From: dsh@eceyv.ncsu.edu (Doug Holtsinger)
Subject: Re: t.a. FAQ (part 3 of 3)
Organization: North Carolina State University
Distribution: na
Date: Thu, 31 Dec 1992 00:47:50 GMT

In article <1992Dec30.233411.21897@crd.ge.com> 
keegan@crd.ge.com writes:

>                             DOE v. BOLTON
>                    (Summary written by Don Porter)
>
> The citation is either 410 US 179 or 93 S. Ct. 739 for those 
> who want to look it up for themselves. 
>
> Most of the controversy seems to center around this paragraph:
>
>   "We agree with the District Court, 319 F. Supp., at 1058,
> that the medical judgment may be exercised in the 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
> judgment.  And it is room that operates for the benefit, not
> the disadvantage, of the pregnant woman."
>
>  [...  deletions ...]

> SOME IMPRESSIONS:
>
> 2) The combination of Georgia's claimed state interest -- protecting
> the health and welfare of women -- and the focus in the controversial
> paragraph on the benefit that physician freedom provides toward that
> interest makes me wonder how applicable this case truly is to the
> third trimester.  

Roe v. Wade is essentially unrestricted abortion-on-demand throughout
the term of pregnancy.  In Roe v. Wade, the Court ruled that the states 
may not prohibit third trimester abortions when the abortion is necessary 
to preserve the woman's ``health'' or life, but the Court gave a very broad 
definition to the term ``health'', including emotional and psychological 
health (see the documentation below).  Additional documentation can
be provided upon request.


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

  "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."

   [4] 410 U.S. at 163-164
   [5] 410 U.S. 179 (1973)

   --------------------

   Excerpt from the oral arguments presented by Kathryn Kolbert,
   counsel for the ACLU, in Planned Parenthood v. Casey.  
   Source: The New York Times, April 23, 1992  

     "Ms. Kolbert: Our position is that Roe, in establishing a trimester 
   framework, in establishing strict scrutiny, and in also establishing 
   that the rights of women and the health interests of women always take
   precedent over the state's interest in potential life. Those hallmarks
   of Roe are central to this case, and are central to continuing 
   recognition of the right as fundamental.  Should the Court abandon
   that --

     Justice O'Connor: But did the Court hold that, even after the
   viability of the fetus in Roe?

     Ms. Kolbert: What the Court --

     Justice O'Connor: Do you think that was a correct characterization
   of Roe's holding that you just gave, that the woman's interest always
   takes precedence?  Is that true under Roe, in the latter stages of
   pregnancy?

     Ms. Kolbert: Your Honor, under Roe, after the point of viability,
   that is the point when the fetus is capable of survival, the state
   is free to prohibit abortion but only so long as it is necessary,
   only so long as the woman's health interests and life interests are
   not at stake.

     That is, potential fetal life is a recognized value, is a recognized
   state interest after the point of viability; but when in conflict,
   when the woman's health interest is in conflict with those state
   interests and potential life, those women's interest, the women's
   interest in health take precedent."

   --------------------

   "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."



Doug Holtsinger


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