwanted
communication, was content-neutral, and
served as a valid time, place, and manner
restriction.
Abortion rights supporters suffered a more
serious setback with the Court’s decision in

with, disrupting, and in some instances “shut-
ting down” clinics that performed abortions,
individual and corporate organizers of anti-
abortion protest network did not “obtain” or
attempt to obtain property from women’s rights
organization or abortion clinics, and so did not
commit “extortion” under the Hobbs Act, as
required for organization and clinics to establish
RICO predicate offense; whereas organizers may
have deprived or sought to deprive organizations
and clinics of their alleged
PROPERTY RIGHT of
exclusive control of their business assets, they did
not acquire any such property, nor did they
pursue or receive something of value from
organizations or clinics that they could exercise,
transfer, or sell. The Court also ruled that an
injunction obtained against the abortions pro-
testers litigating this case on the basis of RICO
was invalid.
The debate and litigation surrounding the
issue of anti-abortion protests show little sign of
waning, with pro-choice advocates attempting
to limit protesters’ efforts to demonstrate at
abortion clinics, and anti-abortion protest
groups challenging the laws regulating their
activities, on the grounds that such laws abridge
freedom of speech.
New Attempts to Restrict Abortion
Some state lawma kers have not ended their

ing what doctors call dilation and extraction. It
is used most commonly in the second trimester,
between 20 and 24 weeks of pregnancy, when a
woman suffers from a life-threatening medical
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
26 ABORTION
condition or disease. In Stenberg v. Carhart, 530
U.S. 914, 120 S. Ct. 2597 (2000), by a 5–4 vote,
the Court struck down Nebraska’s ban on
partial-birth abortion. The Court ruled the
statute was invalid because it lacked any
exception to protect a woman’s health, noting
that the state could promote but not endanger a
woman’s health when it regulates the met hods
of abortion. It also concluded that terms in the
statute were unconstitutionally vague such that
it would affect not only partial birth abortion
but also other constitutionally protected sec-
ond-trimester abortion methods.
In early 2003 the U.S. Congress passed the
Partial Birth Abortion Ban Act, Pub. L. No. 108-
105, 117 Stat. 1201, which contained a ban
similar to the Nebraska law. The Congress had
passed this law before, only to have Bill Clinton
veto it. President
GEORGE W. BUSH went on record
as saying he would sign the bill if it reached his
desk. When he did so, the Supreme Court was
called upon to decide whether Stenberg applied.
In Gonzales v. Carhart, 550 U.S. 124, 127 S. Ct.

States. 2d ed. Jefferson, N.C.: McFarland.
Perry, Michael J. 2009. Constitutional Rights, Moral
Controversy, and the Supreme Court. New York: Cam-
bridge University Press.
Reagan, Ronald. 1984. Abortion and the Conscience of a
Nation. Nashville: Nelson.
Rubin, Eva R. 1987. Abortion, Politics, and the Courts: Roe v.
Wade and Its Aftermath. New York: Greenwood.
CROSS REFERENCES
Constitutional Amendment; Fetal Rights; Husband and
Wife; Parent and Child; Privacy; Reproduction; “Roe v.
Wade” (Appendix, Milestone); Wattleton, Alyce Faye;
Women’sRights.
ABRAMS V. UNITED STATES
In Abrams v. United States, 250 U.S. 616, 40
S.Ct. 17, 63 L.Ed. 1173 (1919), the U.S.
Supreme Court applied the
CLEAR AND PRESENT
DANGER
test in upholding the conviction of five
anti-war protestors, who had been charged with
SEDITION for distributing pamphlets criticizing
President
WOODROW WILSON during WORLD WAR I.
However, the case is remembered more for the
lone dissenting opinion written by Justice Oliver
Wendell Holmes Jr., architect of the original
clear-and-present-danger test just eight months
earlier. Holmes’s dissent argued that
FREEDOM OF

the” U.S. war effort. The act also made it illegal
to “willfully urge, incite, or
ADVOCATE [the]
curtailment” of manufacturing and production
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
ABRAMS V. UNITED STATES 27