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To me, it seems the government is overstepping its bounds when it restricts women's access/right to proper abortions.

Are there any legal documents stating that the government has a right to determine whether or not women can have abortions?

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    The obvious one that comes to mind is Roe V. Wade. Have you read up on that at all? – David says Reinstate Monica Feb 1 '17 at 3:01
  • Yes, I have, David – user6561 Feb 1 '17 at 12:33
  • @DavidGrinberg Roe v. Wade is a court decision, not a law. In theory, it's supposed to be an interpretation of an existing law, not a law authorizing something in and of itself. Of course, practice is a different matter. – reirab Feb 14 '17 at 22:46
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    @reirab The question was about legal documents, not specifically "the law." Also Row V Wade heavily influences abortion law in the states, so it is extremely relevant here. – David says Reinstate Monica Feb 14 '17 at 23:06
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    @reirab Court decisions can and do at times delegate power to the federal government. I also disagree about "this is what the question asks specifically". Either way, this is getting way out of scope for comments. Make a chat if you want to continue. – David says Reinstate Monica Feb 14 '17 at 23:54
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Most abortion bans are state laws

First, a bit of trivia. There is actually only one federal law against abortion, and it was passed relatively recently (2003). Other anti-abortion laws are state laws; the focus on Constitutionality and Roe v. Wade has to do with protecting women's Constitutional rights from infringement by individual states, not from federal laws. The landmark case of Roe v. Wade was actually a case of a private citizen ("Jane Roe" instead of John Doe) suing the state of Texas (the district attorney being named Henry Wade) because of Texas state laws against abortion.

If the lack of federal law on abortion surprises you, it would probably shock you that murder isn't a federal crime either, unless it meets certain criteria. More on this later.

PBABA

So now there is the one "anti-abortion" law, the Partial Birth Abortion Ban Act (PBABA).

If you read the text of this law, you'll notice this curious little clause:

Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both. [Emphasis added]

Why the note on commerce? Because the only Consitutional underpinning for this sort of law is the Commerce Clause of the Constitution, which reads:

The Congress shall have power...to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Why is it necessary to invoke the Commerce Clause? Because the Tenth Amendment limits federal authority to areas specifically called out in the Constitution, with anything left unmentioned falling to the states:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Is the Commerce Clause a legitimate legal basis?

Is this legitimate? Some scholars (like this one) don't really think so. But the Supreme Court upheld the law in April of 2007.

Commerce Clause is a catch-all

To wit, the Commerce Clause is also the underpinning for federal laws against murder, which explains these strange legal contortions found in the laws:

Section 1958 renders it illegal: 1) to travel or use facilities of interstate or foreign commerce; 2) with intent that a murder in violation of State or Federal law be committed;

Whoever travels in or causes another (including the intended victim) to travel in interstate or foreign commerce, or uses or causes another (including the intended victim) to use the mail or any facility of interstate or foreign commerce, with intent that a murder be committed in violation of the laws of any State or the United States as consideration for the receipt of, or as consideration for a promise or agreement to pay anything of pecuniary value, or who conspires to do so [violates this statute].

It is often a safe guess that, when encountering a federal law that seems like a bit of an overreach into states' authority, the justification is probably the Commerce Clause. It is peppered all over the federal lawbooks.

  • Thank you very much. I knew about the Commerce Clause but had no clue how it was tied to abortion laws. Now I know! – user6561 Feb 1 '17 at 12:34
  • @AleksandrH And knowing is half the battle! – Texas Red May 15 '18 at 22:16
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The other answers aren't wrong, but the specific question being asked:

Are there any legal documents stating that the [US Federal] government has a right to determine whether or not women can have abortions?

Really has only one answer: The Supreme Court's Opinion on the Landmark Case Roe v. Wade:

https://en.wikipedia.org/wiki/Roe_v._Wade

It essentially put restrictions on what states could restrict in terms of womens' access to abortions. Over time, the states were increasingly adding more and more restrictions to the ability to seek out an abortion. This decision changed that.

As for all the nuances of this issue (of which there are many)...in terms of what specific types abortions are allowed, which are not, under what conditions, what state restrictions there can be, what restrictions there can't be, federal funding, etc., well, that's been an ongoing debate ever since.

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What legal document gives the government the right to set rules about abortions?

I believe there's a widespread belief that the government's duty to set restrictions on abortion is implicit in the most important legal document of all (where U.S. law is concerned): The Constitution of the United States.

You may recall that the Constitution talks about protecting certain rights. For instance, the Fifth Amendment, listing various things which "no person" should be forced to endure, says (in part):

nor be deprived of life, liberty, or property, without the due process of law;

So we have the basic concept, enshrined in the Bill of Rights, that "no person" should be deprived of life and liberty in a hasty, arbitrary way. For instance: This means that capital punishment is constitutionally acceptable, in theory, but if someone wants to execute you for a crime, you must first get a fair chance to defend yourself in court, instead of one person just suddenly deciding: "Gee, I don't like him one bit -- he deserves to die -- so I think I'll have him executed later today, with no right of appeal!"

But, where the abortion debate is concerned, it was eventually realized that this stuff about "no person" left a Very Important Question hanging in the air: "When does a fertilized egg inside a pregnant woman start to become its very own 'person' within the sense of the constitution, and thus begins to acquire some or all of the protections guaranteed by the Constitution?" This question assumes the embryo or fetus (it becomes a "fetus" after about 8 weeks, I think) is gestating within the body of a woman currently residing on U.S. soil, of course -- if she's living in some other nation, then the U.S. Constitution doesn't really apply to her, nor to the growing bundle of cells in her womb, as I understand it.

The Constitution does not define what marks "the beginning of a human life" or "the beginning of your new status as a legal person" or anything similar. (Nor does it ever say, in so many words, that a pregnant woman has the "right" to get an abortion.)

So the United States Supreme Court has occasionally taken a crack at answering that question, over the years -- when does a fertilized ovum start to become a "person" in the Constitutional sense of the word? (And, of course, when does it finish the process of becoming a person?) Coming up with different results at different times.

For instance, in Roe v. Wade, a majority of the Court took the position that, during the first trimester, the woman can get an abortion whenever she pleases! I believe this basically meant that the Court was ruling that, during those first three months after conception, the "embryo" (and then "fetus") definitely is not yet a "person," not even partially, and thus has no independent constitutional rights to be considered in opposition to the wishes of the pregnant woman.

Then the rules for government regulation were supposed to be different in the second trimester, and different again during the third trimester (more or less). The general implication being that the fetus starts to acquire some protections during the second trimester, and has lots of protections (getting closer to the status of a "person who hasn't quite been born yet") during the third trimester.

With that said, let me note two things:

  1. I am not a lawyer, so take all this with a grain of salt.
  2. Roe v. Wade was not the last time the Supreme Court took a crack at this question, and thus their trimester-based approach is no longer considered to be the essential law of the land on this subject. (But I'm no expert on exactly how much things have changed since then, so I just stuck to that one quick example of where the lines were drawn at one point.)

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