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to remove all access restrictions from the process. Yet, in Roe the Court was forced to address the more difficult question of the constitutional status of the unborn. The problem was significant since, historically, the question of abortion had been intertwined with the question of when life begins.221 Faced with cogent arguments that the unborn offspring of human beings are individuals protected by the Constitution, 222 the Court knew that in order to legalize abortion, it had “to resolve the difficult question of when life begins;" the nature of the issue presented left it no other choice.



A. Introduction

At the outset of this discussion of the medical aspects of the abortion cases, especially those considered in Doe v. Bolton, it is imperative that several facts be kept in mind. The preservation of health and the means by which the state may foster the attainment of this concededly valid goal are matters closely intertwined with those discussed in Part I. There are differences, however, and it is a serious mistake to presume that the Supreme Court's holding in Roe v. Wade—that there is a "right" to elective abortion conclusively settles the questions raised by that holding in the area of health care services.

However, Roe v. Wade overlaps with Doe v. Bolton in its discussion of state regulation of the medical aspects of abortion.e23 Although the main issue in Roe concerned the existence of state power to protect the unborn by restricting access to abortion, the Court did not confine its discussion to that topic. Basing much of its decision upon the premise that abortion laws were passed in order to protect women from dangerous medical procedures, the Court, on finding such a rationale no longer supportable, proceeded to strike down virtually all access restrictions upon the abortion procedure.224 Deciding to take this reasoning one step further, the Court then inquired into the necessity and utility of state health regulations which had grown up around legal abortion practices in an analysis going beyond the traditional "rational basis” test. While the greater portion of the Court's reasoning in this area may be found in Doe v. Bolton, the basic regulatory frame1975]

221. See, e.g., Commonwealth v. Parker, 55 Mass. (9 Pet.) 263 (1845).

222. See, e.g., Danforth v. Rogers, 486 S.W.2d 258, 259 (Mo. 1972); Thompson v. State, 493 S.W.2d 913 (Tex. Crim. App. 1971).

223. Roe, 410 U.S. 113, 165 (1973). 224. See Part I supra.



work upon which the states are permitted to construct constitutionally acceptable regulations lies in the trimester approach of Roe.225

Doe v. Bolton presented the analytically separate issue of the extent to which the state may regulate abortion procedures in order to effectively safeguard maternal health more clearly than that issue was presented in Roe v. Wade. A close reading of the majority opinion in Doe, however, reveals that the Court was either unable or unwilling to separate the distinct problems presented by the two issues. The medical regulation issue involves two questions: (1) may the state, in order to effectuate its interest in preserving maternal health, regulate the abortion procedure at all; and (2) if so, to what extent?

These two questions are the focus of Part II. Throughout, the discussion assumes that the Court's decision regarding access to legal abortion remains in force.

Roe severely limited the state's regulatory power during the first trimester of pregnancy. Save for requiring that the procedures be performed by a physician, the state may not impose any additional health care standards.226 Only after the onset of the second trimester may the state regulate abortion procedures at all. During the second and third trimesters, however, the state must confine its regulations to matters involving maternal health,227 but even then the decision in Doe precludes it from requiring that abortions be performed in fully equipped hospitals228 and from imposing mandatory consultation requirements upon the physicians who are to perform the procedures.229

While it is true that one's perspectives on the need for free accessibility to legal abortion will influence one's perceptions of what is "proper" in this area, the need for objectivity is great.

B. The Standard of Review Although abortion involves many nonmedical considerations and decisions, it is primarily a medical procedure. As such it is subject to reasonable regulation in the public interest. 280 Since a state has an

225. Roe, 410 U.S. at 163-66. 226. Id.

227. Id. During the post-viability period, however, the rule regarding protection of the unborn is relaxed to some degree and regulations to maximize their protection are permissible. Further, it is to be noted that the state is under no obligation to protect the unborn at this time. Apparently the Court felt that even after “viability," the unborn could claim no protection under the Constitution.

228. Doe, 410 U.S. at 195. See also Hallmark Clinic v. North Carolina Dept. of Human Resources, 380 F. Supp. 1153 (E. D. N. C. 1974) (three-judge court).

229. Doe, 410 U.S. at 199.
230. Williamson v. Lee Optical Co., 387 U.S. 483 (1957).

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interest in the quality of all health care delivered within its borders, it may reasonably prescribe certain minimum standards for the distribution and quality of medical services, including abortion. Indeed, whether such power rests upon the concept of the state's police power or upon a generalized “interest” analysis, it is fair to assume that protection of the public health is among the “powers inherent in every sovereignty”231 which may be limited by the federal courts only to the extent required by the Constitution.232

The limitations upon state power to regulate the medical aspects of abortion mentioned in the introduction to Part II are the result of the Court's independent evaluation of the necessity and utility of particular regulations to the effective distribution of medical services. The problem with this approach is that it was entirely inappropriate to the Court's function as an appellate tribunal for it to strike down state regulatory schemes on constitutional grounds unless it was prepared to determine that the regulations were without rational basis.233 The Court did this in neither Roe v. Wade nor Doe v. Bolton. Instead, it held the states to a higher standard of review.234

This departure from the traditional standard of review is apparently explained by the Court's concern that state health regulations might turn into "roadblocks” barring access to legalized abortion.235

This concern was, perhaps, understandable in light of the Court's sweeping invalidation of long-established state abortion policies, but a mere “concern” should not, in itself, support a departure from the traditional standard. It does not appear from the facts of either Roe or Doe that there was any danger of official disregard of the Court's directive concerning free access to legal abortions;286 the statutes invali

231. The License Cases, 46 U.S. (5 How.) 504 (1847); accord, Poe v. Ullman, 367 U.S. 497 (1961) (Harlan, J., dissenting); Rosen v. Louisiana State Bd. of Medical Examiners, 318 F. Supp. 1217, 1229 (E.D. La. 1970), vacated mem., 412 U.S. 902 (1974) (pursuant to Roe v. Wade).

232. Barron v. Mayor and City Council of Baltimore, 32 U.S. (7 Pet.) 243 (1833). 233. Williamson v. Lee Optical Co., 387 U.S. 483 (1957). 234. See Doe, 410 U.S. at 195. 235. Id. at 199.

236. The Georgia abortion statute challenged in Doe was based upon the American Law Institute's Model Abortion Act, and was considerably more flexible than the Texas statute challenged in Roe v. Wade. While the Georgia law was not as flexible as those of New York or Hawaii, that fact does not support the presumption that Georgia would have refused to accept the Court's access ruling. Obviously, the state was not so opposed to abortion as to prohibit it entirely.

Furthermore, the Court made much of the argument that the restrictions placed on abortion were unlike those of any other medical procedure. The answer to this argument is that no other medical procedure is like abortion. Both the Texas and Georgia abortion statutes explicitly recognized that fetal as well as maternal interests are involved in an abortion. Thompson v. State, 493 S.W.2d 913 (Tex. Crim. App. 1971); Ga. STAT. ANN. 1975]

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dated were penal provisions.237 The Court should have waited for a case actually presenting the problem of “roadblocks” before attempting to fashion a solution.

To presume that all health regulations during the first trimester were roadblocks was speculation in its purest form. It is settled that "the judiciary may not restrain the exercise of lawful power on the assumption that [a] wrongful purpose or motive (will] cause the power to be exerted.”238 Such matters are most properly resolved by prompt judicial action upon evidence clearly demonstrating an invalid state purpose.

C. Deficient Studies and Definitions An examination of the Court's approach to the medico-regulatory aspects of abortion cannot end with the assertion that an inappropriate standard of review was employed in reaching the decision. The Court's reasoning suffers from even deeper flaws. Its blanket restrictions upon state power to regulate, especially in the first trimester of pregnancy, are not only inconsistent with its own definition of "health,” but also ignore the fact that a state might accept the Court's decision on the access issue, yet remain firmly committed to a policy whereby it would seek to make the available procedures as safe as possible.

In Doe v. Bolton, the Court reaffirmed its prior holding that “health” encompasses many personal interests aside from purely physical health, such as familial circumstances, mental or emotional needs, financial ability, and age.239 The use of such a standard to define in part the interests which must be considered in allowing a woman to procure an abortion presents a seemingly inexplicable inconsistency in the Court's reasoning when that same standard is not applied in gauging the permissibility of state regulatory schemes designed to further maternal interests.

Perhaps the most obvious example of this incongruity is the virtually complete abrogation of state power to regulate during the first

§ 26-1202(c) (1972). Once the Court had determined that the protection of fetal interests was not a matter with which a state could validly concern itself for at least the first 6 months of pregnancy, the rationale for disparate access restrictions was no longer constitutionally valid. In the context of Doe v. Bolton these restrictions were the requirements of state residency, committee approval, and, to a lesser extent, twophysician concurrence. The other health regulations involved in Doe merely reflected state policy judgments regarding the necessity of safety standards. Nowhere in either opinion did the Court go so far as to say that the remaining requirements were irrational; it merely held, in effect, that they were unnecessary to the attainment of state goals.

237. Ely, supra, note 168, at 194 n.7.
238. McCray v. United States, 195 U.S. 27 (1904).

239. Roe, 410 U.S. at 153; Doe, 410 U.S. at 192; accord, United States v. Vuitch, 402 U.S. 62 (1972).



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trimester of pregnancy. The Court, after adopting an extremely broad definition of health, restricted the state's power to consider the factors comprising this broad definition in devising a regulatory scheme to protect maternal health. The Court rejected the contention that first trimester abortion remains an inherently dangerous medical procedure,240 and held, in effect, that early abortion, “although not without its risk,"241 is, for constitutional purposes, now safer than normal childbirth.242 Evidently the majority was impressed by the "now established medical fact ... [that] until the end of the first trimester mortality in abortion is less than mortality in normal childbirth,"248 for this fact is the sole basis upon which the first trimester prohibitions are

But would such a fact, even if established beyond any reasonable doubt,245 destroy the constitutional validity of the regulations being examined? Clearly it would not.


240. Roe, 410 U.S. at 149, 163.
241. Roe, 410 U.S. at 149.
242. Doe, 410 U.S. at 190.
243. Roe, 410 U.S. at 163.
244. Id.

245. This “fact" is not nearly so well established as the Court would have one believe. Data from countries having wider experience with legal abortion does not support the contention. See Brief for Certain Physicians Professors and Fellows of the American College of Obstetrics and Gynecology as Amicus Curiae for Appellees at 3743, Roe v. Wade 410 U.S. 113 (1973) (hereinafter cited as Brief for Certain Physicians), wherein the following figures were presented for the Court's examination:


Abortion Mortality/

Mortality/ Live

100,000 100,000 Country/State


Abortions Deaths Abortions Births Denmark (92) 1961-66


30 10-20
England and
Wales (93)




Abortion mortality higher than maternal

mortality Sweden (94)

30,600 12

39 14.0 (95) Yugoslavia

(Skopje Univ.)
(96) (106)



96.5 (97) Hungary (98) 1964-68 939,800



49.7 (99) Oregon (100)



8.4 Maryland (101) 1968-70



40.5 23.1 (102)



Abortion Mortality/ Abortions


100,000 1 st

100,000 Live Country/State

Year Trimester Deaths Abortions Births Denmark (92) 1961-66

8,684 2

23.0 10-20

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