From: decay@cbnewsj.cb.att.com (dean.kaflowitz)
Subject: Re: That Responsibility Thing, Take 2
Organization: AT&T
Distribution: na
Date: Wed, 7 Oct 1992 11:53:30 GMT

In article <1992Oct7.014858.14831@ncsu.edu> dsholtsi@csl36h.csl.ncsu.edu (Doug Holtsinger) writes:
> In article <Bvq88E.9B@news.cso.uiuc.edu> StarOwl@uiuc.edu writes:
> 
> >arsmith@lamar.ColoState.EDU (Alan Smith) writes:
> 
> >> I'm not up on my Roe v. Wade, but is it not illegal to abort a fetus in the
> >> third trimester?
> 
> > Roe v. Wade ruled, essentially, that state laws prohibiting first and
> > second trimester abortions violates a woman's Fourth Amendment rights.
> > Third trimester abortions are not protected by Roe v. Wade, but are
> > legal in some states.
> 
> 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."

Considering that less than 1% of all abortions take place in the
third trimester (approximately 100 per year), and that there is
no evidence that any significant number of these take place for
reasons other than significant threat to the health and or life
of the pregnant woman, nor has Mr Holtsinger provided any, and that
furthermore, there is no evidence but merely speculation that
Doe v Bolton is as broadly or cavalierly interpreted as Mr Holtsinger
would have us believe, nor do his citations support such a
viewpoint, his statements are not a true evaluation of the
situation.

Dean Kaflowitz

> 
> 
> >Michael Adams
> 
> 
> Doug Holtsinger
> 


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