Newsgroups: talk.abortion
Subject: Re: t.a. FAQ (part 3 of 3)
From: sgast+@pitt.edu (Susan Garvin)
Date: 1 Jan 93 00:39:47 GMT
Distribution: na
Organization: University of Pittsburgh

In article <1992Dec31.225226.14301@ncsu.edu> dsholtsi@csl36h.csl.ncsu.edu (Doug Holtsinger) writes:

[text deleted in which Rev. Holtsinger altered my words to help
him pretend that he hasn't deleted a relevant portion from the
quote]

#No, the decision does not contradict Mark Tushnet's analysis
#of Roe v. Wade.

You're lying, DODie.


                                ROE v. WADE
            410 U.S. 113; 93 S. Ct. 705; 35 L. Ed. 2d 147 (1973)
 
     Mr. Justice Blackmun delivered the opinion of the Court, saying in
     part:
[...] 
          On the basis of elements such as these,  appellants and  some
     amici argue that the woman's right is absolute and that she is en-
     titled  to terminate her pregnancy at whatever time,  in  whatever
     way,  and for whatever reason she alone chooses.  With this we  do
     not agree.  Appellants'  arguments that Texas either has no  valid
     interest at all in regulating the abortion decision,  or no inter-
     est strong enough to support any limitation upon the woman's  sole
     determination,  is unpersuasive. The Court's decisions recognizing
     a right of privacy also acknowledge that some state regulation  in
     areas  protected by that right is appropriate.  As noted above,  a
     State  may  properly assert important  interests  in  safeguarding
     health, in maintaining medical standards, and in protecting poten-
     tial life.  At some point in pregnancy, these respective interests
     become  sufficiently compelling to sustain regulation of the  fac-
     tors  that  govern the abortion decision.  The privacy  right  in-
     volved,  therefore, cannot be said to be absolute. In fact,  it is
     not clear to us that the claim asserted by some amici that one has
     unlimited right to do with one's body as one pleases bears a close
     relationship to the right of privacy previously articulated in the
     Court's decisions. The Court has refused to recognize an unlimited
     right of this kind in the past.  Jacobson v.  Massachusetts (1905)
     (vaccination); Buck v. Bell (1927) (sterilization).
          We therefore conclude that the right of personal privacy  in-
     cludes the  abortion  decision,  but that this right  is  not  un-
     qualified  and  must  be considered  against {important} state  
     interests in regulation.
          Where  certain "fundamental rights" are involved,  the  Court
     has  held that regulation limiting these rights may  be  justified
     only by a "compelling state interest," Kramer v. Union Free School
     District (1969),  Shapiro v. Thompson (1969),...and that  legisla-
     tive  enactments  must be narrowly drawn to express only  the  le-
     gitimate  state  interests  at  stake.  Griswold  v.   Connecticut
     (1965)....
[...]
                                     X.
 
     In view of all this, we do not agree that,  by adopting one theory
     of life,  Texas may override the rights of the pregnant woman that
     are at stake.  We repeat, however, that the State does have an im-
     portant  and legitimate interest in preserving and protecting  the
     health  of the pregnant woman,  whether she be a resident  of  the
     State  or a nonresident who seeks medical consultation and  treat-
     ment there, and that it has still ANOTHER important and legitimate
     interest in protecting the potentiality of human life.  These  in-
     terests are separate and distinct. Each grows in substantiality as
     the woman approaches term and,  at a point during pregnancy,  each
     becomes "compelling."
          With respect to the State's important and legitimate interest
     in the health of the mother, the compelling point, in light of the
     present  medical  knowledge,  is at approximately the end  of  the
     first trimester. This is so because of the now established medical
     fact,  referred to above...that until the end of the first trimes-
     ter mortality in abortion is less than mortality in normal  child-
     birth.  It follows that,  from and after this point,  a State  may
     regulate the abortion procedure to the extent that the  regulation
     reasonably relates to the preservation and protection of  maternal
     health.  Examples of permissible state regulation in this area are
     requirements as to the qualifications of the person who is to per-
     form the abortion;  as to the licensure of that person;  as to the
     facility  in  which  the procedure is to be  performed,  that  is,
     whether  it  must be a hospital or may be a clinic or  some  other
     place of less-than-hospital status; as to the licensing of the fa-
     cility; and the like.
          This means,  on the other hand, that, for the period of preg-
     nancy prior to this "compelling"  point,  the attending physician,
     in  consultation with his patient, is free to  determine,  without
     regulation  by  the  State,  that  in  his  medical  judgment  the
     patient's  pregnancy  should be terminated.  If that  decision  is
     reached,  the judgment may be effectuated by an abortion  free  of
     interference by the State.
          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. State regulation protective
     of fetal life after viability thus has both logical and biological
     justifications.  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.


[Many thanks to Russ Anderson]

Susan


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