From: greeny@top.cis.syr.edu (J. S. Greenfield)
Subject: The facts about Roe, Doe, and Colautti (was Roe is abortion-on-demand)
Organization: Syracuse University, CIS Dept.
Distribution: na
Date: Wed, 12 Aug 92 23:57:27 EDT

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.

On the basis of this claim, I have undertaken to further 
research this matter.  As it turns out, not only does 
Colautti v. Franklin fail to support Mr. Holtsinger's 
claims--the court opinion in the case specifically *rejects* 
the idea that abortion on demand is a protected right 
through the full term of a pregnancy.

As a result, it is apparent that I was incorrect in my 
earlier claim that no court precedent had either supported 
or rejected the claims made by Mr. Holtsinger (and others).  
In fact, the Supreme Court *has* rejected the claims made by 
Mr. Holtsinger.

In a nutshell, Roe v. Wade establishes that, through the 
first trimester, abortion on demand *is* a woman's right.  
As such, any restrictions applied during the first trimester 
must be sufficiently broad so as not to infringe upon that 
right.  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.

Doe v. Bolton involved a Georgia abortion statute that, in 
essence, put severe restrictions on abortion, but did 
include an exception based upon preserving the health of the 
mother.  The statute did not make any distinction between 
pre- and post-viability abortions.  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.  (Several 
other restrictions in the Georgia statute were found to be 
unconstitutional.)

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.

Colautti v. Franklin is a case primarily involving the power 
of a state to establish a definition of fetal viability.  
Some tangential discussion of the term "health" is included, 
but the court opinion specifically rejects the idea that 
there is an absolute right to abortion on demand.

These facts absolutely contradict Mr. Holtsinger's claims.

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.  
This simply makes no logical sense, and is not supported by 
the facts.


What follows is an extended summary of the relevant material 
I gathered, and includes excerpts from and references to 
several sources regarding the legal aspects of abortion.  
(Warning, it is very long--approx. 3500 words.)

All of the sources were found at the Syracuse University Law 
Library.


I have no doubt that the following summary will have 
absolutely no effect upon Mr. Holtsinger's understanding of 
the law regarding abortion, since I am already convinced 
that he has no real interest in any scholarly examination of 
the questions involved.

I hope, however, that the following summary, will be of 
interest to *somebody* out there, and will help to eliminate 
the confusion that Mr. Holtsinger and others are trying to 
propagate.

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

Sources:

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

[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).

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

[5] L. Wardle, "The Abortion Privacy Doctrine: A Compendium 
and Critique of Federal Court Abortion Cases," (1981).

(Note that for this discussion, [2] and [3], which do not 
discuss the issues relevant to this matter, have been used 
solely as sources for the actual court opinions in Doe v. 
Bolton, and Roe v. Wade, respectively.)


All excerpts are reprinted without permission.  (With luck, 
they will fall under "Fair Use" provisions...)


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...."

"To summarize and to repeat:

"1. A state criminal abortion statute of the current Texas 
type, that excepts from criminality only a life saving 
procedure on behalf of the mother, without regard to 
pregnancy state 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."

"...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...."

(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.)

As such, Roe v. Wade clearly establishes that a woman's 
right to an abortion is dependent upon the stage of the 
pregnancy.  The states are, clearly, allowed to enact 
restrictions, and even prohibitions under Roe,
contrary to the claim that Roe requires "abortion on demand" 
at any time
"up to the moment of birth."  Had Roe truly required 
abortion on demand throughout the entire pregnancy, it is 
incomprehensible why the court would have been so precise in 
distinguishing the state's differing rights during different 
stages of pregnancy.

The companion case of Roe, Doe v. Bolton, supported the 
decision of Roe (and the court opinion was also written by 
Blackmun).  This fact is best expressed by Chief Justice 
Burger, in a concurring opinion (reprinted in [2]):

"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."


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."


The following excerpt from Justice Blackmun's court opinion 
in Doe represents the entire discussion of the "health" 
issue on which Mr. Holtsinger's argument rests (taken from 
the reprint in [3]--note that Doe challenged the health 
exception in the Georgia statute on the grounds that it was 
unconstitutionally vague):

"The vagueness argument is set at rest by the decision in 
United States v. Vuitch, 402 U. S. 62, 71-72 (1971), where 
the issue was raised with respect to a District of Columbia 
statute making abortions criminal 'unless the same were done 
as necessary for the preservation of the mother's life or 
health and under the direction of a competent licensed 
practitioner of medicine.'  That statute has been construed 
to bear upon psychological as well as physical well-being.  
That being so, the Court concluded that the term 'health' 
presented no problem of vagueness.  'Indeed, whether a 
particular operation is necessary for a patient's physical 
or mental health is a judgment that physicians are obviously 
called upon to make routinely whenever surgery is 
considered."  Id., at 72.  This conclusion is equally 
applicable here.  Whether, in the words of the Georgia 
statute, 'an abortion is necessary' is a professional 
judgment that the Georgia physician will be called upon to 
make routinely.

"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 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 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].

"...the Roe model focuses on different 'health' 
considerations in each of its three stages.  The 
distinctions between the different 'health' concerns 
associated with the three stages of the Roe model must be 
given special emphasis because under Roe these distinctions 
are of constitutional significance.  It is especially 
important to recognize the distinctions between the 'health' 
exceptions of the first and third stage abortion regulation 
model....  The mandatory 'life or health' exception, which 
must apply to allow abortion even after viability, when the 
state has a compelling reason to restrict abortion, must not 
be confused with the 'health' conditions which may justify a 
'medical judgment' authorizing an abortion on demand during 
the first trimester.[footnote32]"

[footnote32]: "In Roe the Court clearly declared that during 
the first trimester, the state must allow abortion whenever 
a woman wants one and a doctor is willing to perform it.  
Another way to describe this rule, in terms familiar in 
traditional abortion law, is that the state may prohibit 
abortions generally, but it must provide an exception 
permitting first-trimester abortions necessary for 'health' 
reasons--with the 'health' exception defined so as to permit 
abortion on demand.  This is the approach suggested by Doe, 
and it is this little fiction (allowing all factors 
justifying first trimester abortion on demand to come under 
the label of 'health') that has precipitated unnecessary 
confusion about the scope of the mandatory post-viability 
exception for *bona fide* 'life or health' preserving 
abortions."

"In Roe v. Wade, the Court first applied its mandatory first 
trimester 'health exception rule (abortion on demand) to 
invalidate a state criminal abortion law.  ...Texas had 
prohibited all abortions except those performed on medical 
advice 'for the purpose of saving the life of the mother.' 
410 U. S. at 119.  The Texas statute failed to take note of 
the stage of pregnancy, and of less-than-life-threatening 
health risks.  Both of these defects were identified by the 
Court as requiring the invalidation of the statutes. [sic]  
Id. at 164.  Thus, the first-trimester health exception was 
one of the necessary constitutional requirements which the 
Texas law failed to satisfy."

"Although the Roe discussion of first-trimester abortion on 
demand reveals the temperament of the Court, statements made 
in the abstract are never as helpful as analysis made in the 
course of applying a rule to the concrete facts of a 
specific case.  Thus, there has been some discussion in 
subsequent court cases of the precise scope and extent of 
the mandatory 'health' exception to first trimester abortion 
restrictions.

"The leading case to illustrate and apply the Roe 
requirement that first-trimester abortions must be left 
unrestricted by criminal laws to the unqualified 'medical 
judgment' of the pregnant woman's physician is Doe v. 
Bolton, the companion case of Roe.  The Georgia criminal 
abortion laws challenged in Doe (based on the Model Penal 
Code) prohibited all abortions except those performed by a 
licensed physician who determined, "based upon his best 
clinical judgment,' that an abortion was 'necessary' because 
the pregnancy (1) presented the risk of a serious and 
permanent injury to the mother's health, (2) resulted from 
felonious intercourse, or (3) was likely to produce a 
mentally or physically defective offspring.  410 U.S. at 183 
n.3.  A three judge district court held that the state could 
not limit the reasons for which an abortion could be legally 
performed and the part of the statute limiting abortions to 
those done for the three noted reasons was invalidate; but 
the remainder of the statute was left intact.  Doe v. 
Bolton, 318 F.Supp. 1048 (N.D. Ga. 1970).  Thus modified, 
the Georgia law prohibited all abortions except those 
performed by a licensed physician who determined that 'based 
upon his best clinical judgment...an abortion is necessary.'

"On appeal to the Supreme Court, the appellants argued that 
the law thus remaining was unconstitutionally vague because 
'the word "necessary" [did] not warn the physician of what 
conduct [was] proscribed; that the statute [was] wholly 
without objective standards and [was] subject to diverse 
interpretations; and that doctors [would] choose to err on 
the side of caution and [would] be arbitrary.' 410 U.S. at 
191.  The Supreme Court rejected the arguments citing United 
States v. Vuitch, 402 U.S. 62(1971), wherein the District of 
Columbia criminal abortion statute prohibiting all abortions 
except those 'done as necessary for the preservation of the 
mother's life or health' had been found unconstitutionally 
vague.  The surviving portion of the Georgia statute only 
called for the exercise of 'medical judgment' by the 
physician. [footnote 36]"

[footnote 36]: "While the Court in both Doe and Roe noted 
that the judgment to be exercised was a 'medical judgment,' 
yet in the same sentence, the Court listed a number of *non-
medical* factors which could be considered by a doctor 
exercising such 'medical judgment.'  This apparent 
inconsistency is resolved when one recognizes that such a 
judgment based upon such non-medical considerations is a 
'medical judgment' in the sense that it is a judgment made 
by a medical professional."

"It is apparent that the Court in Doe did not intend to 
limit the considerations of physicians under the Georgia law 
to the parameter of physical well-being; that is foreclosed 
by the reference to Vuitch.  And the specific inclusion of 
other non-'health' considerations (e.g., 'familial') 
together with and in addition to the specific reference to 
'psychological' considerations (the Vuitch addition to the 
traditional health considerations) indicates that the Court 
intended to go beyond Vuitch in its definition of the 
legitimate 'health' factors which could justify abortion 
under the Georgia law.  Clearly, then, the Court gave a very 
expansive interpretation to the implied 'health' exception 
to the Georgia abortion prohibition statute.  Indeed, since 
the Court permitted a doctor to recommend abortion for any 
reason whatever, it authorized abortion on demand.

"Since the Georgia law applied during all stages of 
pregnancy, the implied 'health' exception, if it were to 
save the statute, had to be interpreted broadly enough to 
satisfy the command in Roe that during the *first trimester* 
the abortion decision be left unrestricted by state criminal 
prohibitions.  That is, the implied 'health' exception tot 
he Georgia criminal abortion prohibition was defined by the 
Court in the context of possible application of the statute 
to first trimester abortions.  (And this broad 
interpretation of 'health' occurs in the context of 
interpreting the Georgia statute, *not* in the course of 
defining the scope of any constitutionally-mandated health 
exception.)  Thus, while Doe suggests the extent of the 
first trimester 'health' exception, it certainly is not 
indicative of the scope of the 'health' considerations 
applicable in the other stages of pregnancy (e.g., the post-
viability 'life or health' exception)."


[5] also offers some additional criticism and  analysis of 
the first- and third-trimester 'health' distinction:

"It is unfortunate (if understandable) that the Court in Roe 
and Doe resorted tot he fiction that, during the first 
trimester, it was only requiring states to permit the 
abortion for 'health' reasons when, as everyone realized, it 
really meant that during the first trimester the states must 
allow abortion on demand...It is unequivocally clear that 
prior to viability the state may not restrict the abortion 
*decision*, i.e., it may not restrict the reasons for which 
abortions may be legally permitted.

"The problem with the Court's little fiction about first-
trimester 'health' abortions is that it has unnecessarily 
confused the scope of post-viability abortions that must be 
permitted.  There, the Court used 'health' in its genuine, 
medical sense, but the first-trimester 'health' fiction 
lurks like a fog in the background.  Yet, if the Court did 
create the potential for semantic confusion, to date it has 
assiduously adhered to the conceptual distinction between 
first-trimester abortion-on-demand (for fictitious 'health' 
reasons) and the post-viability genuine medical necessity 
exception (for genuine 'health' preserving abortions).  
Unfortunately some commentators and lower courts have not 
been so careful.

"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.  A broad interpretation of this exception 
would be inconsistent with the deliberate balancing of 
interests that is at the heart of the Roe analysis, and 
would disregard the fundamental distinctions between the 
'health' concepts associated with the three stages of the 
Roe model [footnote 44]  The 'health' conditions which 
constitutionally justify an abortion on demand during the 
first trimester are unquestionably much broader than the 
'health' conditions which constitute the mandatory post-
viability 'life or health' exception."

[footnote 44]: "Writing in Colautti v. Franklin Justice 
Blackmun indicated this when he summarized the Roe decision 
noting that '*up to*
the points where important state interests provide 
compelling justifications for intervention [e.g., the second 
and third stages of pregnancy], 'the abortion decision in 
all its aspects is inherently, and primarily, a medical 
decision'...."

"In short, an expansive reading of the post-viability 'life 
or health' suggestion is logically indefensible and is 
analytically inconsistent with the Roe model of abortion 
regulation."


Finally, we reach the question of how the case of Colautti 
v. Franklin (which involved a Pennsylvania abortion statute) 
reflects upon the question of the meaning of the term 
'health.'  As mentioned previously, we note that the Court 
opinion in Colautti specifically rejects the idea that Roe 
or Doe provides an unrestricted right to abortion on demand.  
Since Mr. Holtsinger's argument suggests the exact opposite, 
his argument is clearly wrong.

We additionally note that even [4]--a work subtitled "A 
critical Study of ROE v. WADE, and DOE v. BOLTON and a Basis 
for Change" (i.e., the entire several hundred page book is 
devoted to the analysis Roe v. Wade, and includes an 
argument essentially the same as that of Mr. Holtsinger), 
and written by an individual so biased towards the pro-life 
position that he argues that not only is Roe unsupported by 
the constitution, but rather, the constitution *requires* a 
prohibition against abortion--does not cite Colautti as 
reflecting upon the question of 'health.'

Finally, we excerpt a relevant portion of the analysis of 
[5]:

"In its discussion of the problems with this part of Section 
Five the Court noted:

   And 'the life or health of the mother', as used in
   Section 5(a), has not been construed by the courts of
   the Commonwealth nor does it necessarily imply, that
   all factors relevant to the welfare of the woman may
   be taken into account by the physician in making his
   decision.  C.f. United States v. Vuitch, 402 U.S. at
   71-72, 91 S.Ct., at 1298-1299; Doe v. Bolton, 410 U.S.
   at 191, 93 S.Ct. at 747.

439 U.S. at 400.  At first glance this passage might appear 
to suggest that the Pennsylvania statute was defective 
because it did not permit post-viability abortions for all 
reasons suggested in the Doe description of permissive 
'health' justifications for first-trimester abortion.  But a 
closer examination dispels this false impression.  First, 
the page in Doe cited only contains a discussion of the 
meaning of the word 'necessary' in the Georgia statute; the 
listing of non-medical 'health' factors was noted on 
*another* page of the opinion which was *not* cited.  
Second, the Court in Doe did not consider the scope of post-
viability 'health' consideration.  Since the reference in 
Colautti to Doe is preceded by the well-known 'C.F.' signal, 
which means that the case cited supports a different but 
analogous position, [footnote 46] it is obvious that the 
Colautti Court recognized the distinction between Doe's 
discussion of first trimester 'health' considerations and 
the post-viability context of the statute it had under 
consideration.  Third, a reading of the 'life or health' 
exception to post-viability abortions in terms of the same 
broad 'health' considerations applicable in the first 
trimester would, of course, result in abortion on demand and 
effectively overrule Roe.  But, in Colautti, the Court twice 
explicitly reaffirmed Roe, 439 U.S. at 388, 393 n.11., and 
specifically reiterated Roe's declaration that a woman's 
right to choose abortion 'is not absolute or unqualified', 
and that the state has a compelling interest to 'even 
prohibit abortion' after viability. Id. at 386, 387.  Thus, 
any suggestion that the reference to Doe in Colautti means 
that the post-viability 'life or health' exception must be 
given a broad first-trimester Doe-type 'health' 
interpretation is erroneous."

[footnote 46]: "A Uniform System of Citation 7 (12th ed. 
1976)."

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


That's about all I can stand to put down.  I think it should 
be sufficiently clear that Mr. Holtsinger's arguments 
regarding the interpretation of Roe, Doe and Colautti are 
simply not supported by the facts.


-- 
J. S. Greenfield                                         greeny@top.cis.syr.edu
(I like to put 'greeny' here, 
but my d*mn system wants a 
*real* name!)                        "What's the difference between an orange?"