From: garvin+@cs.cmu.edu (Susan Garvin)
Newsgroups: talk.abortion,alt.politics.clinton,alt.politics.bush
Subject: Re: Roe v. Wade permits the purposeful killing of viable fetuses
Keywords: From: decay@
Date: 29 Aug 92 00:34:25 GMT
Followup-To: talk.abortion
Organization: School of Computer Science, Carnegie Mellon

In article <1992Aug28.195734.19979@ncsu.edu> dsholtsi@csl36h.csl.ncsu.edu (Doug Holtsinger) writes:

[text deleted]

#However in Colautti v. Franklin, the Supreme Court ruled that 
#the state may NOT require the physician to employ the abortion
#technique which is "best for the fetus", even if the technique 
#would not increase the risks to the mother.  

Those of you familiar with Holtsinger's standard method of deleting
the text which disagrees with his premise will not be surprised
to learn that he's done it again.  

#   --------------------
#
#   Colautti v. Franklin, 439 U.S. 400,401 (1979)

If you're trying to look up his cite, be advised that this quote
begins on page 397, not 400.

#   We also conclude that the standard-of-care provision of 5(a) [of the
#   Pennsylvania abortion statute] is impermissibly vague. The standard-
#   of-care provision, when it applies, requires the physician to
#
#    ``exercise that degree of professional skill, care and diligence
#      to preserve the life and health of the fetus which such person
#      would be required to exercise in order to preserve the life and
#      health of any fetus intended to be born and not aborted and the
#      abortion technique employed shall be that which would provide
#      the best opportunity for the fetus to be aborted alive so long
#      as a different technique would not be necessary in order to
#      preserve the life or health of the mother.''

Here, Holtsinger deleted a discussion of the various abortion 
techniques that were used in the second and third trimester at
the time of the decision.  The deleted section reviews testimony
from physicians about the method of choice if saline induction
was not allowed.  (Since saline induction almost always is
fatal to the fetus, it would presumably have been banned under
the statute.)  Quoting from the text, "Preferences ranged from 
no abortion, to prostaglandin infusion, to hysterotomy, to 
oxytocin induction."

The section goes on to discuss the risks associated with
hysterotomy (reactions to anesthesia, problems associated
with any abdominal suregery, and the belief at the time
that all future children would require C-section births),
and prostaglandin infusion (vomiting, nausea, headache,
and diarrhea, and that prostaglanding are contraindicated
for women with a history of glaucoma, asthma, hypertension,
cardiovascular disease, or epilepsy).  It also cites 
testimony from the physician who recommended oxytocin.
"He doubted, however, whether the procedure would be fully
effective in all cases, and he indicated that the procedure
was prolonged and expensive."

Holtsinger's quote, from page 400, follows this discussion:

#   ...
#
#   The statute does not clearly specify, as appellants imply, that the
#   woman's life and health must always prevail over the fetus' life
#   and health when they conflict. The woman's life and health are not
#   mentioned in the first part of the state stated standard of care,
#   which sets forth the general duty to the viable fetus; they are 
#   mentioned only in the second part which deals with the choice of
#   abortion procedures. Moreover, the second part of the standard directs
#   the physician to employ the abortion technique best suited to fetal
#   survival ``so long as a different technique would not be *necessary*
#   in order to preserve the life or health of the mother'' (emphasis
#   supplied). In this context, the word ``necessary'' suggests that
#   a particular technique must be indispensable to the woman's life or
#   health--not merely desirable--before it may be adopted. And the
#   ``life or health of the mother,'' as used in 5(a) [of the Pennsylvania
#   abortion statute], has not been construed by the Courts of the
#   Commonwealth to mean, not does it necessarily imply, that all factors
#   relevant to the welfare of the woman may be taken into account by
#   the physician in making his decision. Cf. United States v. Vuitch,
#   402 U.S., at 71-72; Doe v. Bolton, 410 U.S., at 191."
#
#   --------------------

Holtsinger deleted the conclusion, as well.

	"Consequently, it is uncertain whether the staute permits
the physician to consider his duty to the patient to be paramount
to his duty to the fetus, or whether it requires the physician
to make a 'trade-off' between the woman's health and additional
percentage points of fetal survival.  Serious ethical and
constitutional difficulties, that we do not address, lurk 
behind this ambiguity.  We hold only that where conflicting duties
of this magnitude are involved, the State, at the least, must
proceed with greater precision before it may subject a physician
to possible criminal sanctions."


This paragraph highlights the fact that the statute was overturned
for vagueness, not for some "right to a dead fetus" as Holtsinger
implies.  I can understand his reluctance to quote it, and the
following paragraph, given his false claims.  

	"Appellants' further suggestion that 5(a) requires
only that the physician make a good-faith selection of the
proper abortion procedure finds no support in either the 
language or an authoritative interpretation of the statute.
Certainly, there is nothing to suggest a *mens rea*
requirement with respect to a decision whether a particular
abortion technique is necessary to preserve the life
or health of the woman.  The choice of an appropriate
abortion technique, as the record in this case so amply
demonstrates, is a complex medical judgment about which experts
can - and do - disagree.  The lack of any scienter requirement
exacerbates the uncertainty of the statute.  We conclude
that the standard-of-care provision, like the viability-
determination requirement, is void for vagueness."


Susan
Newsgroups: talk.abortion