From: dsholtsi@csl36h.csl.ncsu.edu (Doug Holtsinger)
Subject: Re: The facts about Roe, Doe, and Colautti 
Reply-To: dsholtsi@csl36h.csl.ncsu.edu (Doug Holtsinger)
Organization: North Carolina State University
Distribution: na
Date: Sat, 15 Aug 1992 17:25:38 GMT

In article <1992Aug12.235727.21336@newstand.syr.edu>  
greeny@top.cis.syr.edu (J. S. Greenfield) writes:

> Recently Doug Holtsinger renewed his claims that Roe v. Wade 
> and Doe v. Bolton, together, establish abortion on demand, 
> through the full term of a pregnancy, due to the discussion 
> of "health" contained within Doe v. Bolton. To support this 
> claim, he cited Colautti v. Franklin as a precedent which 
> supported this interpretation.

First I'd like to present my sources, and then I will address
the points that you raised. My claim is that Roe v. Wade
essentially constitutes abortion on demand throughout the term 
of pregnancy due to the broad definition of "health" given
by the Supreme Court. 

Roe v. Wade and Doe v. Bolton must be read together: 

   ----

  "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)

  ----

There are no other statements in Roe or Doe which suggest
that these decisions should not be read together.  We could 
quibble over whether abortion on demand is authorized in 
Roe, or in Roe and Doe together, and I'll leave it to you
to decide.  Some authors cite both Roe and Doe, and some
simply cite Roe, but it is clear that Roe cannot be read
separately from Doe. 

Even ignoring Doe v. Bolton, however, the language in Roe
concerning the definition of the term "health" is consistent
with the broad definition given in Doe:

   ----

  "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 woman 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.  All these are factors the 
   woman and her responsible physician necessarily will 
   consider in consultation."

   Roe v. Wade, 35 L Ed 2d at 177 (1973)

   ---

  "I agree that, under the Fourteenth Amendment to the Constitution,
   the abortion statutes of Georgia and Texas impermissibly limit
   the performance of abortions necessary to protect the health of
   pregnant women, using the term health in its broadest medical
   context."

   Roe v. Wade, 35 L Ed 2d at 185 (1973) 

   ---

  "The vicissitudes of life produce pregnancies which may be unwanted,
   or which may impair ``health'' in the broad Vuitch sense of the
   term, of which may imperil the life of the mother, or which in 
   the full setting of the case may create such suffering, dislocations,
   misery, or tragedy as to make an early abortion the only civilized
   step to take.  These hardships may be properly embraced in the
   ``health'' factor of the mother as appraised by a person of
   insight.  Or they may be part of a broader medical judgement
   based upon what is ``appropriate'' in a given case, though
   perhaps not ``necessary'' in a strict sense."

   Roe v. Wade, 35 L Ed 2d at 190 (1973)

   ---

The following six authors support my argument that Roe and Doe
give a broad interpretation to the term "health":
 
   ---

  "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."

   Mark Tushnet, "The Supreme Court on Abortion: A Survey",
   Abortion, Medicine, and the Law, Third Edition, 1986, 
   pp. 162

   ---
 
   [...] 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].

      [19] 93 S. Ct. at 732 [...] This holding--that even after
      viability the mother's life or health (which presumably is to
      be defined very broadly indeed, so as to include what many
      might regard as the mother's convenience, see 93 S. Ct. at
      755 (Burger, C.J., concurring); United States v. Vuitch,
      402 U.S. 62 (1971), must, as a matter of constitutional law,
      take precedence over what the Court seems prepared to grant
      at this point has become the fetus's life, see p. 924 infra--
      seems to me at least as controversial as its holding respecting
      the period prior to viability."

   82 Yale Law Journal at 921 (1973), John Hart Ely, "The Wages of
   Crying Wolf: A Comment on Roe v. Wade" 

   ---

  "In Roe and in United States v. Vuitch, 402 U.S. 62 (1971), the
   Supreme Court has held that the term `health'' includes both the
   physical and mental condition of the mother."

   26 Vanderbilt Law Review at 829 (1973), Mark B, Anderson et al,
   "Abortion after Roe and Doe: A Proposed Statute" 

   ---

   "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.

   ---

   _A Lawyer Looks at Abortion_, Lynn D. Wardle and Mary Anne Q. Wood,
   Brigham Young University Press, 1982, pp. 137--138.

  "The Supreme Court has defined health in some contexts to include ``all
   factors--physical, emotional, psychological, familial, and the woman's
   age--relevant to the well-being of the patient[50]''. If the post-
   viability abortion is performed because it is ``necessary'' to avoid
   the burdens that pregnancy, childbirth, and motherhood would place
   on a woman's emotional and psychological health, could not her doctor
   assume that it would be better if a method were chosen and every step
   taken during the abortion itself to insure that the fetus did not
   survive[51]?

   The prospect of a physician or a pregnant woman choosing a method of
   abortion more likely to kill the fetus, or of a physician taking steps
   during the abortion to insure the death of the fetus, for the sake of
   the woman's psychological and emotional comfort, seems to reduce the
   state's interest in potential life to meaningless proportions. Under
   such circumstances, the Supreme Court's invitation to states to
   regulate abortions after viability except when the abortion is necessary
   to preserve the life or health of a pregnant woman becomes a matter of
   the ``life or health'' exception swallowing the ``compelling state
   interest'' rule. Yet, the Court's decision in Colautti that the woman's
   health must prevail over the life and health of the fetus, augmented
   by the Court's broad definition of health, would appear to lend support
   to such a result[52]. A narrower definition of ``health'' in the
   context of choosing abortion methods and of the physician's duty of 
   care to the fetus is obviously necessary to raise the state's interest
   in potential life above the level of mere exhortation and powerless
   concern.

   In summary, the Colautti decision is problematic in its reliance on
   the viability standard and on the physician's judgment in determining
   viability. The Court's refusal to give an obvious and easy constitutional
   interpretation to the Pennsylvania statute is troubling. Finally, the
   invalidation of the standard-of-care provision, in conjunction with
   the Court's broad definition of health, seems to inhibit meaningful
   advancement of a state's compelling interest in potential life."

   ----

This last quote is from a professor of law named Lynn D. Wardle,
who appears to be the same person that you quote in one of your
sources.  It appears that this particular author has held conflicting  
opinions on Roe v. Wade, since the opinion above does not match
the opinion which you quote.  You have provided a single source
from this author which supports your argument, and none of your
other sources support your argument.  I think you need to resolve
the conflicting opinions given by this particular author before
your argument can be given any credence at all.  

There is one Federal court case that is also relevant. 
In Margaret S. v. Edwards, a Federal district court struck
down a Louisiana abortion statute which only allowed post-
viability abortions necessary to prevent "permanent impairment"
to the mother's health.

   ---

  "Roe provides that the State, because of its legitimate interest
   in potential life, may regulate and even forbid abortions after
   a fetus becomes viable, ``except when it is necessary to
   preserve the life or health of the mother.'' Roe, 410 U.S.
   at 164, 93 S.Ct. at 732.  The first sentence of ... [a section
   of the Louisiana abortion statute] while appearing to follow
   the guidelines set forth in Roe, uses the phrase ``to prevent
   permanent impairment to her health.'' This is not the same
   standard articulated in Roe, preservation of maternal
   health. [...] The Court finds that the requirement of
   permanent impairment impermissibly restricts the meaning
   of Roe."

   Margaret S. v. Edwards, 488 F. Supp. at 196 (1980)

   --- 


> After the fetus reaches viability (approx. 
> corresponding to the third trimester), a state's interest in 
> protecting the life and health of the viable fetus is 
> sufficient to warrant restrictions on, and even prohibition 
> of, abortion, except in cases where the life or health of 
> the mother is seriously threatened.

I'm not aware of any interpretation of Roe v. Wade which
requires that the mother's life or health should be "seriously
threatened" before the physician can perform a post-viability
abortion.  Do you have any sources to back up that claim? 
 
> [... Doe v. Bolton ...]
> In its opinion, the SC 
> ruled that the use of the term "health," within the *Georgia 
> statute*, could be interpreted broadly enough to comply with 
> the first trimester rights recognized in Roe.  

That is not correct.  The original Georgia statute gave the 
following exception for abortion:

  "(1) A continuation of the pregnancy would endanger the life of
   the pregnant woman or would seriously and permanently injure
   her health;"

   Doe v. Bolton, 410 US at 202 (1973)

That restriction cannot be read broadly enough to comply with
the "first trimester rights" in Roe, which is abortion on demand.

> [...]
> Doe v. Bolton, specifically, did *not* discuss, suggest or 
> intend that the interpretation of the term "health" in the 
> context of the Georgia statute was to be used as the 
> interpretation of "health" with respect to the exceptions 
> required by Roe for post-viability abortion prohibitions.

Roe and Doe must be read together, so your statement is
not correct. 

  "That opinion [Doe v. Bolton] and this one, of course, 
   are to be read together."

   Roe v. Wade, 35 L Ed 2d at 184 (1973)

> [...]
> In fact, while Mr. Holtsinger has claimed that my earlier 
> post suggested that Roe and Doe were inconsistent, it is his 
> *own* argument that actually suggests this, by suggesting 
> the Roe's extensive framework, distinguishing between the 
> first, second, and third stages of pregnancy, was overruled 
> by the companion Doe decision handed down at the same time.  

No, that's not correct.  The Court upheld a lower court's
ruling on the broad definition of the term "health", which
did not conflict with Roe in any manner. None of the opinion
given in Doe conflicts with Roe. 

> Sources:
> 
> [1] D. Drucker, "Abortion Decisions of the Supreme Court, 
> 1973 through 1989," (1990).

This source contains major errors.  For example:

  "Viability, the stage of pregnancy when the fetus is capable of
   independent survival outside the womb, usually occurs between the
   24th and 27th week of pregnancy.  During this stage, the state
   may choose to limit the abortion procedure to women with medical
   emergencies, where continued pregnancy would place the mother's
   life in jeopardy."

   pg. 12

That opinion is not consistent with the opinion given in Roe,
which permits the physician to perform a post-viability abortion
for the preservation of the woman's "life or health".  

Also, it should be the "28th" week, not the "27th" week.

And you haven't quoted an opinion from this author.  

> [2] A. Flemming et al, "Constitutional Aspects of the Right 
> to Limit Childbearing,"  A Report of the US Commission on 
> Civil Rights (1975).
> 
> [3] S. Goldman, "Constitutional Law: Cases and Essays," 
> (1987).

As you point out, these two sources are used for quoting from
Roe and Doe.  

> [4] S. Krason, "Abortion: Politics, Morality, and the 
> Constitution," (1984).

You haven't quoted from this source.
 
> [5] L. Wardle, "The Abortion Privacy Doctrine: A Compendium 
> and Critique of Federal Court Abortion Cases," (1981).

This source supports your opinion, but as I've pointed out
before, the author gives another opinion in a later source
which conflicts with his claims in this earlier source.

Also, I've given you 6 independent sources which agree with
one another, and they conflict with your single source. 

In summary, you have one source which supports your claims,
but the author gives conflicting claims in another source. 

> [...]
> From the court opinion (delivered by Justice Blackmun) in 
> Roe v. Wade (reprinted in [3]):
> 
> "...If the State is interested in protecting fetal life 
> after viability, it may go so far as to proscribe abortion 
> during that period except when it is necessary to preserve 
> the life or health of the mother...."
> 
> "(c) For the stage subsequent to viability, the 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."

This doesn't support your claims. The main issue is the definition
of the term "health" given here.  

> "...The decision leaves the State free to place increasing 
> restrictions on abortion as the period of pregnancy 
> lengthens, so long as those restrictions are tailored to 
> recognize state interests.  The decision vindicates the 
> right of the physician to administer medical treatment 
> according to his professional judgment up to the points 
> where important state interests provide compelling 
> justifications for intervention.  Up to those points, the 
> abortion decision in all its aspects is inherently, and 
> primarily, a medical decision, and basic responsibility for 
> it must rest with the physician.  If an individual 
> practitioner abuses the privilege of exercising proper 
> medical judgment, the usual remedies, judicial and intra-
> professional, are available...."

Again, this does not support your claims. It does not state
that the broad definition of the term "health" should not
influence the physician's "proper medical judgement". 
 
> (The latter note was in reference to the claims, even at the 
> time of Roe, that there were widespread examples of 
> abortionist physicians who served no interest other than 
> their own financial interest to perform albums.)

That's irrelevant. 
 
> [...]
> The companion case of Roe, Doe v. Bolton, supported the 
> decision of Roe 

Are you now claiming that Roe and Doe must be read together?
Thank you for agreeing with me. 

> [.. Roe v. Wade ...]
> "I do not read the Court's holdings today as having the 
> sweeping consequences attributed to them by the dissenting 
> Justices; the dissenting views discount the reality that the 
> vast majority of physicians observe the standards of their 
> profession, and act only on a basis of carefully deliberated 
> medical judgments relating to life and health.  Plainly the 
> Court today rejects any claim that the Constitution requires 
> abortion on demand."

This indicates that a woman's right to an abortion is largely
dependent on the availability of a physician who is willing
to perform the abortion, which would be the same situation with 
abortion on demand.  Justice Burger rejects the claim that Roe 
is abortion on demand because a woman cannot demand an abortion 
from a physician who is unwilling to perform the abortion.
Note that this observation is consistent with two of my sources 
(Mark Tushnet, and The Alan Guttmacher Institute). 

> and by Justice Blackmun's court opinion in Colautti v. 
> Franklin (paraphrased excerpt taken from [1]):
> 
> "It was during the litigation of Doe v. Bolton that the 
> Court stressed the importance of allowing the physician 
> absolute control in exercising his best medical judgment, 
> and the Court emphasized the fact that although women do 
> have a right to have an abortion, the right is not absolute 
> and is not extended to women who want an abortion upon 
> demand."

Again, this indicates that the woman's right to an abortion is
dependent on the availability of a physician who is willing to
perform the abortion. That is not fundamentally different from
abortion on demand.  

> [...]
> The distinction between the discussion of "health" in the 
> context of the Georgia statute of Doe v. Bolton and the Roe 
> requirement for exceptions "for the preservation of the life 
> or health of the mother" during the post-viability stage of 
> pregnancy is clarified by the analysis of [5].

> [.. massive deletions ..]

> "The analytical soundness of reading Roe and Doe as 
> requiring a post-viability 'life or health' exception with 
> an expansive interpretation of 'health' is highly 
> questionable.  

This opinion clearly conflicts with the author's opinion
given in a later source, from which I have quoted above.
 
> [... rest of author's opinion ..]


I've given you 6 independent sources which support my argument.
The only support for your argument comes from an author who has
written conflicting opinions on Roe and Doe.  This same author
has written an opinion which supports my argument.  You need
to resolve this conflict before your argument can be given 
any support whatsoever.  


> J. S. Greenfield 


Doug Holtsinger

Xref: sparky talk.abortion:31469 alt.birthright:386