SSRN contains a new law review article by Professor Tracey Thomas, Back to the Future of Regulating Abortion in the First Term. Professor Thomas evidences her commitment to abortion rights both in the argument she makes and the sources she cites. Her history of abortion regulation in the United States is drawn exclusively from James Mohr’s Abortion in America (1978) and two legal articles by Cyril C. Means, Jr., an abortion-rights advocate and professor of law at NYU. Professor Thomas seems unaware of the more recent and comprehensive work on the history of abortion by Joseph Dellapena, Dispelling the Myths of Abortion or even the fact that the historical record of abortion regulation in America is deeply contested. This oversight, whether intentional or due to a lack of knowledge, reduces the reader’s confidence regarding the thoroughness of Professor Taylor’s historical account of the two Supreme Court cases that are the primary focus of her article, City of Akron v. Akron Ctr. for Reproductive Health, 462 U.S. 416 (1983) and Ohio v. Akron Ctr. for Reproductive Health, 497 U.S. 502 (1990).
Yet even with that caveat, the article is still worth reading by those interested in the Court’s treatment of parental involvement in a minor’s decision to obtain an abortion and other regulations applied during the first trimester of abortion. Professor Thomas describes her article this way:
“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.'”