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Procreation

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Matters concerning procreation are private. All adults possess a right to privacy in decisions concerning procreation, such as contraception and abortion. Additionally, the government may not unconstitutionally prohibit the distribution of contraceptives to minors.

In some cases, the government has constitutionally restricted the right to abortion. It is important to note that courts do not decide whether abortion is legal or illegal. Courts determine whether laws regulating abortion are constitutional and do not violate a right to privacy. It is the choice of Congress and state legislatures to enact (or not) laws regulating procreation.

Laws requiring physicians to notify the parents of a minor undergoing an abortion prior to the procedure have been held constitutional. The minor's right to privacy, in this instance, is less than the parent's right to notification, as long as she has the option to petition a court, known as a "judicial bypass," for permission.

Additionally, states may constitutionally regulate second and third trimester abortions by requiring hospitalization. States may also prohibit abortion in publicly funded hospitals to encourage a policy of childbirth over abortion. Under the current makeup of the U.S. Supreme Court, a woman's right to an abortion may not be "unduly burdened" prior to the viability of the fetus. The finding that an undue burden does not exist allows for laws requiring waiting periods, dissemination of certain materials to the woman and information required on consent forms. The requirement that a husband be notified has been declared unconstitutional because the Supreme Court has determined that the notification requirement is an undue burden.

Sidebar: An undue burden is a substantial obstacle to an abortion and is the current standard of review for abortion laws.

Sidebar: The Hyde Amendment prohibits the use of federal Medicaid funds for abortion procedures. Many states have followed suit. Funding for abortions is permitted in cases of rape or incest, as well as when a pregnant woman's life is endangered by a physical disorder, illness or injury.

Privacy in pregnancy is also protected. A hospital that tested, without consent, pregnant women for cocaine levels and gave the information to police violated their privacy rights against unreasonable searches and seizures.

When is a woman's right to terminate a pregnancy limited?

A woman may not terminate a pregnancy if the unborn child is viable in states where a law has been enacted with that prohibition. The law must allow for an exception if the health and life of the mother is at stake. Laws attempting to regulate a woman's right to choose a pre-viability termination of her pregnancy are unconstitutional.