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)

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.

• "'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

"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].