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From: ejones@umassmed.ummed.edu
Newsgroups: talk.abortion,news.answers
Subject: talk.abortion FAQ 3/3 [DECISIONS]
Date: 12 Jun 92 16:31:46 GMT
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Last-modified: June 13, 1992

*(Note: Diff markers (*) have been added to make scanning this document
*much easier for those who have seen it before.)

In an attempt to make a fair FAQ for this group, I've come up with the
following document.  I hope you'll find the FAQ fair and impartial,
without any references to actions on one side that don't include a
similar action on the other side.  This FAQ is updated every month,
and I continue to read any and all comments sent to me.  Make your
comments to me as specific as possible, even to the point of writing
whole paragraphs tha you would like to see in there.  I would like to
make this FAQ a true group FAQ, with contributions from as many people
as possible.

This is the third of the three documents, which contains texts of
relevant Supreme Court decisions on abortion.  The first document is
the FAQ itself.  The second document is of relevant texts regarding
abortion.  All three documents will always be posted at the same time,
on the first and the fifteenth of each month.

Thank you to everyone who helped create this FAQ.  I sincerely
appreciate the time and effort that you all put in on it.

Erik Jones
ejones@umassmed.ummed.edu

*************************************************************************
                     FREQUENTLY ASKED QUESTIONS
                          ON TALK.ABORTION

                     DOCUMENT THREE (OF THREE):
                      SUPREME COURT DECISIONS  

TABLE OF CONTENTS
-----------------

1 - The 1973 Roe v. Wade Decision
    Edited opinion of Justice Blackmun.

2 - The Doe v. Bolton Decision
    Summarized by Don Porter

3 - The 1991 Rust v. Sullivan Decision AKA The Gag Rule
    Synopsis from Project Hermes

4 - The 1990 Ohio v. Akron Center for Reproductive Health
    Syllabus from the Reporter of Decisions

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

                   THE 1973 ROE V. WADE DECISION

Please note that the Roe decision here is not complete.  I have
included what was sent to me, and I feel that the disadvantages of a
larger document outweigh the advantages of including the full text of
the Roe v. Wade decision.  Many thanks to Don Porter, who forwarded
the text as originally posted by Patt Haring.

          410 U.S. 113; 93 S. Ct. 705; 35 L. Ed. 2d 147 (1973)
 
     Justice Blackmun delivered the opinion of the Court, saying:
 
                                     V.
 
     The  principal thrust of appellant's attack on the Texas  statutes
     is  that they improperly invade a right,  said to be possessed  by
     the pregnant woman,  to choose to terminate her pregnancy.  Appel-
     lant  would discover this right in the concept of  personal  "lib-
     erty"  embodied in the Fourteenth Amendment's Due Process  Clause;
     or in personal,  marital,  familial, and sexual privacy said to be
     protected by the Bill of Rights or its prenumbras, see Griswold v.
     Connecticut (1965); Eisenstadt v. Baird (1972); (White,  J.,  con-
     curring);  or  among those rights reserved to the  people  by  the
     Ninth Amendment,  Griswold v. Connecticut (Goldberg,  J.,  concur-
     ring).  Before addressing this claim, we feel it desirable briefly
     to survey,  in several aspects, the history of abortion,  for such
     insight  as that history may afford us,  and then to  examine  the
     state purposes and interests behind the criminal abortion laws.
 
                                    VI.
 
     It  perhaps  is  not generally appreciated  that  the  restrictive
     criminal abortion laws in effect in a majority of States today are
     of  relatively recent vintage. Those laws,  generally  proscribing
     abortion  or its attempt at any time during pregnancy except  when
     necessary  to preserve the pregnant woman's life,  are not of  an-
     cient  or even of common law origin.  Instead,  they  derive  from
     statutory changes effected,  for the most part, in the latter half
     of the 19th century....

     It is... apparent that at common law,  at the time of the adoption 
     of out Constitution,  and throughout the major portion of the 19th 
     century,  abortion was viewed with  less  disfavor than under most 
     American statutes currently in effect.  Phrasing it another way, a 
     woman enjoyed a substantially broader right  to  terminate a preg-
     nancy that she does in most States today.   At least  with respect 
     to the early stage of pregnancy, and very possibly  without such a 
     limitation,  the opportunity to  make  this choice  was present in 
     this country well into the 19th century.  Even later, the law con-
     tinued for sometime to treat  less punitively an abortion procured 
     in early pregnancy...
 
                                    VII.
 
     Three  reasons have been advanced to explain historically the  en-
     actment of criminal abortion laws in the 19th century and to  jus-
     tify their continued existence.
          It  has  been argued occasionally that these  laws  were  the
     product of a Victorian social concern to discourage illicit sexual
     conduct.  Texas,  however,  does not advance this justification in
     the present case,  and it appears that no court or commentator has
     taken  the argument seriously.  The appellants and amici  contend,
     moreover,  that this is not a proper state purpose at all and sug-
     gest that,  if it were,  the Texas statutes are overbroad in  pro-
     tecting it since the law fails to distinguish between married  and
     unwed mothers.
 
          A second reason is concerned with abortion as a medical  pro-
     cedure.  When most criminal abortion laws were first enacted,  the
     procedure was a hazardous one for the woman. This was particularly
     true prior to the development of antisepsis Antiseptic techniques,
     of course, were based on discoveries by Lister, Pasteur,  and oth-
     ers first announced in 1867,  but were not generally accepted  and
     employed until about the turn of the century.  Abortion  mortality
     was high. Even after 1900, and perhaps until as late as the devel-
     opment  of antibiotics in the 1940's,  standard modern  techniques
     such as dilation and curettage were not nearly so safe as they are
     today.  Thus it has been argued that a State's real concern in en-
     acting a criminal abortion law was to protect the pregnant  woman,
     that  is,  to  restrain her from submitting to  a  procedure  that
     placed her life in serious jeopardy.
          Modern medical techniques have altered this situation. Appel-
     lants  and  various amici refer to medical  data  indicating  that
     abortion  in  early pregnancy,  that is, prior to the end  of  the
     first  trimester,  although not without risk,  is  now  relatively
     safe. Mortality rates for women undergoing early abortions,  where
     the procedure is legal,  appear to be as low as or lower than  the
     rates  for normal childbirth.  Consequently,  any interest of  the
     State in protecting the woman from an inherently hazardous  proce-
     dure,  except when it would be equally dangerous for her to forego
     it,  has largely disappeared. Of course, important state interests
     in the area of health and medical standards do remain.  The  State
     has a legitimate interest in seeing to it that abortion,  like any
     other medical procedure, is performed under circumstances that in-
     sure maximum safety for the patient.  This interest obviously  ex-
     tends at least to the performing physician and his staff,  to  the
     facilities involved,  to the availability of aftercare, and to ad-
     equate  provision  for any complication or  emergency  that  might
     arise. The prevalence of high mortality rates at illegal "abortion
     mills"  strengthens, rather than weaken's, the State's interest in
     regulating  the  conditions under which abortions  are  performed.
     Moreover, the risk to the woman increases as her pregnancy contin-
     ues.  Thus the State retains a definite interest in protecting the
     woman's  own health and safety when an abortion is proposed  at  a
     late stage of pregnancy.
          The third reason is the State's interest -- some phrase it in
     terms of duty -- in protecting prenatal life. Some of the argument
     for  this justification rests on the theory that a new human  life
     is present from the moment of conception. The State's interest and
     general obligation to protect life then extends, it is argued,  to
     prenatal life.  Only when the life of the pregnant mother  herself
     is  at stake,  balanced against the life she carries  within  her,
     should the interest of the embryo or fetus not prevail. Logically,
     of course, a legitimate State interest in this area need not stand
     or fall on acceptance of the belief that life begins at conception
     or  at  some  other point prior to live birth.  In  assessing  the
     State's interest, recognition may be given to the less rigid claim
     that as long as a least POTENTIAL life is involved,  the State may
     assert  interests  beyond  the protection of  the  pregnant  woman
     alone.

     Parties challenging  state abortion laws  have sharply disputed in
     some courts the contention that a purpose of these laws,  when en-
     acted,  was to protect prenatal life.   Pointing to the absence of 
     legislative  history to support  the  contention,  they claim that
     most state laws were designed solely to protect the woman. Because 
     medical advances have lessened this concern, at least with respect
     to abortion in early pregnancy,  they argue  that  with respect to 
     such abortions the laws can no longer  be justified  by  any state 
     interest.  There is some scholarly support  for this  view of ori-
     ginal purpose.   The few  state  courts  called  upon to interpret 
     their laws in the late 19th and  early 20th centuries did focus on 
     the State's interest in protecting  the woman's health rather than 
     in preserving the embryo and fetus.

          It is with these interests,  and the weight to be attached to
     them, that this case is concerned.
 
                                   VIII.
 
     The Constitution does not explicitly mention any right of privacy.
     In  a  line of decisions,  however, going back perhaps as  far  as
     Union Pacific R.  Co. v. Botsford (1891), the Court has recognized
     that a right of personal privacy, or a guarantee of certain  areas
     or zones of privacy, does exist under the Constitution. In varying
     contexts  the  Court or individual Justices have indeed  found  at
     least the roots of that right in the First Amendment,  Stanley  v.
     Georgia (1969); in the Fourth and Fifth Amendments, Terry v.  Ohio
     (1968),  Katz v.  United States (1967)...; in the penumbras of the
     Bill  of  Rights,  Griswold v. Connecticut (1965);  in  the  Ninth
     Amendment;  or in the concept of liberty guaranteed by  the  first
     section of the Fourteenth Amendment, see Meyer v. Nebraska (1923).
     These  decisions make it clear that only personal rights that  can
     be  deemed "fundamental"  or "implicit in the concept  of  ordered
     liberty,"  Palko v. Connecticut (1937), are included in this guar-
     antee of personal privacy.  They also make it clear that the right
     has some extension to activities relating to marriage,  Loving  v.
     Virginia (1967), procreation, Skinner v. Oklahoma (1942),  contra-
     ception,  Eisenstadt v.  Baird (1972), family relationships, child 
     rearing and education...
          This  right of privacy,  whether it be founded in  the  Four-
     teenth  Amendment's concept of personal liberty  and  restrictions
     upon state action, as we feel it is, or, as the District Court de-
     termined,  in the Ninth Amendment's reservation of the  rights  to
     the  people,  is  broad enough to  encompass  a  woman's  decision
     whether or not to terminate her pregnancy.  The detriment that the
     State would impose upon the pregnant woman by denying this  choice
     altogether is apparent.  Specific and direct harm medically  diag-
     nosable even in early pregnancy may be involved. Maternity, or ad-
     ditional  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 dis-
     tress, for all concerned, associated with the unwanted child,  and
     there is the problem of bringing a child into a family already un-
     able,  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.
 
          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)...

          We note that those federal and state courts that have recent-
     ly considered  abortion  law challenges have reached the same con-
     clusion...
          Although the results are divided, most of  these  courts have
     agreed that the right of privacy,  however based,  is broad enough
     to cover the abortion decision;  that the right,  nonetheless,  is 
     not absolute and is subject to some limitations;  and that at some
     point  the state's  interests as to protection of health,  medical
     standards, and parental life, become dominant.  We agree with this
     approach.

                                    IX.
 
     The District Court held that the appellee failed to meet his  bur-
     den  of demonstrating that the Texas statute's  infringement  upon
     Roe's   rights  was  necessary  to  support  a  compelling   state
     interest....Appellee argues that the State's determination to rec-
     ognize and protect prenatal life from and after conception consti-
     tutes a compelling state interest. As noted above, we do not agree
     fully with either formulation.
 
          A.  The appellee and certain amici argue that the fetus is  a
     "person"  within the language and meaning of the Fourteenth Amend-
     ment.  In support of this they outline at length and in detail the
     well-known facts of fetal development. If this suggestion of  per-
     sonhood  is established,  the appellant's case,  of  course,  col-
     lapses,  for  the fetus'  right to life is  then  guaranteed  spe-
     cifically  by  the Amendment.  The appellant conceded as  much  on
     reargument. On the other hand, the appellee conceded on reargument
     that  no case could be cited that holds that a fetus is  a  person
     within the meaning of the Fourteenth Amendment.
 
          The Constitution does not define "person"  in so many  words.
     Section 1 of the Fourteenth Amendment contains three references to
     "person."  The first,  in defining "citizens,"  speaks of "persons
     born or naturalized in the United States."  The word also  appears
     both in the Due Process Clause and in the Equal Protection Clause.
     "Person"  is  used in other places in the  Constitution....But  in
     nearly  all these instances,  the use of the word is such that  it
     has application only postnatally. None indicates,  with any assur-
     ance, that it has any possible prenatal application. 
 
          All this,  together with our observation, that throughout the
     major portion of the 19th century prevailing legal abortion  prac-
     tices  were far freer than they are today,  persuades us that  the
     word "person,"  as used in the Fourteenth Amendment,  does not in-
     clude the unborn.... Indeed, our decision in United States v.
     Vuitch (1971) inferentially is to the same effect, for we there
     would not have indulged in statutory interpretation favorable to
     abortion in specified circumstances if the necessary consequence
     was the termination of life entitled to Fourteenth Amendment
     protection.

          B. The pregnant woman cannot be isolated in her privacy.  She
     carries an embryo and,  later, a fetus, if one accepts the medical
     definitions  of  the developing young in  the  human  uterus...The
     situation therefore is inherently different from marital intimacy,
     or bedroom possession of obscene material, or marriage, or procre-
     ation,  or education,  with which Eisenstadt,  Griswold,  Stanley,
     Loving, Skinner, Pierce, and Meyer were respectively concerned. As
     we  have intimated above,  it is reasonable and appropriate for  a
     State to decide that at some point in time another interest,  that
     of  health of the mother or that of potential human life,  becomes
     significantly involved.  The woman's privacy is no longer sole and
     any right of privacy she possesses must be measured accordingly.
 
          Texas urges that,  apart from the Fourteenth Amendment,  life
     begins  at  conception and is present  throughout  pregnancy,  and
     that, therefore, the State has a compelling interest in protecting
     that life from and after conception. We need not resolve the  dif-
     ficult question of when life begins. When those trained in the re-
     spective disciplines of medicine, philosophy, and theology are un-
     able to arrive at any consensus, the judiciary,  at this point  in
     the  development  of  man's knowledge,  is not in  a  position  to
     speculate as to the answer.
          It  should be sufficient to note briefly the wide  divergence
     of thinking on this most sensitive and difficult question.  There
     has always been strong support for the view that life does not 
     begin until live birth.  This was the belief of the Stoics.  It
     appears to be the predominant, though not unanimous, attitude of
     the Jewish faith.  It may be taken to represent also the position
     of a large segment of the Protestant community, insofar as that 
     can be ascertained; organized groups that have taken a formal
     position on the abortion issue have generally regarded abortion as
     a matter for the conscience of the individual and her family.  As
     we have noted, the common law found greater significance in 
     quickening.  Physicians and their scientific colleagues have 
     regarded that event with less interest and have tended to focus
     either upon conception or upon live birth or upon the interim
     point at which the fetus becomes "viable," that is, potentially
     able to live outside the mother's womb, albeit with artifical aid.
     Viability is usually placed at about seven months (28 weeks) but 
     may occur earlier, even at 24 weeks...
          In areas other than criminal abortion the law has been 
     reluctant to endorse any theory that life, as we recognize it,
     begins before live birth or to accord legal rights to the unborn
     except in narrowly defined situations and except when the rights
     are contingent upon live birth. ...  In short, the unborn have 
     never been recognized in the law as persons in the whole sense.
 
                                     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.
          Measured  against these standards,  the Texas Penal Code,  in
     restricting  legal  abortions to those "procured or  attempted  by
     medical advice for the purpose of saving the life of the  mother,"
     sweeps too broadly. The statute makes no distinction between abor-
     tions performed early in pregnancy and those performed later,  and
     it limits to a single reason, "saving" the mother's life,  the le-
     gal justification for the procedure. The statute, therefore,  can-
     not survive the constitutional attack made upon it here....

          To summarize and repeat:
          1. A state criminal abortion statute of the current Texas
     type, that excerpts from criminality only a *life saving* 
     procedure on behalf of the mother, without regard to pregnancy
     stage and without recognition of the other interests involved, is
     violative of the Due Process Clause of the Fourteenth Amendment.

          (a) For the stage prior to approximately the end of the 
     first trimester, the abortion decision and its effectuation must
     be left to the medical judgment of the pregnant woman's attending
     physician.
          (b) For the stage subsequent to approximately the end of
     the first trimester, the State, in promoting its interest in the
     health of the mother, may, if it chooses, regulate the abortion
     procedure in ways that are reasonably related to maternal health.
          (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.

          2. The State may define the term "physician," as it has
     been employed [here], to mean only a physician currently licensed
     by the State, and may proscribe any abortion by a person who is
     not a physician as so defined.

          The decision leaves the State free to place increasing
     restrictions on abortion as the period of pregnancy lengthens, so 
     long as those restrictions on abortion are tailored to the
     recognized 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 intraprofessional,
     are available.

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

The justices in the Roe vs Wade decision:

Voting for Roe (7):

Name			Term	President
----			----	---------
William O. Douglass	1939-75	Roosevelt
William J. Brennan	1956-90	Eisenhower
Potter Stewart		1958-81	Eisenhower
Thurgood Marshal	1967-91	Johnson
Warren E. Burger	1969-86	Nixon
Harry A. Blackmun	1970-	Nixon
Lewis F. Powell Jr	1972-87	Nixon

Voting against Roe (2):

Byron R. White		1962-	Kennedy
William H. Renquist	1972-	Nixon

Other Notes:
Burger was the Chief Justice.
Blackmun wrote the majority decision.

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

                             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."

THE LAW IN QUESTION:
  
A section of the Georgia Criminal Code (AARGH, I forgot to write down
the section number -- sorry.)  adopted in 1968 proscribed abortion
except in cases where a licensed physician acting on his best medical
judgment found that continuing pregnancy would endanger the woman's
life, would injure her health, would likely result in the birth of a
child with a grave, irremediable defect, or the pregnancy was a result
of forcible or statutory rape.  The law required that the woman in
question be a Georgia resident.  Further, it contained three specific
procedural requirements:

1) The abortion must be performed in a state-accredited hospital.

2) The abortion must be approved by the hospital's abortion committee.

3) The attending physician's medical judgment must be confirmed
   by independent examinations of the patient by at least two
   other physicians.

Prior to 1968, Georgia law prohibited all abortions except those
necessary to save the life of the mother.

When defending the statute in District Court, Georgia officials
claimed that the State interest in the new law was the same as in the
old -- the health and welfare of women who might seek an abortion.

THE WOMAN WHO BROUGHT THE CASE TO COURT:

The appellant "Mary Doe" was a 22 year-old Georgia resident, married,
with three living children.  Two of these children were in foster
care; the youngest had been placed for adoption.  Her husband had
abandoned her, leaving her to live with her indigent parents and their
eight children.  She and her husband had recently reconciled.  He was
sporadically employed in construction.  She had been a patient in the
State mental hospital.  She had been informed that an abortion would
represent less risk to her health than carrying the pregnancy to term,
and she was unable to care for a child.

Doe applied for abortion approval on March 25, 1970.  Her application
was denied on April 10, 1970, on the grounds that she did not meet the
requirements of the statute.  At the time of this denial, Doe was
eight weeks pregnant.  On April 16, 1970, she sought relief in the
courts.

DOE'S ARGUMENTS:

Doe argued that the requirement that a physician use "his best medical
judgment" was unconstitutionally vague since it gave the physician no
clear indication of what acts would be violations of the statute.  Doe
further argued that her own privacy rights were being violated by the
statute, citing Griswold v. Connecticut as precedent.

The District Court ruled in Doe's favor and struck down parts of the
law (I didn't write down the details of which parts.)  Doe wanted
further relief, and appealed to the Supreme Court.

WHAT THE SC DECISION RULED:

The "best medical judgment...would injure health" language is
acceptable.  It is not unconstitutionally vague.  Physicians are
professionals trained to make medical judgments concerning the health
of their patients.  The language means exactly what it says, and
physicians are specially trained to know what "would injure health"
and what constitutes sound medical judgment.  (It is here in the
decision that the "controversial" paragraph appears. The opinion in
the controversial paragraph was also in the District Court decision.
The Supreme Court was just agreeing here with the decision of the
lower court.)

The three specific procedural requirements are unconstitutional under
the Fourteenth Amendment's Due Process Clause, read in the light of
Roe v.  Wade's precedent that the right to an abortion is fundamental,
requiring a compelling state interest to justify regulation, and
regulations narrowly tailored to serve only the compelling state
interests.  The procedural requirements did not pass these tests.

The residency requirement is an unconstitutional violation of the
Privileges and Immunities clause (either Article IV, Section 2, or
14th Amendment, Section 1 -- I'm not sure which.)

SOME IMPRESSIONS:

1) The controversial paragraph seems to me to be more a statement
about physicians' rights and privileges than about women's rights.

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.  The Roe v Wade decision found that the State may
claim a compelling interest in the potential life of the fetus in the
third trimester of pregnancy.  Thus, in third trimester situations,
Georgia could have claimed a second interest in the fetus in addition
to their stated interest in the health of the mother.  With this
additional compelling state interest factored in, the broad
interpretation of health in DvB might not be an appropriate balancing
of all the interests and rights involved.  On these grounds, I think
DvB probably does not serve as a precedent for third trimester
situations, particularly since it addressed a first trimester
situation.  Thus, I think that the claims of pro-life literature,
though grounded in fact, may be an overextension of a precedent to
cases where it may not apply.


                      1991 RUST v. SULLIVAN DECISION

No. 89-1391.  Argued October 30, 1990 -- Decided May 23, 1991 {1} 

SYNOPSIS:

Section 1008 of the Public Health Service Act specifies that none of
the federal funds appropriated under the Act's Title X for
family-planning services "shall be used in programs where abortion is
a method of family planning."  In 1988, respondent Secretary of Health
and Human Services issued new regulations that, inter alia, prohibit
Title X projects from engaging in counseling concerning, referrals
for, and activities advocating abortion as a method of family
planning, and require such projects to maintain an objective integrity
and independence from the prohibited abortion activities by the use of
separate facilities, personnel, and accounting records.  Before the
regulations could be applied, petitioners -- Title X grantees and
doctors who supervise Title X funds -- filed suits, which were
consolidated, challenging the regulations' facial validity and seeking
declaratory and injunctive relief to prevent their implementation.  In
affirming the District Court's grant of summary judgment to the
Secretary, the Court of Appeals held that the regulations were a
permissible construction of the statute and consistent with the First
and Fifth Amendments.

Held:

    1. The regulations are a permissible construction of Title X.  Pp.
615.

    (a) Because MDRV 1008 is ambiguous in that it does not speak
directly to the issues of abortion counseling, referral, and advocacy,
or to "program integrity," the Secretary's construction must be
accorded substantial deference as the interpretation of the agency
charged with administering the statute, and may not be disturbed as an
abuse of discretion if it reflects a plausible construction of the
statute's plain language and does not otherwise conflict with
Congress' expressed intent.  Chevron U. S. A. Inc. v. Natural
Resources Defense Council, Inc., 467 U. S.  837, 842-844.  Pp. 7-8.

    (b) Title X's broad language plainly allows the abortion
counseling, referral, and advocacy regulations.  Since the Title
neither defines MDRV 1008's "method of family planning" phrase nor
enumerates what types of medical and counseling services are entitled
to funding, it cannot be said that the Secretary's construction of the
MDRV 1008 prohibition to require a ban on such activities within Title
X projects is impermissible.  Moreover, since the legislative history
is ambiguous as to Congress' intent on these issues, this Court will
defer to the Secretary's expertise.  Petitioners' contention, that the
regulations are entitled to little or no deference because they
reverse the Secretary's longstanding policy permitting nondirective
counseling and referral for abortion, is rejected.  Because an agency
must be given ample latitude to adapt its rules to changing
circumstances, a revised interpretation may deserve deference.  The
Secretary's change of interpretation is amply supported by a "reasoned
analysis" indicating that the new regulations are more in keeping with
the statute's original intent, are justified by client experience
under the prior policy, and accord with a shift in attitude against
the "elimination of unborn children by abortion."  Pp. 8-11.

    (c) The regulations' "program integrity" requirements are not
inconsistent with Title X's plain language.  The Secretary's view,
that the requirements are necessary to ensure that Title X grantees
apply federal funds only to authorized purposes and avoid creating the
appearance of governmental support for abortion-related activities, is
not unreasonable in light of MDRV 1008's express prohibitory language
and is entitled to deference.  Petitioners' contention is unpersuasive
that the requirements frustrate Congress' intent, clearly expressed in
the Act and the legislative history, that Title X programs be an
integral part of a broader, comprehensive, health-care system that
envisions the efficient use of nonTitle X funds.  The statements
relied on are highly generalized and do not directly address the scope
of MDRV 1008 and, therefore, cannot form the basis for enjoining the
regulations.  Indeed, the legislative history demonstrates that
Congress intended that Title X funds be kept separate and distinct
from abortion-related activities.  Moreover, there is no need to
invalidate the regulations in order to save the statute from
unconstitutionality, since petitioners' constitutional arguments do
not carry the day.  Pp. 11-15.

    2. The regulations do not violate the First Amendment free speech
rights of private Title X fund recipients, their staffs, or their
patients by impermissibly imposing viewpoint-discriminatory conditions
on Government subsidies.  There is no question but that MDRV 1008's
prohibition is constitutional, since the Government may make a value
judgment favoring childbirth over abortion, and implement that
judgment by the allocation of public funds.  Maher v. Roe, 432 U. S.
464, 474.  In so doing, the Government has not discriminated on the
basis of viewpoint; it has merely chosen to fund one activity to the
exclusion of another.  Similarly, in implementing the statutory
prohibition by forbidding counseling, referral, and the provision of
information regarding abortion as a method of family planning, the
regulations simply ensure that appropriated funds are not used for
activities, including speech, that are outside the federal program's
scope.  Arkansas Writers' Project, Inc. v. Rag land, 481 U. S.  221,
distinguished.  Petitioners' view that if the Government chooses to
subsidize one protected right, it must subsidize analogous counterpart
rights, has been soundly rejected.  See, e. g., Regan v. Taxation With
Representation of Wash., 461 U. S. 540.  On their face, the
regulations cannot be read, as petitioners contend, to bar abortion
referral or counseling where a woman's life is placed in imminent
peril by her pregnancy, since it does not seem that such counseling
could be considered a "method of family planning" under MDRV 1008, and
since provisions of the regulations themselves contemplate that a
Title X project could engage in otherwise prohibited abortion-related
activities in such circumstances.  Nor can the regulations'
restrictions on the subsidization of abortion-related speech be held
to unconstitutionally condition the receipt of a benefit, Title X
funding, on the relinquishment of a constitutional right, the right to
engage in abortion advocacy and counseling.  The regulations do not
force the Title X grantee, or its employees, to give up
abortion-related speech; they merely require that such activities be
kept separate and distinct from the activities of the Title X project.
FCC v.  League of Women Voters of Cal., 468 U. S. 364, 400; Regan,
supra, at 546, distinguished.  Although it could be argued that the
traditional doctor-patient relationship should enjoy First Amendment
protection from Government regulation, even when subsidized by the
Government, cf., e. g., United States v. Kokinda, 497 U. S. ---, ---,
that question need not be resolved here, since the Title X program
regulations do not significantly impinge on the doctor-patient
relationship.  Pp. 15-24.

    3. The regulations do not violate a woman's Fifth Amendment right
to choose whether to terminate her pregnancy.  The Government has no
constitutional duty to subsidize an activity merely because it is
constitutionally protected and may validly choose to allocate public
funds for medical services relating to childbirth but not to abortion.
Webster v. Reproductive Health Services, 492 U. S. ---, ---.  That
allocation places no governmental obstacle in the path of a woman
wishing to terminate her pregnancy and leaves her with the same
choices as if the Government had chosen not to fund family-planning
services at all.  See, e. g., Harris v.  McRae, 448 U. S. 297, 315,
317; Webster, supra, at ---.  Nor do the regulations place
restrictions on the patient/doctor dialogue which violate a woman's
right to make an informed and voluntary choice under Akron v.  Akron
Center for Reproductive Health, Inc., 462 U. S. 416, and Thornburg v.
American College of Obstetricians and Gynecologists, 476 U. S. 747.
Unlike the laws invalidated in those cases, which required all doctors
to provide all pregnant patients contemplating abortion with specific
antiabortion information, here, a doctor's ability to provide, and a
woman's right to receive, abortion-related information remains
unfettered outside the context of the Title X project.  The fact that
most Title X clients may be effectively precluded by indigency from
seeing a health-care provider for abortion-related services does not
affect the outcome here, since the financial constraints on such a
woman's ability to enjoy the full range of constitutionally protected
freedom of choice are the product not of governmental restrictions,
but of her indigency.  McRae, supra, at 316.  Pp. 24-27.

Rehnquist, C. J., delivered the opinion of the Court, in which White,
Kennedy, Scalia, and Souter, JJ., joined.  Blackmun, J., filed a
dissenting opinion, in which Marshall, J., joined; in Part I of which
O'Connor, J., joined; and in Parts II and III of which Stevens, J.,
joined.  Stevens, J., and O'Connor, J., filed dissenting opinions.
 
             
     1990 OHIO V. AKRON CENTER FOR REPRODUCTIVE HEALTH ET AL. DECISION

Many thanks to Kevin Darcy for forwarding this information to me.

   No. 88-805.  Argued November 29, 1989--Decided June 25, 1990

 As enacted, Ohio's Amended Substitute House Bill 319 (H. B. 319)
makes  it  a  crime for a physician or other person to perform an
abortion on an unmarried,  unemancipated,  minor  woman,  unless,
inter  alia,  the  physician provides timely notice to one of the
minor's parents or a juvenile court issues an  order  authorizing
the  minor to consent.  To obtain a judicial bypass of the notice
requirement, the minor must present clear  and  convincing  proof
that  she  has  sufficient  maturity  and information to make the
abortion decision herself, that one of her parents has engaged in
a pattern of physical, emotional, or sexual abuse against her, or
that notice is not in her best interests.  Among other things, H.
B.  319  also allows the physician to give constructive notice if
actual notice to the parent proves impossible ``after  a  reason-
able  effort'';  requires the minor to file a bypass complaint in
the juvenile court on prescribed forms; requires  that  court  to
appoint  a guardian ad litem and an attorney for the minor if she
has not retained counsel; mandates expedited bypass hearings  and
decisions  in  that  court and expedited review by a court of ap-
peals; provides constructive authorization for the minor to  con-
sent  to  the  abortion  if either court fails to act in a timely
fashion; and specifies that both courts must maintain the minor's
anonymity  and the confidentiality of all papers.  Shortly before
H. B. 319's effective date, appellees--an abortion facility,  one
of  its  doctors,  and  an  unmarried, unemancipated, minor woman
seeking an abortion there--and others filed a facial challenge to
the  statute's  constitutionality  in the Federal District Court,
which ultimately issued an injunction preventing H. B. 319's  en-
forcement.   The Court of Appeals affirmed, concluding that vari-
ous of the statute's provisions were constitutionally defective.

 Held: The judgment is reversed.

 854 F. 2d 852, reversed.

  JUSTICE KENNEDY delivered the opinion of the Court with respect
to  Parts I, II, III, and IV, concluding that, on its face, H. B.
319 does not impose an undue, or otherwise unconstitutional, bur-
den on a minor seeking an abortion.  Pp. 4-14.

  1. House Bill 319 accords with this  Court's  cases  addressing
the  constitutionality  of parental notice or consent statutes in
the abortion context.  Planned Parenthood of Central Missouri  v.
Danforth,  428 U. S.  52; Bellotti v. Baird, 443 U. S. 622; H. L.
v. Matheson, 450 U. S. 398; Planned Parenthood  Assn.  of  Kansas
City, Mo., Inc. v. Ashcroft, 462 U. S. 476; Akron v. Akron Center
for Reproductive Health, Inc., 462 U. S. 416.  Pp. 4-11.

   (a) Whether or not the Fourteenth Amendment requires  parental
notice statutes, as opposed to parental consent statutes, to con-
tain judicial bypass procedures, H. B. 319's bypass procedure  is
sufficient  because  it meets the requirements identified in Dan-
forth, Bellotti, Ashcroft, and Akron for the more intrusive  con-
sent  statutes,  particularly  the four criteria set forth by the
plurality in Bellotti, supra, at 643-644.  First, the statute sa-
tisfies the requirement that the minor be allowed to show the ma-
turity to make  her  abortion  decision  without  regard  to  her
parents'  wishes.  Second, by requiring the juvenile court to au-
thorize her consent upon determining that the abortion is in  her
best  interests  and  in  cases  where she has shown a pattern of
abuse, H. B. 319 satisfies the requirement that she be allowed to
show  that,  even if she cannot make the decision by herself, the
abortion would be in her best interests.  Third, the  requirement
that  a  bypass  procedure ensure the minor's anonymity is satis-
fied, since H. B. 319 prohibits the juvenile court from notifying
the  parents  that the complainant is pregnant and wants an abor-
tion and requires both state courts to preserve her anonymity and
the confidentiality of court papers, and since state law makes it
a crime for any state employee to disclose documents  not  desig-
nated  as  public records.  Neither the mere possibility of unau-
thorized, illegal disclosure by state employees nor the fact that
the  H. B. 319 complaint forms require the minor to provide iden-
tifying information for administrative purposes  is  dispositive.
Complete  anonymity is not critical under this Court's decisions,
and H. B. 319 takes reasonable steps to prevent the  public  from
learning of the minor's identity.  Fourth, H. B.  319's time lim-
its on judicial action satisfy the requirement that a bypass pro-
cedure  be conducted with expedition.  Even if, as appellees con-
tend, the bypass procedure could take up to 22 calendar days, in-
cluding  weekends  and  legal holidays, that possibility does not
suffice to invalidate the statute on its face.  See, e. g.,  Ash-
croft, supra, at 477, n. 4, 491, n. 16.  Pp. 5-9.

   (b) The Bellotti criteria need not be extended by imposing ap-
pellees'  suggested additional requirements on bypass procedures.
First, H. B. 319 is not rendered  unconstitutional  by  the  fact
that  its constructive authorization provisions do not require an
affirmative order authorizing the physician to act in  the  event
that  either  state court fails to act within the prescribed time
limits.  Absent a showing that those limits will be ignored,  the
State  may expect that its judges will follow mandated procedural
requirements.  Moreover, Ashcroft, supra, at 479-480, n. 4,  does
not require constructive authorization provisions, which were ad-
ded by Ohio out of an abundance of caution and  concern  for  the
minor's  interests.   Second,  a  bypass procedure such as Ohio's
does not violate due process by placing the burden  of  proof  on
the  issues  of maturity or best interests on the minor or by re-
quiring a heightened, clear and convincing evidence  standard  of
proof.   The plurality in Bellotti, supra, at 634, indicated that
a State may require the minor to bear  the  burden  of  proof  on
these  issues.   Moreover, a State may require a heightened stan-
dard of proof when, as here, the bypass procedure contemplates an
ex parte proceeding at which no one opposes the minor's testimony
and she is assisted by an  attorney  and  a  guardian  ad  litem.
Third,  H.  B.  319's  statutory  scheme and the bypass complaint
forms do not deny an unwary and unrepresented minor the opportun-
ity  to  prove  her  case  by  requiring her to chose among three
forms, the first of which relates only to maturity, the second to
best  interests,  and the third to both.  Even assuming some ini-
tial confusion, it is unlikely that the Ohio courts will treat  a
minor's  choice  of  forms without due care and understanding for
her unrepresented status.  Moreover, she does not make a  binding
election by her initial form choice, since H. B. 319 provides her
with appointed counsel after filing the complaint and allows  her
to move to amend the pleadings.  Pp. 9-11.

  2. Even assuming that H. B. 319 gives a  minor  a  substantive,
state-law  liberty  or  property  right ``to avoid unnecessary or
hostile parental involvement'' upon proof of maturity or best in-
terests,  the  statute does not deprive her of this right without
due process, since its confidentiality provisions, expedited pro-
cedures,  pleading  form  requirements, clear and convincing evi-
dence standard, and  constructive  authorization  provisions  are
valid on their face.  Pp. 12-13.

  3. House Bill 319 is not facially invalid simply because it re-
quires  parental  notice to be given by the physician rather than
by some other qualified person.  Since the physician has a  supe-
rior  ability to garner and use important medical and psychologi-
cal data supplied by a parent upon receiving notice, a State  may
require  the physician himself to take reasonable steps to notify
the parent.  See Matheson, supra, at 400, 411.  In addition,  the
conversation  with  an experienced and detached physician may as-
sist the parent in approaching the problem in a mature  and  bal-
anced  way and thereby enable him to provide better advice to the
minor than would a conversation with a less  experienced  person.
Any  imposition on the physician's schedule is diminished by pro-
visions allowing him to give notice by mail if  he  cannot  reach
the  parent  ``after a reasonable effort'' and to forgo notice in
the event of certain emergencies, which provisions constitute  an
adequate  recognition  of his professional status.  Akron, supra,
at 446-449, distinguished.  Pp. 13-14.

  JUSTICE KENNEDY, joined by THE CHIEF  JUSTICE,  JUSTICE  WHITE,
and  JUSTICE  SCALIA,  concluded in Part V that H. B. 319 consti-
tutes a rational way to further legitimate ends.  A free and  en-
lightened  society may decide that each of its members should at-
tain a clearer, more tolerant understanding of the profound  phi-
losophic  choices  confronting  a  woman considering an abortion,
which decision will affect her own destiny and  dignity  and  the
origins  of  the  other human life within the embryo.  It is both
rational and fair for the State to conclude  that,  in  most  in-
stances,  the beginnings of that understanding will be within the
family, which will strive to give  a  lonely  or  even  terrified
minor advice that is both compassionate and mature.  Pp. 14-15.

  JUSTICE STEVENS, agreeing that H. B. 319 is not unconstitution-
al  on its face, concluded that, in some of its applications, the
one-parent notice requirement will  not  reasonably  further  the
State's  legitimate  interest  in  protecting  the welfare of its
minor citizens.  The question whether the judicial bypass  is  so
obviously inadequate for such exceptional situations that the en-
tire statute should be invalidated must await the  statute's  im-
plementation  and  the evaluation of the significance of its res-
trictions in light of its administration.  The State must provide
an  adequate  mechanism  for  avoiding  parental notification for
cases in which the minor is mature or notice would not be in  her
best  interests.   See  Akron  v.  Akron  Center for Reproductive
Health, 462 U. S. 416, 441, n. 31.  Pp. 1-3.

 KENNEDY, J., announced the judgment of the Court, and  delivered
the  opinion  of  the Court with respect to Parts I, II, III, and
IV, in which REHNQUIST, C. J., and WHITE, STEVENS, O'CONNOR,  and
SCALIA,  JJ.,  joined,  and an opinion with respect to Part V, in
which REHNQUIST,  C. J.,  and  WHITE  and  SCALIA,  JJ.,  joined.
SCALIA,  J.,  filed  a concurring opinion.  STEVENS, J., filed an
opinion concurring  in  part  and  concurring  in  the  judgment.
BLACKMUN,  J.,  filed  a dissenting opinion, in which BRENNAN and
MARSHALL, JJ., joined.

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