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conception or at some other point prior to live birth. In assessing the State's interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant · woman alone.213 Thus, the State's supposed interest in “potential” life (no longer “pre-natal” life) was ratified, without justification for such interest's ever having been presumed to exist.
A little further on in the opinion, while discussing the issue of the woman's right to privacy and whether it is absolute in this context, the Court observed:
(A) State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy
right involved, therefore, cannot be said to be absolute.214 In three short sentences, the Court determined that the State's interest becomes at some point compelling, and thus sufficient to counterbalance a woman's right to privacy. This was a highly significant step, for if the State could show only an interest-not a compelling interest-in so-called “potential” life, the State would not be permitted to interfere at all with the woman's fundamental right to privacy.215 To bolster this giant step, the Court cited many lower court decisions, most of which were pending before it, and concluded that,
(a)lthough the results are divided, most of these courts have agreed that the right of privacy, however based, is broad enough to cover the abortion decision; that the right, nonetheless, is not absolute and is subject to some limitations; and that at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant. We agree with
this approach.216 A statement such as this makes one wonder whether the Court sometimes arrives at its decision by the expedient method of polling the lower courts. As we have seen, such an approach to
215 Id. at 155, citing Kramer v. Union Free School Dist., 395 U.S. 621 (1969); Shapiro v. Thompson, 394 U.S. 618 (1969); Sherbert v. Verner, 374 U.S. 398 (1963).
216 Roe v. Wade, 410 U.S. at 155.
WOMEN AND THE SUPREME COURT
women's rights would not be unprecedented.21
Finally, the Court attempted to pinpoint exactly how far the State's interest in “potential" life may be permitted to infringe on a woman's right to privacy. Is the embryo or fetus a "person" for purposes of the fourteenth amendment? If so, the Court stated, "the (woman's) case, of course, collapses, for the fetus' right to life is then guaranteed specifically by the Amendment."218 One might well ask how this result automatically follows. If the woman has both a right to life and a fundamental right to privacy, and the fetus has, under the fourteenth amendment, a right to realize its potential life, would these conflicting interests be balanced by eliminating the woman's right to privacy completely? This is what the Court appeared to be saying. Other, and equally difficult, questions arise under this kind of analysis. How would the Court decide the issue of abortion if a woman were sure to die if she carried the pregnancy to term? What if she would probably die? What if her health would certainly be injured? What if the quality of her life, i.e., her happiness, would be significantly impaired? At what point is the woman's right to life placed into the balance?210
Fortunately for women, the Court held that “the word 'person,' as used in the Fourteenth Amendment, does not include the unborn."220 Thus, a woman's right to life plus her right to privacy may outweigh the State's interest in protecting "potential” life -but again, up to what point?
The Court declared that it was not obliged to "resolve the difficult question of when life begins."21 However, it did catalogue the various answers to this question which have been given by religious groups, philosophers, physicians and scientists, and the law: conception, "quickening," "viability," birth. It then posed a “different” question: when does the State's interest in protecting "potential" life (and "maternal” health) become "compelling"?222
As to the State's interest in the health of the "mother," this becomes compelling, "in the light of present medical know
27 See text accompanying notes 38-53, 202 supra. 218 Roe v. Wade, 410 U.S. at 156-57.
210 People v. Belous, 71 Cal. 2d 954, 458 P.2d 194, 80 Cal. Rptr. 354 (1969), cert. denied, 397 U.S. 915 (1970).
220 Roe v. Wade, 410 U.S. at 158.
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ledge,”:223 at the end of the first trimester. This is so because "until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth.”224 Before that point, therefore, the decision as to whether, and how, to abort rests with the woman's physician225 (no mention was made of the role of the woman herself). After that point, “a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health.''220 We will discuss this further below.
Getting back to the question of when the State's interest becomes “compelling," the Court voted for “viability":
With respect to the State's important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of mean- ,
ingful life outside the mother's womb.227 As one commentator has stated, “the Court's defense seems to mistake a definition for a syllogism.”228 The compelling point is at viability because then the fetus is presumably viable. Thereafter,
[t]he State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. 229
We can focus on the importance of all of this to women by posing two questions. First, who has the right to make the deci. sion as to whether or not to abort? The Court initially talks about a “woman's decision whether or not to terminate her pregnancy,”?230 yet the emphasis later shifts to a decision of the woman and her physician jointly,231 or to a decision of the physician alone.232 Finally, the language of Justice Douglas' concurring
2 In regard to the significance to women of tying their constitutional rights to such a rapidly changing norm, see discussion accompanying notes 237-42 infra.
224 Roe v. Wade, 410 U.S. at 163.
m Id. Inexplicably, Justice Douglas referred to the "compelling" point as "quicken. ing.” Doe v. Bolton, 410 U.S. at 215 (Douglas, J., concurring).
226 Ely, Comment on Roe v. Wade, supra note 109, at 924.
WOMEN AND THE SUPREME COURT
opinion in Doe often seems to imply that a woman's right to privacy means only that she may consult the physician of her choice.23 The Justices' choice of words may have been inadvertent or it may have been calculated to assure physicians that the abortion decision would remain their preserve. If the former, then the Justices are merely insensitive;234 if the latter, then we can be sure that they have not wavered in their traditional view of women.
Second, in what ways do the Supreme Court decisions allow the individual States to control abortion and thus to control a woman's life? Of course, the decisions permit a State to repeal235 its abortion laws altogether, leaving women free to make their own decisions as to abortion and leaving physicians free to decide by what means abortions can be most safely performed. However, we cannot expect the State (which is controlled by men) and physicians (a profession comprised mostly of men) to give up their control over women's reproductive capacities. Thus, we must determine how restrictive the State is now permitted to be in regard to abortion at each of the Court's three stages. Addition252
zu See Doe v. Bolton, 410 U.S. at 219-20. 24 That they are insensitive is beyond question: [T]he language used by the court, by many state laws, and by careless people generally, when they refer to pregnant women, is very meaningful: over and over eveyone of us is called a “mother"; our health is called "maternal” health; and so on. Those of us who have never borne children may or may not think of ourselves as “mothers” when we become pregnant; but when the law calls all pregnant women mothers, we are immediately defined in terms of a relationship
that we explicitly reject when as separate individuals we choose to abort. Cisler & Clapp, Abortion Ruling, supra note 183, at 2.
235 During the debates which culminated in the passage of New York's abortion reform act in 1970, the words “repeal" and "reform" were often used erroneously by the media and others, which led to a great deal of confusion:
(T)o repeal a law means simply to remove it from the books. To repeal abortion laws, then, means to remove from penal codes, medical codes, codes of criminal procedure, and so on, all provisions that make abortion subject to special restrictions, penalties, or procedures beyond those that apply generally to all medical practice. The amended New York law, which has been described over and over as “repeal" ... contains no less than sixteen separate sections making such
special provisions for abortion. Clapp, Abortion Legislation in New York State: What Really Happened and What Can Be Learned From It, ZERO POPULATION GROWTH NAT'L RPTR. (August 1970).
2. After the Rhode Island abortion statute was declared unconstitutional on the authority of the Supreme Court abortion cases, the Rhode Island legislature passed a law identical to the old statute except for a preamble which stated that the fetus is a human being from the moment of conception. R.I. Substitute Bill No. 73-5287, reenacting sections 11-3-1 through 11-3-5 of R.I. GEN. L. This new law was promptly declared unconstitutional, of course.
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ally, as Cisler and Clapp have pointed out,237 since the Court's decisions were based on the then-current status of medical technology, we must consider the possible impact of technological advances.
The types of restrictions the State may impose depend on the stage of pregnancy involved. This in itself is troublesome, because conception can rarely be pinpointed precisely Even if a woman had intercourse only once during her menstrual cycle, conception might take place at any time up to 72 hours after intercourse.238 Further, most women cannot even be that certain as to time of conception. In many cases, bleeding occurs even though conception has taken place, so the usual sign of pregnancy
- amenorrhea-is not present.230 A physician usually estimates length of pregnancy by assuming that conception occurred about two weeks after the first day of the last menstrual period. 240 He then tries to confirm this estimate by means of a physical examination, which is not definitive either.241 Thus, an estimate can be far from accurate, 242 and a physician is likely to make a conservative estimate purposefully in order to avoid any possible legal difficulties.
But even assuming relative accuracy in estimating length of pregnancy, what is the significance to a woman of being diagnosed, for example, as thirteen, rather than eleven, weeks pregnant? In the first trimester of pregnancy (about twelve weeks), a woman is almost-although not totally-free of control by the State because abortion is less hazardous than childbirth at that stage.243 There is some controversy244 as to whether self-induced abortion may be prohibited in the first trimester (there is certainly an implication that a physician at least would have to recommend the abortion) and, if not, whether the State may require the abortion to be performed by a physician as opposed to a trained paramedical person. In the body of the Doe opinion,
237 Cisler & Clapp, Abortion Ruling, supra note 183, at 1.
242 In one case, a pregnancy turned out to be ten weeks more advanced than the physician had thought. See Rameriz v. Superior Court, 5 Civil No. 2167 (Cal. Ct. App., 5th App. Dist. 1973), discussed in DAVIDSON, GINSBURG & Kay, supra note 17, at 407-08.
243 Roe v. Wade, 410 U.S. at 163.
24 Compare Cisler & Clapp, Abortion Ruling, supra note 183, at 1, with DAVIDSON, GINSBURG & Kay, supra note 17, at 405-06.