From: HADCRJAM@admin.uh.edu (MILLER, JIMMY A.)
Subject: Re: A comment on RvW
Organization: University of Houston Administrative Computing
Date: Tue, 28 Jul 1992 18:53:35 GMT
X-News-Reader: VMS NEWS 1.20

In <1992Jul28.163715.12871@ncsu.edu> dsh@csl36h.csl.ncsu.edu writes:

> In article <1992Jul27.220341.247412@cs.cmu.edu> 
> garvin+@cs.cmu.edu (Susan Garvin) writes:
> 
> >HADCRJAM@admin.uh.edu (MILLER, JIMMY A.) writes:
> 
> >> This is just something interesting I noted when reading the text of the
> >> Supreme Court's decision.  It has been mentioned (at least in passing)
> >> before. While RVW is generally considered as granting women the right to 
> >> choose (and has been treated that way by the laws), it actually (as the 
> >> text is written) does no such thing.  What it does do is prevent the states
> >> from interfering with the DOCTOR's decision vis a vis abortion prior to 
> >> the first trimester etc. etc.
> >>
> >> RVW *as written* does not *seem* to grant the choice to women.  Obviously
> >> that is how it has turned out in practice.  [...]

--Just a reminder that this is not an attempt by myself to discredit RvW.  I
--was just curious as to how others viewed this apparent oddity.

> > No, you didn't suddenly discover a major flaw in Roe, as you
> > seem to believe.  I can see that you are basing your erroneous 
> > interpretation on a few words in the decision, while ignoring 
> > the lengthy discussion of the right to privacy.  Perhaps you
> > should read the decision again.
> >Susan
> 
> I think Mr. Miller's reading of Roe is correct. The Court ruled 
> that the privacy right involved "cannot be said to be absolute",
> and that the state does have an interest in protecting the woman's
> health.
> 
> I think the key test of the validity of Mr. Miller's thesis is
> whether or not women have the right to self-abort under Roe.  
> Roe allows the states to require licensed physicians to perform
> the abortion procedure; it seems that the state could prohibit 
> non-physicians from self-aborting. 
> The basis for the Court's ruling is the supposition that a first 
> trimester abortion performed by a physician is safer than childbirth,
> and so the state cannot restrict first trimester abortions on the
> basis of protecting the woman's health. If self-induced abortions
> were more dangerous than childbirth, then the state could use that
> as a basis for prohibiting (or restricting) self-induced abortions.
> Doug Holtsinger

  Even if self-abortion were as safe as "clinical", the state could still
regulate it once entering the second trimester.  The right to privacy WRT
abortion is sufficiently diminished at that point, according to the Court.

  Well, I have taken the time to look over the decision as written up in the 
FAQ.  It is incomplete, as is noted in the FAQ, and may well be that something
missing might indeed shed some light on this curiousity (as I see it).

  While I do not consider myself to have any "thesis" as Doug puts it, the
summary of the judgement states that the abortion decision "must be left to 
the medical judgement of the pregnant woman's attending physician."  Not
the woman, but her physician.

  This statement would seem to be slightly at odds with the discussions by
the Court earlier in the decision which stated, quite clearly, that the
right to privacy did indeed include the abortion decision (w/some provisos).

  I am not certain what real effect even a strict reading of the summary
passage would have in reality.  A woman desirous of an abortion could simply
keep seeking a "second opinion" until she found a doctor who agreed with her,
and would perform the procedure.  This may even be how things developed.


semper fi,

Jammer Jim Miller 
Texas A&M University '89 and '91
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