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U.S. SENATE,

Washington, D.C., March 5, 1974. Hon. BIRCH BAYI, Chairman, Subcommittee on Constitutional Amendments, Committee on the Judiciary, U.S. Senate, Washington, D.C.

DEAR MR. CHAIRMAN: I am writing in behalf of the members of the Woodstock (Vermont) Right to Life Committee, who have sought my aid and assistance in the following matter.

The membership of the Committee is most anxious to have their statement in support of the Helms Human Rights Amendment included in the transcript of the hearings you will be holding tomorrow and Thursday, March 6th and 7th.

I would deeply appreciate your complying with this request.
Thanking you, I remain
Sincerely yours,

ROBERT T. STAFFORD,

U.S. Senator. Enclosure.

WOODSTOCK RIGHT TO LIFE COMMITTEE,

Woodstock, Vt. We, the undersigned members of the Woodstock Right to Life Committee support the Helms Human Rights Amendment, or any Constitutional amendment which protects the right to life from conception to natural death. We base our support on the Declaration of Independence which endows us with the unalienable right to life.

We know, as do all thinking persons, that life begins at conception. Since each of us was once a fertilized ovum, it is clear that the fertilized ovum is human life and, therefore, is entitled to the protection of the Constitution of the United States of America.

FRANCES W. GILLETT
JANE B. DUTTON
LILLIAN C. PHELAN
MILDRED P. WHITNEY
BEATRICE GYRA
JOAN R. JOHNSON
THOMAS F. DUTTON
TERRY DIETZ
FRANCIS G. DIETZ
SARAH M. DIETZ
ALICE FRICK

ABORTION: THE COURT DECISION AND SOME CONSEQUENCES OF A CONSTITUTIONAL

AMENDMENT

(By Phillips Cutright, Department of Sociology and Karen B. Cutright, School

of Law, Indiana University, Bloomington)

INTRODUCTION Recent actions by anti-aobrtion Congressmen and Senators to by-pass normal legislative routines suggest a real possibility that the Supreme Court decision on abortion will be nullified by a Constitutional amendment. The purpose of this article is to lay some groundwork from which one may judge various claims of anti-abortionists and to assess the likely consequences of a successful effort to repeal the Court decision.

It is not enough merely to say you support the Court decision-one should know what one is supporting. Similarly, it may help stiffen resistance to a proposed Constitutional amendment if its consequences are spelled out.

After reviewing the facts in each of the cases heard by the Court we summarize the Court's reasons for finding in favor of the appellants. The probable consequences of the Court's decision are then described. Finally, some consequences of a reversal of the Court decision that would follow from a Constitutional amendment are given, and some suggestions for local activities that may help check the anti-abortion movement are offered.

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THE COURT'S DECISION Roe v. Wade

In Roe v. Wade the Court was confronted with three appellants, a pregnant unmarried woman, suing on behalf of herself and other women similarly situated, who desired a safe, clinical abortion which was impossible for her in Texas, the state of her reisdence, and which she could not afford to obtain by traveling to another jurisdiction; a physician who was facing prosecution for performing allegedly illegal abortions, and a married couple who stated they were told that because of the wife's health, pregnancy would present complications, although it would not seriously endanger her health, and who wished to be able to secure a safe, legal, clinical abortion in the event of a contraceptive failure. The Court dismissed the doctor's suit on the ground that he could raise the issue of the unconstitutionality of the statute in the prosecutions pending against him. It also dismissed one which was too speculative to subject to judicial scrutiny.

The Court did find that the pregnant woman, called Jane Roe, had standing to sue. The District Attorney of Dallas Co., Texas, against whom Roe had originally brought her suit in a Federal District Court, claimed that Roe did not have standing to sue because, although she was pregnant at the time she instituted suit, that pregnancy had ended by the time the appeal was heard (some 3 years later), and, therefore, she had no present injury capable of judicial resolution. The general rule for appeal is that the issue must not have been made moot either by some event or by the passage of time; that is, it must be as capable of judicial resolution at the time of appeal as it was when it was first presented to a court. The Court took a realistic approach, noting that the 266-day gestation period of the human female virtually assures that in every such case the woman will be non-pregnant at the time of appeal, and that while a woman may be pregnant more than once she may still be unable (and unwilling) to be pregnant simply for appellate purposes. Therefore, it held that because pregnancy is both a common condition and one “ 'capable of repetition evading review,' Roe's case was not mooted by termination of her pregnancy.

Looking next to the purpose behind the 1898 Texas statute, the Court concluded that in prohibiting all abortions except those necessary to save the life of the mother, the legislators could have had only three things in mind. The first was a Victorian concern with prevention of illicit sex; but if this was the purpose of the law, it had no relation to the statute because the statute made no distinction between married and unmarried women. The second reason proposed as the purpose of the statute was to protect women from the dangers of abortion. This, in fact, seems to have been the reason for the Texas as well as other statutes. Abortion before antisepsis and modern medical techniques was much more dangerous than carrying the child to term. The third reason proferred for the abortion statute was the state's interest in protecting pre-natal life. The Court here noted that the predominance of scholarly evidence indicated that this was not the case; however. the Court refused to disregard a state's interest in this area even though this interest was not the reason behind the statute.

Jane Roe had challenged the statute on the ground that it violated her First, Fourth, Fifth, Ninth and Fourteenth Amendment rights. It is within the meaning of the first four of these that the Court has found a right of privacy, not specifically mentioned in the Constitution. The Fourteenth Amendment requires that for such a right to achieve the status of Constitutional protection it must be a personal right of a fundamental nature, one that is "implicit in the concept of ordered liberty.” In past decisions, the Court has found a right or zone of personal privacy in the right to marry the person of one's choice, the right to procreate, the right to limit the number of children through contraceptive use, the right to rear one's children according to one's own values, and the right to educate one's children according to personal precepts. However, none of these are absolute rights; they are all subject to the interest of society as a whole. Thus, while one has a right to control the uses of his body, he cannot endanger the rest of society by refusing to submit to vaccination.

In Roe v. Wade the Court held:

The right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restriction upon state action, or ... in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.

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The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm, medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the women a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved.

Although the decision to have an abortion comes within the woman's right of privacy, because the right is not absolute, at some point during her pregnancy the state's interest in protecting her health and potential life of the fetus becomes sufficiently compelling to "sustain regulation of factors that govern the abortion decision." Because abortion during the first trimester of pregnancy is safer than carrying the child to term, the state has no logical interest in safeguarding her health by denying abortion. During the second trimester, however, abortion becomes more difficult from a medical standpoint, and then, to protect her health, the state may regulate abortion. However, since we are dealing with a fundamental personal right, state regulation must be narrowly drawn so as not to infringe too greatly on that right. Therefore, the state is limited in its intervention in the abortion decision. It may require that the abortion be performed by a licensed physician in a facility that is state-licensed, for that would be consistent with its interest in protecting the health of the woman.

Although the Court refused to find, as the state of Texas urged, that the fetus was a person within the meaning of the Fourteenth Amendment, it did hold that once the fetus had survived the viability (i.e., it could live outside the womb independent of its mother), then the interest of the state in protecting potential life was sufficient to allow it to proscribe abortion entirely. unless the life or health of the mother was threatened by continued pregnancy. Doe v. Bolton

The second case before the Court, Doe v. Bolton, involved a married woman who had three other children, one of whom had been placed for adoption; the other two were in foster homes. She lived with her parents and their eight other children because her husband had left her and she had no means of support. She had been in a state mental hospital and was advised that an abortion was less dangerous to her health than pregnancy and caring for a child. She declared she was unable to support another child, just as she was unable to support her other three children. Mrs. Doe was a resident of Georgia and sought an abortion under that state's liberalized abortion law which permitted abortion in cases where it was necessary to save the life of the mother, to prevent a serious threat to health, or in cases where the fetus was the product of a rape, or was physically or mentally defective. To secure an abortion the statute required that the case come within one of the above exceptions, that it be so certified in writing by a physician, and agreed to in writing by two other physicians after their separate personal examinations of the woman. These decisions then had to be approved by three staff members of a hospital accredited by the Joint Commission on Accreditation of Hospitals and licensed by the state board of health. The abortion had to be performed in one of those hospitals, and the woman had to be a resident of Georgia.

Mrs. Doe petitioned an accredited hospital for an abortion after securing all the examinations and certifications necessary from physicians. Her petition was denied. She then sued the District Attorney on behalf of herself

i There were 16 deaths related to the 402.059 legal abortions in New York City over the 1970-1972 period—or 4 deaths per 100.000 legal abortions. This mortality risk may he compared to the most recent (1969) estimates of maternal mortality from deliveries and complications of pregnancy: childbirth and the puerperium—27 deaths per 100.000 live births. By race the risk of maternal death in 1968 was 17 among whites and 64 among nonwhite mothers per 100.000 live births. Hence the conclusion that the risk of mortality from legal abortion is much lower than is the risk of mortality related to carrying to term. It is worth noting that the risk of death from legal abortion goes to about zero when the gestation period and method of abortion is under 12 weeks and suction is used. In New York, for example, there was one death among 265,363 legal abortions using suction in the 1970–1972 period. That death occurred in the first year. No deaths from legal abortion using suction have been recorded among the 105,851 suction abortions since July 1, 1971. (J. Pakter, 1973)

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and other women similarly situated. The basis of the suit was substantially the same as that of the Roe case, an unconstitutional infringement of the right to personal privacy.

Thus, in this case the Court was concerned only with the medical procedures required by the state and the extent to which they impinged on the plaintiff's right to privacy which had been established by Roe. As to the requirement that the abortion be performed in a hospital accredited by the Joint Commission on Hospital Accreditation, the Court found that no other medical or surgical procedure was required to be done in a hospital so accredited, so long as the physicians were licensed and the hospital itself licensed by the state board of health. The state offered no reason why an abortion had to be performed in a hospital which was accredited. Other far more difficult procedures were carried out in non-accredited hospitals, and accreditation took place only after the hospital had been operating for a year. Since there was no reason why accreditation had any relation to protecting the woman's health, the requirement had no connection with the purpose of the statute and could not be upheld.

Similarly, the state of Georgia failed to show why the abortion had to be performed in a hospital facility. It made no showing why an abortion done in the first trimester could not be as safely performed in a nou-nospital facility, and that provision therefore had no relation to the purpose of the statute either.

The requirement of approval of the abortion decision by a staff committee was held to be invalid for the same reason. No other medical or surgical procedure required the approval of the three staff members (especially not after three other physicians had determined it was proper). Because no hospital need admit a patient for what is essentially elective surgery (barring the case of the mother's life), and because the statute exempted any staff member from performing or assisting an abortion if so doing would conflict with a moral or religious belief, the hospital had sufficient protection of its own interests without requiring the additonal "imposed overview." The Court further pointed out that the process of committee approval takes approximately 15 days (16 in Mrs. Doe's case), and this comes after the woman has already submitted to three examinations, another time-consuming process. This time element adds additional risk for as the pregnancy continues, the danger to the woman increases.

The Court disposed of the requirement of concurrence of two other physicians along the same lines. “Required acquiescence by co-practitioners has no rational connection with a patient's needs and unduly infringes on the physician's right to practice."

As to the requirement that the woman be a resident of the state, the Court found that this was not based on any policy of reserving state-supported facilities for state residents, as the statute applied to private facilities as well. There was no showing that the Georgia facilities were overburdened

Georgia residents nor that other types of surgery were forbidden to persons from out of state.

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SUMMARY

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The sum of these two decisions means simply that during the first trimester of pregnancy, a physician may perform a requested abortion without imposition of criminal penalties or other regulations by the state. During the second trimester, the state may regulate the performance of abortion to the extent that it may require a licensed physician perform it and do so in a licensed facility. During the last trimester, the state may proscribe abortion altogether, unless one is necessary to save the life or preserve the health of the woman. It does not mean that abortion is now “on demand." No one can demand that a physician perform this service. Also, no woman can be forced to have an abortion she does not want. When Does Human Life Begin?

Our summary of Roe v. Wade and Doe v. Bolton gives little attention to the Court's comment on the main claim of anti-abortion groups—that abortion is murder because life begins at the moment of conception. Actually, the Court dealt in some detail with this issue.

The problem inherent in finding a solution to the legal question of when human life begins had been well stated earlier and in the New Jersey Supreme Court by Justice Weintraub : “Contraception and abortion have this in

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