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- Path: sparky!uunet!stanford.edu!rock!taco!csl36h.csl.ncsu.edu!dsholtsi
- From: dsholtsi@csl36h.csl.ncsu.edu (Doug Holtsinger)
- Subject: Re: Roe v. Wade is unrestricted abortion on demand throughout pregnancy
- Message-ID: <1992Nov20.064803.18871@ncsu.edu>
- Followup-To: talk.abortion
- Sender: news@ncsu.edu (USENET News System)
- Reply-To: dsholtsi@csl36h.csl.ncsu.edu (Doug Holtsinger)
- Organization: North Carolina State University
- Distribution: na
- Date: Fri, 20 Nov 1992 06:48:03 GMT
- Lines: 125
-
- As I promised, here are my sources showing that Roe v. Wade
- is unrestricted abortion-on-demand throughout pregnancy.
- Abortions can be legally performed all the way up to the
- point of birth for virtually any reason.
-
- 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."
-
-
- Doug Holtsinger
-
-