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Roe v. Wade

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Supreme Court on Abortion - Roe vs. Wade legalized abortion for full nine months

The Supreme Court on Abortion: A Survey

by Mark Tushnet, from Abortion, Medicine, and the Law, Third Edition, 1986, pp. 162

"The final stage of pregnancy under Roe v. Wade occurs after the fetus becomes viable[4]. After viability, the state could regulate or prohibit abortions unless they were ``necessary, in appropriate medical judgement'', to preserve the life or health of the woman. This standard must be read, however, in light of the Court's decision the same day in Doe v. Bolton, that clinical judgement ``may be exercised in light of all factors -- physical, emotional, psychological, familial, and the woman's age -- relevant to the well-being of the patient[5]. Thus, the Court nominally allowed the state to prohibit post-viability abortions except in apparently limited cases, but it actually defined the limitation in a way that bars the state from prohibiting such abortions if physicians are willing to perform them.

In a later case the Court sustained a statute defining viability as a stage where the fetus's life ``may be continued outside the womb by the natural or artificial life-supportive systems''[6]. This definition allows the state to regulate the decision to have an abortion, a decision made while the fetus is in the womb, on the basis of what must at that time be a prediction about what will happen after the fetus is removed from the womb. The uncertainty of this prediction might lead physicians to refrain from performing abortions if, as Roe seemed to suggest, states could readily prohibit post-viability abortions. The Court thus stressed that viability was essentially a medical judgement, and invalidated a law making physicians criminally liable for performing abortions when the fetus ``is viable'' or when there is ``sufficient reason to believe that the fetus may be viable''[7]. The threat of criminal liability in the face of the uncertainty associated with viability determinations unacceptably burdened the abortion decision.

In the same case the Court held unconstitutionally vague a provision requiring that physicians use the abortion technique making fetal survival most likely, so long as no other technique was necessary to protect the woman's health or life. These decisions severely restrict what the state may do to protect the potential life of the fetus even after viability, when Roe v. Wade holds that the state's interest in protecting potential life is compelling.

[...] In sum, the Court has substantially restricted the kinds of regulations a state may adopt to protect potential life by requiring that abortions be allowed where necessary to protect the woman's life or health and then by giving ``health'' a broad definition."

[4] 410 U.S. at 163-164
[5] 410 U.S. 179 (1973)
[6] Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 63--65 (1976)

[7] Colautti v. Franklin, 439 U.S. 379 (1979)

Schulte v. Douglas, 567 F.Supp. at 526 (1981)

C. "Sound medical judgment"

[3] All three challenged sections of the Nebraska abortion laws premise conduct upon the exercise of "sound medical judgment of the attending physician." This phrase is used in reference to the viability determination required by [section] 28-329, the choice of abortion procedure required by [section] 28-330, and the treatment of a child aborted alive required by [section] 28-331. The plaintiffs argue that the sections, by the use of this phrase, contain a fatal ambiguity in that none specifies whether "sound medical judgment of the attending physician" describes a purely subjective standard or whether it describes a mixed subjective and objective standard. If, as the plaintiffs urge, the phrase "sound medical judgement of the attending physician" means that someone other than the attending physician shall determine whether the attending physician's judgment was "sound," the sections expose a physician to potential criminal liability for a medical decision which, under some unknown, undefined medical standard, was erroneous.

I am unpersuaded by the plaintiffs' argument. As I stated in the June 22, 1981, memorandum granting preliminary relief:
  • "'Sound medical judgment' does not mean that the physician's judgment is susceptible to some other person's review to determine its soundness from a medical standpoint. The phrase is no more objective than the phrase 'best clinical judgment,' which was approved in Doe v. Bolton, 410 U.S. 179, 191-192 [93 S.Ct. 739, 747, 35 L.Ed.2d 201] (1973). The adjectives are more an urging to the physician's subjective judgment than a warning of an objective overseeing by another. As judgment of a physician should be--is expected to be in all of his or her profes- sional undertakings--medical, rather than personal, so it should be sound, rather than flippant or thoughtless. The judgment, in the final analysis, is to be the judgment 'of the attending physician' and of no one else. 'Sound medical judgment of the attending physician' gives the physican 'the room he needs to make his best medical judgment,' the term used in Colautti v. Franklin, 439 U.S. at 397 [99 S.Ct. at 686]." Id., at p. 3

See, also, Roe v. Wade, 410 U.S. at 165, 93 S.Ct. at 732, using the phrases "appropriate medical judgment" and "professional judgment;" and Charles v. Carey, 627 F.2d 772, 787 (C.A. 7th Cir.1980), holding that an Illinois abortion statute's requirement that a physician determine "in his best judgment" that an abortion is necessary was not unconstitutionally vague for purposes of a motion for preliminary injunction.

"New Constitutional and Penal Theory in Spanish Abortion Law", Richard Stith, J.D., Ph.D, in Abortion, Medicine, and the Law, Edited by J. Douglas Butler and David F. Walbert, Facts on File, 1992, pg. 382.

"Abortions destructive of the fetus must be permitted, even just before birth, if they promote what the [Supreme] Court calls ``health'' but which it defines broadly to include virtually every significant reason a woman might have for a third trimester abortion. [59]

  • [59] Roe's companion case, which should be ``read together'' with the former (according to Roe at 165), defines ``health'' to be related to ``all factors ... relevant to the well-being of the patient'', Doe v. Bolton, 410 U.S. 179, 192 (1973). The _Thornburgh_ Supreme Court opinion, id., does not refer to this definition, but the Court of Appeals did so in the decision under review. That decision states ``It is clear from the Supreme Court cases that `health' is to be broadly defined. As the Court stated in _Doe_, the factors relating to health include those that are `physical, emotional, psycho- logical, familial, [as well as] the woman's age' [quoting from _Doe_].'' The court of appeals goes on to say that a law which punished postviability abortions which were done to avoid the ``potential psychological or emotional impact on the mother of the unborn child's survival'' would be clearly unconstitutional; 737 F.2d 283, 299 (1984)."

Excerpt from the oral arguments presented by Kathryn Kolbert, counsel for the ACLU, in Planned Parenthood v. Casey. Source: The New York Times, April 23, 1992

"Ms. Kolbert: Our position is that Roe, in establishing a trimester framework, in establishing strict scrutiny, and in also establishing that the rights of women and the health interests of women always take precedent over the state's interest in potential life. Those hallmarks of Roe are central to this case, and are central to continuing recognition of the right as fundamental. Should the Court abandon that --

Justice O'Connor: But did the Court hold that, even after the viability of the fetus in Roe?

Ms. Kolbert: What the Court --

Justice O'Connor: Do you think that was a correct characterization of Roe's holding that you just gave, that the woman's interest always takes precedence? Is that true under Roe, in the latter stages of pregnancy?

Ms. Kolbert: Your Honor, under Roe, after the point of viability, that is the point when the fetus is capable of survival, the state is free to prohibit abortion but only so long as it is necessary, only so long as the woman's health interests and life interests are not at stake.

That is, potential fetal life is a recognized value, is a recognized state interest after the point of viability; but when in conflict, when the woman's health interest is in conflict with those state interests and potential life, those women's interest, the women's interest in health take precedent."

"Summary and Analysis of State Laws Relating to Abortion", Barbara Kaiser, Harriet F. Pilpel, and Eve W. Paul, in Family Planning, Contraception, Voluntary Sterilization and Abortion: An Analysis of Laws and Policies in the United States, Each State and Jurisdiction.

A Report of the Office for Family Planning Health Services Administration
U.S. Department of Health, Education, and Welfare 1978

Prepared by the Alan Guttmacher Institute

"The landmark events in establishing the basic law governing abortion in the United States were the January 1973 decisions of the United States Supreme Court in Roe v. Wade[1] and Doe v. Bolton[2]. [...]

The Roe and Doe decisions have these results: [...]

(3) After the fetus is viable, a State may regulate in its interest, even to the extent of prohibiting abortion unless to save the life or health (including the mental health) of the woman. [...]

Roe and Doe held the right to abortion to be a fundamental right, but the decisions also involved the medical profession in the decision-making process. A corollary is that a woman's decision to exercise her rights is in part dependent on the availability of health institutions and professionals willing to perform abortions."

B.B. Sendor, "Medical Responsibility for Fetal Survival under Roe and Doe", 10 Harvard Civil Rights-Civil Liberties Law Review 444,465 (1975)

... Even during viability, when the state may proscribe certain abortions because of a ``compelling'' interest in potential life, it may not do so when abortion ``is necessary, in appropriate medical judgement, for the preservation of the life or health of the mother[18].'' In Doe, the Court stated that the term ``health'' should be given a broad reading:

  • [T]he medical judgement may be exercised in light of all factors-- physical, emotional, psychological, familial, and the woman's age--relevant to the well-being of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgement. And it is room that operates for the benefit, not the disadvantage, of the pregnant woman[19].

In short, Roe and Doe give the woman (1) a privacy interest that outweighs any rights which may be asserted on behalf of the fetus up to the point of viability, and (2) a broadly defined health interest which prevails over any interest asserted on behalf of the fetus throughout the term of pregnancy."

"In Doe v. Bolton, 410 US 179, 35 L Ed 2d 201, 93 S Ct 739, procedural requirements contained in one of the modern abortion statutes are considered. That opinion and this one, of course, are to be read together[67]."

Roe v. Wade, 35 L Ed 2d at 184 (1973)

82 Yale Law Journal at 921 (1973), John Hart Ely, "The Wages of Crying Wolf: A Comment on Roe v. Wade"

[...] At the point at which the fetus becomes viable[17] the interest in protecting it becomes compelling[18], and therefore from that point on the state can prohibit abortions except--and this limitation is also apparently a constitutional command, though it receives no justification in the opinion--when they are necessary to protect maternal life or health[19].

[19] 93 S. Ct. at 732 [...] This holding--that even after viability the mother's life or health (which presumably is to be defined very broadly indeed, so as to include what many might regard as the mother's convenience, see 93 S. Ct. at 755 (Burger, C.J., concurring); United States v. Vuitch, 402 U.S. 62 (1971), must, as a matter of constitutional law, take precedence over what the Court seems prepared to grant at this point has become the fetus's life, see p. 924 infra-- seems to me at least as controversial as its holding respecting the period prior to viability."

"I agree that, under the Fourteenth Amendment to the Constitution, the abortion statutes of Georgia and Texas impermissibly limit the performance of abortions necessary to protect the health of pregnant women, using the term health in its broadest medical context."

Roe v. Wade, 35 L Ed 2d at 185 (1973)

"The vicissitudes of life produce pregnancies which may be unwanted, or which may impair ``health'' in the broad Vuitch sense of the term, of which may imperil the life of the mother, or which in the full setting of the case may create such suffering, dislocations, misery, or tragedy as to make an early abortion the only civilized step to take. These hardships may be properly embraced in the ``health'' factor of the mother as appraised by a person of insight. Or they may be part of a broader medical judgement based upon what is ``appropriate'' in a given case, though perhaps not ``necessary'' in a strict sense."

Roe v. Wade, 35 L Ed 2d at 190 (1973)

A Lawyer Looks at Abortion, Lynn D. Wardle and Mary Anne Q. Wood, Brigham Young University Press, 1982, pp. 137-138.

"The Supreme Court has defined health in some contexts to include ``all factors--physical, emotional, psychological, familial, and the woman's age--relevant to the well-being of the patient[50]''. If the postviability abortion is performed because it is ``necessary'' to avoid the burdens that pregnancy, childbirth, and motherhood would place on a woman's emotional and psychological health, could not her doctor assume that it would be better if a method were chosen and every step taken during the abortion itself to insure that the fetus did not survive[51]?

The prospect of a physician or a pregnant woman choosing a method of abortion more likely to kill the fetus, or of a physician taking steps during the abortion to insure the death of the fetus, for the sake of the woman's psychological and emotional comfort, seems to reduce the state's interest in potential life to meaningless proportions. Under such circumstances, the Supreme Court's invitation to states to regulate abortions after viability except when the abortion is necessary to preserve the life or health of a pregnant woman becomes a matter of the ``life or health'' exception swallowing the ``compelling state interest'' rule. Yet, the Court's decision in Colautti that the woman's health must prevail over the life and health of the fetus, augmented by the Court's broad definition of health, would appear to lend support to such a result[52]. A narrower definition of ``health'' in the context of choosing abortion methods and of the physician's duty of care to the fetus is obviously necessary to raise the state's interest in potential life above the level of mere exhortation and powerless concern.

In summary, the Colautti decision is problematic in its reliance on the viability standard and on the physician's judgment in determining viability. The Court's refusal to give an obvious and easy constitutional interpretation to the Pennsylvania statute is troubling. Finally, the invalidation of the standard-of-care provision, in conjunction with the Court's broad definition of health, seems to inhibit meaningful advancement of a state's compelling interest in potential life."

18 American Criminal Law Review at 603,604 (1981), Rosamond A. Barber, "Criminal Liability of Physicians: An Encroachment of the Abortion Right?"

"Less than half of the states have availed themselves of Roe's permission to regulate the availability of an abortion after viability. Seventeen states prohibit all postviability abortions unless necessary to preserve the life or health of the mother. Four more states proscribe abortions after a specific date unless the physician finds the abortion necessary for the woman's life or health. North Carolina dates this prohibition at twenty weeks; Massachusetts, Nevada, and South Dakota impose it at twenty-four weeks. New York prohibits abortion after the twenty-fourth week unless the procedure is necessary to save the life of the pregnant woman. Since the state's right to regulate or proscribe abortions does not attach until the point of fetal viability, these statutes define the latest date at which a fetus becomes viable. Performance of an abortion after the statutory limit that is not required for the preservation of maternal life and health subjects the physician to prosecution.

The constitutionality of several of these statutes is questionable. First, to specify the point of viability rather than leaving the determination to the physician may be beyond the power of state legislatures. Second, New York's statute appears to be unconstitutional because it prevents postviability abortions necessary for the mother's health, directing contradicting Roe's mandate that abortions must be available where necessary for the life or health of the mother. Third, many states allow the physician to perform a postviability abortion only to prevent ``permanent impairment,'' ``imminent peril,'' or other variously described threats to the woman's health[130]. Because they require a condition more severe than Roe's broad definition of health, these statutes unconstitutionally infringe on the abortion right."

[130] Ind. Code Ann. 35-1-58.5-2 (``substantial permanent impairment'') ; La. Rev. Stat. Ann. 40:1299.35.4 (``permanent impairment'') ; Mass. Gen. Laws ch. 112 12M (West Supp. 1979) (``substantial risk of grave impairment''); Neb. Rev. Stat. 28-329 (1978) (``imminent peril ... substantially endangers''); N.C. Gen. Stat. 14-45.1 (Supp. 1979) (``substantial risk ... gravely impair''); N.D. Cent. Code 14-02.1-03 (Interim Supp. 1979) (``substantial risk of grave impairment''); Utah Code Ann. 76-7-302 (1978) (``serious and permanent damage''); Wyo. Stat. 35-6-102 (1977) (``imminent peril ... substantially endangers'').

"Roe provides that the State, because of its legitimate interest in potential life, may regulate and even forbid abortions after a fetus becomes viable, ``except when it is necessary to preserve the life or health of the mother.'' Roe, 410 U.S. at 164, 93 S.Ct. at 732. The first sentence of ... [a section of the Louisiana abortion statute] while appearing to follow the guidelines set forth in Roe, uses the phrase ``to prevent permanent impairment to her health.'' This is not the same standard articulated in Roe, preservation of maternal health. [...] The Court finds that the requirement of permanent impairment impermissibly restricts the meaning of Roe."

Margaret S. v. Edwards, 488 F. Supp. at 196 (1980)

Abortion: The Dreaded Complication, PART II Originally appearing in The Philadelphia Inquirer, August 2, 1981 by Liz Jeffries and Rick Edmonds

Reprinted in The Congressional Record, April 21, 1986, S 4621

"According to a 1979 survey by Jeanie Rosoff of Planned Parenthood's Alan Guttmacher Institute, 30 states have laws regulating third-trimester abortions. Some of these laws prohibit or strictly limit abortions after the fetus has reached viability. Some require doctors to try to save abortion live-born babies. Only a few states have both types of laws.

In addition, a number of these laws have been found unconstitutional. Others obviously would be, in light of Supreme Court rulings. Virtually all the state laws would be subject to constitutional challenge if used as the basis of prosecution against an individual doctor."

"When the Supreme Court issued Roe, initial news accounts emphasized the part of the ruling that said a woman would be allowed to have an abortion without restriction during the first three months of pregnancy, when more than 90% of the country's 1.6 million annual abortions are done, according to the Alan Guttmacher Institute, a special affiliate of Planned Parenthood that does research on abortion and familiy planning.

Even now, 17 years later, some in the media write about Roe in terms that suggest it legalized abortion only during that first trimester; the New York Times, Los Angeles Times, Milwaukee Journal and Louisville Courier-Journal, among others have all mischaracterized Roe that way within the last year (although they have also characterized the decision correctly at times)."

"Bias seeps into news on abortion", by David Shaw, The Los Angeles Times, July 1, 1990.
Also in The Congressional Record, October 9, 1990 S 14814