From: dsholtsi@csl36h.csl.ncsu.edu (Doug Holtsinger)
Subject: Roe v. Wade permits the purposeful killing of viable fetuses
Followup-To: talk.abortion
Reply-To: dsholtsi@csl36h.csl.ncsu.edu (Doug Holtsinger)
Organization: North Carolina State University
Date: Fri, 28 Aug 1992 19:57:34 GMT

In article <1992Aug27.234035.23177@csus.edu> 
chaneysa@nextnet.csus.edu (Stephen A Chaney) writes:

> Unless pro-choice really means a woman has a right to demand that the
> fetus be killed simply because she wants to kill someone who can't
> fight back, there is absolutely, positively no way between here and
> three trips to hell and back, that the woman has any right to a dead
> fetus in the third trimester. 

The following analysis of Roe v. Wade, written before the Court's 
decision in Colautti v. Franklin, suggests that Roe v. Wade permits 
a woman to have the physician purposely kill a viable fetus during
an abortion procedure.  

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

   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.

   ...

      B. The Doctor's Responsibility Subsequent to Viability

  "The health considerations which permit the abortion of a viable fetus
   include a wide variety of factors[94]. The question addressed in the
   first part of this Section is the extent to which the woman's health
   interest can prevail over the state's ``compelling'' interest in the
   viable fetus in the course of abortion. Following this discussion, the
   remainder of this Section will consider the balance of interests once
   the operation has been completed.

   1. Viable Fetus During Abortion

   The state may not increase the risks upon a woman during an abortion
   operation in order to save the fetus[95]. The sole rationale for
   overriding the state's interest in potential life and permitting
   postviability abortion is the health of the woman, and it would be
   anomalous if the state could further endanger that health by
   mandating procedures to save the fetus. The determination whether
   a certain procedure would increase the risks to the woman must be
   made by the attending physician unless the state can show by clear
   and convincing evidence that the woman's health interest would be
   better served through an alternative means of making this judgement.
   In view of the great discretion accorded the attending physician
   by Roe and Doe[96], the doctor will be free to adopt the course he
   thinks best.

   In some cases, however, the risks posed to the mother may be the
   same whether the fetus is saved or destroyed[97]. In this setting,
   the physician's choice will not be dictated by a judgement as to
   the safest medical procedure. Even under such conditions, it can
   be argued that Roe bars the state from restricting the physician's
   option to deliberately destroy the viable fetus. The Court explicitly
   excepted from the range of permissible state regulation those abortions
   necessary to preserve the woman's health[98]; no mention is made of
   a qualification or a condition on that exception. Furthermore, those
   very health considerations that justify the abortion decision may also
   entail the destruction of the fetus; for example, a woman's 
   psychological health might be impaired unless she were assured
   that the fetus was dead[99]. Finally, intrusive state regulation in
   this situation would infringe on the doctor's judgement as to what
   is in the best health interests of the patient, and the Court may 
   well be reluctant to allow such restriction on the doctor's decisions.
   For these reasons, Roe could be interpreted as effectively precluding
   the states from acting to protect even a viable fetus during a 
   constitutionally protected abortion undertaken to preserve the life
   or health of the mother[100].

   Nevertheless, it may be troubling to read Roe as allowing the 
   deliberate destruction of a viable fetus when there is a possibility
   of removing it alive without increased danger to the mother. One
   underlying principle of Roe is that the viable fetus has developed
   sufficiently to merit state protection; indeed, by the onset of
   viability, the viable fetus could be likened to a premature infant[101].
   As such, the deliberate destruction of the viable fetus is akin to
   infanticide[102], and it is doubtful whether the woman's interest
   in health can extend so far[103]. 

   [...] The doctor is still free to decide whether an abortion is
   necessary; but if two procedures are equally safe for the mother,
   the state may require that the one that is best for the fetus be
   selected. The woman's interest in destruction of the fetus is
   somewhat more impaired[105], but this interest may have to yield
   to the state's interest in a viable fetus.

   However, if the state wishes to impose an obligation on the doctor
   to take steps during the operation to preserve the fetus, it can do
   so only by means of an explicit statute setting forth the nature
   and extent of the doctor's obligations. A doctor could easily
   assume, under Roe, that he is free to conduct any procedure he
   wishes; he at least is entitled to some fair notice of his
   obligations to the fetus. Even if a doctor were vaguely aware of
   his duties in this regard, it would be unfair to him and the
   patient to make him guess as to the scope and extent of those
   obligations[106]. A state that has not enacted a statute to cover
   this situation is without power to hold the doctor criminally
   liable. Since the fetus in this context is, by definition, not
   yet born alive, normal homicide statutes would not be applicable[107].

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

In the analysis above, the author assumes that the state may
require the physician to employ the abortion technique which
is "best for the fetus", as long as no other technique is 
necessary to preserve the life or health of the mother. 
This type of regulation appears to be the only means for 
the state to give protection to a viable fetus under Roe. 

However in Colautti v. Franklin, the Supreme Court ruled that 
the state may NOT require the physician to employ the abortion
technique which is "best for the fetus", even if the technique 
would not increase the risks to the mother.  

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

   Colautti v. Franklin, 439 U.S. 400,401 (1979)

   We also conclude that the standard-of-care provision of 5(a) [of the
   Pennsylvania abortion statute] is impermissibly vague. The standard-
   of-care provision, when it applies, requires the physician to

    ``exercise that degree of professional skill, care and diligence
      to preserve the life and health of the fetus which such person
      would be required to exercise in order to preserve the life and
      health of any fetus intended to be born and not aborted and the
      abortion technique employed shall be that which would provide
      the best opportunity for the fetus to be aborted alive so long
      as a different technique would not be necessary in order to
      preserve the life or health of the mother.''

   ...

   The statute does not clearly specify, as appellants imply, that the
   woman's life and health must always prevail over the fetus' life
   and health when they conflict. The woman's life and health are not
   mentioned in the first part of the state stated standard of care,
   which sets forth the general duty to the viable fetus; they are 
   mentioned only in the second part which deals with the choice of
   abortion procedures. Moreover, the second part of the standard directs
   the physician to employ the abortion technique best suited to fetal
   survival ``so long as a different technique would not be *necessary*
   in order to preserve the life or health of the mother'' (emphasis
   supplied). In this context, the word ``necessary'' suggests that
   a particular technique must be indispensable to the woman's life or
   health--not merely desirable--before it may be adopted. And the
   ``life or health of the mother,'' as used in 5(a) [of the Pennsylvania
   abortion statute], has not been construed by the Courts of the
   Commonwealth to mean, not 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. Cf. United States v. Vuitch,
   402 U.S., at 71-72; Doe v. Bolton, 410 U.S., at 191."

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


Doug Holtsinger

Newsgroups: talk.abortion