The Law on Abortion in Pennsylvania
A Fact Sheet of the PA Pro-Life Federation
Abortion in Pennsylvania
Brief summary of current law (the background cases and a more complete description of the law follows):
The Pennsylvania Abortion Control Act was passed in 1989, but held up by court injunction until May, 1994. Here is a summary of the provisions of the state law which were upheld by the U.S. Supreme Court inPlanned Parenthood v. Casey and which remain the law of the state today.
Abortion for unemancipated minors requires the consent of at least one parent prior to abortion, unless a judge rules the minor is competent to make the decision herself.
Women are provided a right to know for informed consent. 24 hours prior to an abortion, the abortionist must offer the woman information about the gestation of her baby, the development of the preborn child, the physical dangers of abortion for her health, and alternatives available to her, including financial assistance if she bears the child. The mother is allowed under the law to refuse any or all of this information, but the law requires the abortionist to make it available. The woman then must take 24 hours to reflect on her decision before the abortion can be done.
Abortion is legal for any reason by any means during the first six months of pregnancy, but in the last trimester of pregnancy, abortion is restricted only to cases when the life of the mother is seriously threatened or when pregnancy would result in irreversible impairment of a major bodily function.
In 2011, Pennsylvania lawmakers passed a set of new abortion center regulations known as Act 122. Written in response to the horrific conditions found inside a West Philadelphia abortion center run by Kermit Gosnell, Act 122 requires that abortion facilities be licensed as outpatient surgical centers and subject to regular inspections. The act went into effect in June 2012. Prior to Act 122, hair and nail salons in Pennsylvania were subject to greater scrutiny than abortion centers.
1973- Roe v. Wade
On January 22, 1973, in what one dissenting Justice referred to as "an exercise in raw judicial power," the U.S. Supreme Court ruled that the "right to privacy" encompasses a woman's right to undergo an abortion. In doing so, the Court struck down all existing state laws on abortion and created new abortion law for the entire United States. In Roe v. Wade the 7-2 majority spoke of "trimesters" and "viability," creating the appearance that states could protect preborn children after viability, except in cases when the mother's "health" was endangered. However, Roe's companion case, Doe v. Bolton, defined health to include "all factors -- physical, emotional, psychological, familial, and the woman's age . . . relevant to the well being of the patient." Thus, for all practical purposes, in 1973 the U.S. Supreme Court legalized abortion on demand throughout pregnancy for any reason or no reason.
Thirteen years later in Thornburgh v. American College of Obstetricians and Gynecologists, the court extended the abortion privacy doctrine of Roe v. Wade by striking down a Pennsylvania law very similar to the law that they would later uphold in Planned Parenthood v. Casey. So extreme was the Thornburgh ruling that Justice Warren Burger, an original vote in favor of Roe, wrote a stinging dissent indicating that if he had envisioned that Roe v. Wade would have precluded moderate regulations such as informed consent, he would have never voted in favor of Roe.
Then in 1989 came the first ray of hope for those who had struggled for 16 years to restore some sanity to abortion law in the United States. That hope came in the form of Webster v. Reproductive Health Services. The significance of the Webster decision was not so much in the specifics of the law but rather in the reasoning of the majority that in effect reversedThornburgh by establishing that the standard of review for abortion law was not "strict scrutiny" but rather "undue burden," a lesser standard that would in all likelihood allow abortion regulations but not actual restrictions. It meant that the Court no longer held that abortion must be entirely unrestricted, but that restrictions could not impose what the Court would deem an "undue burden" on mothers seeking abortion. The door had been opened for some modest regulation of the abortion industry.
1989- Pennsylvania Abortion Control Act
In the fall of 1989 the Pennsylvania legislature by substantial majorities (143-58 in the House and 33-17 in the Senate) passed the 1989 Abortion Control Act. It was signed into law by Governor Robert P. Casey. Pro-abortion groups challenged provisions involving informed consent, spousal notification, and confidential reporting requirements but allowed two provisions -- limitations on abortions after the sixth month (only to save the life of the mother or when pregnancy would result in "irreversible impairment of a major bodily function") and no abortion for the purpose of sex selection -- to go into effect. Those two aspects of the law have been in effect and unchallenged since then.
In August of 1990 a U.S. District Judge issued an extremely unfavorable and hostile opinion striking down most of the challenged provisions of the Act. The Commonwealth appealed this ruling to the Third Circuit Court of Appeals. A previously passed and challenged provision of the 1988 Abortion Control act involving parental consent, which had been pending at the Third Circuit level, was joined to the 1989 Abortion Control Act provisions and oral argument was heard in February of 1991.
Eventually the law reached the U.S. Supreme Court where most of its original provisions were upheld. The spousal notification requirement was struck down.
The following sections of the Pennsylvania law were upheld in Planned Parenthood v. Casey and went into effect in May, 1994 and remain unchanged in the law today. These are some of the key provisions of the Abortion Control Act. Dozens of other states have passed or are seeking to pass similar legislation.
No abortion shall be performed or induced except with the voluntary and informed consent of the woman ... Except in the case of a medical emergency, consent to an abortion is voluntary and informed if and only if:
At least 24 hours prior to the abortion, the physician who is to perform the abortion or the referring physician has orally informed the woman of:
The nature of the proposed procedure or treatment and of those risks and alternatives.
The probable gestational age of the unborn child at the time the abortion is to be performed.
The medical risks associated with carrying her child to term.
At least 24 hours prior to the abortion, the physician ... or a qualified physician assistant, health care practitioner, technician or social worker ... has informed the pregnant woman that:
a) The (state government) publishes printed materials which describe the unborn child and list agencies which offer alternatives to abortion and that ... a copy will be provided to her free of charge if she chooses to review it.
b) Medical assistance benefits may be available for prenatal care, childbirth and neonatal care.
Except in the case of a medical emergency or except as provided in this section, if a pregnant woman is less than 18 years of age and not emancipated (supporting herself), a physician shall not perform an abortion upon her unless he first obtains the informed consent of both the pregnant woman and one of her parents.
If both of the parents or guardians of the pregnant woman refuse to consent ... or if she elects not to seek the consent ... the court of common pleas of the judicial district in which the applicant resides or in which the abortion is sought shall ... authorize ... the abortion if the court determines that the pregnant woman is mature and capable of giving informed consent.
For the purpose of promotion of maternal health and life by adding to the sum of medical and public health knowledge through the compilation of relevant data and to promote the Commonwealth's interest in protection of the unborn child, a report of each abortion performed shall be made to (state officials). The report forms shall not identify the individual patient by name and shall include the following information:
Identification of the physician.
The county and state in which the woman resides.
The woman's age.
The number of prior pregnancies and prior abortions of the woman.
The gestational age of the unborn child at the time of the abortion.
The type of procedure performed or prescribed and the date of the abortion.