Hill-Burton Hospitals after Roe and Doe: Can Federally Funded Hospitals Refuse to Perform Abortions


In the landmark decisions of Roe v. Wade and Doe v.Bolton, the Supreme Court balanced the conflicting interests of the pregnant woman, the fetus and the state, and proclaimed in its Roe opinion the following rules. First, during the initial trimester of pregnancy, abortion decisions are within the sole discretion of the woman and her physician. Thereafter, from the beginning of the second trimester, the state’s interest inmaternal health becomes sufficiently “compelling” that it may regulate abortion procedures to the extent such regulation reasonably relates to maternal health. Finally, at the point of viability of the fetus, the state’s “compelling” interest in potential life becomes controlling and it may proscribe all abortions except those necessary to save the life or health of the mother. From the period of conception to the “compelling” point, the decision to terminate a pregnancy, arrived at between a woman and her physician, “may be effected by an abortion free of interference by the state.”

While Roe and Doe guarantee a woman’s right to choose to terminate her pregnancy free of state interference within the guidelines set by the Court, they do not guarantee her an absolute right to an abortion. To the extent that states do not subsidize abortions, a woman’s ability to obtain an abortion is limited by her ability to pay. Financial considerations aside, the freedom from state interference is of little consequence unless facilities suitable for the performance of abortions are located within a reasonable distance of the woman’s place of residence and are willing to perform such operations. The Court’s abortion decisions do not require the states toprovide abortion facilities. States need only refrain from “interfering” with a woman’s decision to obtain an abortion before their interest in maternal health or unborn life becomes compelling.

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