From: nyikos@math.scarolina.edu (Peter Nyikos)
Subject: Re: COERCED ABORTION WOULD BE LEGAL IN SOME INCEST CASES
Keywords: incest, woman, children, waived, consent
Organization: USC  Department of Computer Science
Date:  5 Nov 92 22:49:33 GMT

In <1992Oct29.113303.695@hemlock.cray.com> rja@mahogany126.cray.com (Russ Anderson) writes:


>In nyikos@math.scarolina.edu (Peter Nyikos) writes:

>> 	COERCED ABORTION WOULD BE LEGAL IN SOME INCEST CASES
>> 					Peter Nyikos
>> 
>> 	This is a revision of a post I did earlier on the South Carolina
>> laws governing abortion and incest.

>Fortunatly such a law would be unconstitutional.  Roe-v-Wade makes it
>clear that it is up to the woman, in consultation with her doctor, whether
>to have an abortion.   ^^^^^^^^^  ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^

I wish it were that simple.  In the first place, RvW does not say
"her doctor," it says "the attending physician."  [In most ordinary 
contexts, "her doctor" is taken to mean "her family physician," or
"her gynecologist."]  Secondly, you've got it backwards as to who is
in consultation with who:

	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.
	                        --Blackmun writing in 410 US

To what extent is the abortionist required to "consult" with his patient
before he can be immune from charges of sexual battery for forcing an 
abortion on her?  Would a simple "You do want to get this pregnancy over 
with today, don't you?" be adequate, if followed by a Yes answer, even
if the woman changes her mind before the suction curette is inserted?  
or is the very act of signing the
consent form out in the waiting room an implicit "consultation," in the
sense of Roe v. Wade?

	And: what interpretation has to be put on Justice Blackmun's use of
"medical judgment"?  Recall that in the companion Doe v. Bolton case,
"health" was defined very broadly, to include 

"...all factors--physical, emotional, psychological, familial, and the 
woman's age--relevant to the well being of the patient." 

  And in Roe v. Wade itself, we read:
"Maternity...may force upon a woman a distressful life and future...
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 or otherwise, to care for it... All these are
factors that the woman and the responsible physician will consider in 
consultation."

	So if the abortionist learns of some such reason as the above
and proceeds with the abortion, by force if necessary,
is that a legitimate exercise of "medical judgment"?  

	Consider especially the case of an incest victim, from the 
viewpoint of the Doe v. Bolton and Roe v. Wade descriptions.

	What I would dearly like to know is, what requirements must an 
abortionist satisfy to make him immune from any "state interference," 
and what must he satisfy to be immune from prosecution for felony sexual 
battery?

	The future well-being of the forced abortion survivor of whom
I wrote back in July in my "COERCED ABORTION (can you help me polish
this up?)" post may well depend on the answer, and I am still looking
for this answer.
  
Peter Nyikos