"The Abortion Right: ""A Constitutional Right of Unique

Report Civil Society

"The Abortion Right: ""A Constitutional Right of Unique Character"""

March 11, 1980 About an hour read Download Report
Thomas R.
Senior Visiting Fellow
(Archived document, may contain errors)

' March 11, 1980 THE ABORTION RIGHT A CONSTITUTIONAL RIGHT 0 F UNIQ UE C HA RA C TER SHORT HISTORICAL SUMMARY Before the American abortion movement began in the 1960s abortion was solely a matter of state criminal law and almost all of the state laws had remained unchanged .for a century At the beginning of the American Republic, abortion was one of the many areas of the law control led by the traditions of the English common law and, therefore, was not a matter for state statutes.

Throughout its history, which began with William the Conqueror's conquest of Britain in 1066, the common law regarded deliberate direct abortion as a crime , with the severity of the crime varying in different centuries. William Blackstone (1723-1780 the great English jurist, neatly summarized the history of the common law's attitude For if a woman is quick with child with, and by a potion, or otherwise kill eth it in her womb; or if anyone beat her, whereby the child dieth in her body and she is delivered of a dead child; this, though not murder was by the antient law homicide or manslaughter.

But at present, it is not looked upon in quite so atrocious a ligh t, though it remains a very heinous misdemeanor With the development of the science of biology in the first quarter of the nineteenth century, individual states of the United States began to enact statutes providing clear legal protection for the unborn t h e several states had criminal penalties of some.kind for induced And by the end of the century, all c 1. William Blackstone, Commentaries on the Laws of England Vol. 1, pp 125 - 126 2 abortions momentum, there were criminal abortion statutes in all fifty s tates abortion to save the mother's life. Seven states permitted abortion to save the child's life for the sake of the health of the mother ing abortion was of fundamental importance to judges wheq they began deciding abortion cases in the late 1960s and early 1970s.

Cyril Means, Professor of Law at New York Law School, published what became the most influsntial article on the subject in the New York Law Forum in 1968 There, Means purported to prove that the reason for the change was that the abortion proc edure itself was so dangerous to women that the state intervened to protect women's lives, that abortion was riskier than childbirth in those days, and that state legislators had no concern for the welfare of pre-natal human life when they acted. Means's t hesis immediately became a factor in every abortion case adopted almost intact by Supreme Court Justice Blackmun in his long historical survey of abortion in the 1973 Roe v. Wade abor tion decision. Shortly after publication of his article, Means became o n e of the fouqding directors of the National Association for the Repeal of Abortion Laws, now the National Abortion Rights Action League By 1965 when the abortion movement started to gain Forty-six states and the District of Columbia permitted And four sta t es permitted it The reason for nineteenth century changes in the laws concern It was In 1978, a comprehensive historical account, in which all of Means;s conclusions were refuted, was published by historian James Mohr. In his work, the first complete hist o ry of the abortion reform movement in the nineteenth century, Mohr showed that the major force leading to state legislation to establish strict criminal penalties for abortion was the American Medical Associa tion which had an anti-abortion policy from 18 5 9, twelve years after its founding, until 1967 when it endorsed a loosening of The doctors of the AMA were motivated by concerns about dangerous medical practitioners, by nqw biological knowledge about the beginning of life at conception, and by a the abo r tion.laws 2 The Law of New York Concerning Abortion and the Status of the Foetus 1664-1968 Volume XIV, Number 3 3. James C. Mohr, Abortion in America, The Origins and Evolution of National Policy, 1800-1900 (Oxford University Press, 1978 4. In an intervie w with The Washington Star (March 7, 1973 soon after the Supreme Court's Roe and Doe decisions, the late Dr. Andre Hellegers mentioned "that conceptionwas only discovered in the 19th century. The ovum wasn't discovered until 18

27. The Court said that the Pythagoreans held as a matter of dogma that the embryo was animate from the moment of conception. Well, we didn't even know about conception until 150 years ago The American Medical Association took its stand against abortion when it became known what the process of conception was and what the ovum was. When they found out when life began, they thought it imperative to protect it from the beginning Hellegers was the former director of the Kennedy Institute for the Study of Human Reproduction and Bio-Ethics and the past president of the Society for Gynecological Research A Case of Cessation of Constitutionality New York Law Forum 3 duty to defend human life. Additionally, Mohr showed that abor tion was as safe as other surgical procedures in the nineteenth c entury. Furthermore, Mohr recounted that the nineteenth century feminists, including the most prominent, Elizabeth Cady Stanton universally condemned abortion BEFORE 1973: ABORTION IN THE STATES I Only one state changed its abortion law before 19

67. The Mississippi law was modified in 1966 to allow an abortion to save the mother's life or to abort a pregnancy resulting from rape.

By the end of 1968, five states had liberalized their abortion laws: California, Colorado, North Carolina, Maryland, and Georgi a All except the Georgia statute allowed abortions for the purpose of saving the life of the mother, for the sake of the mental health of the mother, and for pregnancies caused by rape and incest The California act did not allow abortion because of some c o ngenital defect in the child; the other four states did California prohibited abortions for any reason after twenty weeks of pregnancy and Maryland prohibited' abortions after twenty-six weeks pregnancy subject to the above-mentioned conditions and North C arolina laws required a married woman seeking an abortion to get the consent of her husband and a minor to get the consent of a parent. For all five states, the conditions under which an abortion was legal were qualified and limited in various ways. No st a te allowed abortion on demand In 1970, Washington passed a law allowing abortion on demand for the first seventeen weeks of pregnancy with three conditions a 90-day residency requirement, the father's consent if living with his wife, and the consent of a l egal guardian for a girl under eighteen. In the same year New York, Hawaii, and Alaska passed more liberal bills with Alaska extending the abortion-on demand requirement till the 20th week and New York until the 24th week. For all four states, abortions a fter the cutoff period had to be justified'on physical or mental health grounds liberalized their statutes: Arkansas, Delaware, Kansas, New Mexico, Oregon, South Carolina, Virginia, Connecticut, and Florida.

Thus a total of nineteen states had acted to per mit abortion with varying degrees of limitation in the late 1960s and early 1970s. But only the previously mentioned four states, New York Washington, Alaska, and Hawaii, had abortion on demand up until a certain time of pregnancy was qualified, that is, i t had to be justified for some reason of physical or mental health The other three states permitted abortions throughout The Colorado By the Supreme Court decisions of 1973, nine more states had In the other states, access to abortion 4 BEFORE 1973: ABORT I ON IN THE COURTS In Griswold v. Connecticut (1965),5 the Supreme Court over turned a Connecticut law that forbade the use of contraceptives by married couples said that I1specific guarantees" in the First, Third, Fourth, Fifth and Ninth amendments have ll p enumbras formed by emanations from these guarantees that help give them life and substance.Il ffpenumbrasll could also be described as Ilzones of privacy1' which government is not allowed to cross tutionally intruded into the "rjght of privacyI1 of the ". sacred pre cincts of the marital bedroom,11 Rights-older than our political parties, older than our school system.

The case was a landmark in constitutional lpw in that it was the first time that a right of privacy, in and of itself, and not connecQed to s ome other constitutional right, was recognized by the court. Thomas Y. Emerson, professor of law at Yale Law School argued the case for Planned Parenthogd. In an interview with Family Planning/Population Reporter, a publication of Planned Parenthood's Ala n Guttmacher Institute, Emerson had the following to say about the connection between Griswold and abortion it seemed to me that abortion legislation was next on the agenda. If the right of privacy included matters relating to procreation, the home, the fa m ily and marriage, than it was a logical step to say that it infhuded the right to decide whether or not to have children. As will be seen, this is what happened Justice Dogglas, writing the majority opinion These The Connecticut law unconst1 a right "olde r than the Bill of 5 6. 7 8 9 10 381 U.S. 479.

League of Connecticut at 484 at 485-486.

The vote was 7-2 in favor.of overturning the Connecticut law but the Court was badly splintered concerning the reason for the decision spoke for himself, Brennan, Warren, Goldberg, and Clark in finding the right of privacy in the "penumbras" of several am endments.

Goldberg, speaking for himself, Brennan and Warren, located the right of privacy in the Ninth Amendment. White, who concurred in the result, sepa rately claimed that the liberty clause of the Fourteenth Amendment was the basis of the decision. In still another concurring opinion, Harlan, who voted with.the majority but did not join the majority opinion, decided that the Fourteenth Amendment contained "an implicit concept of ordered liberty which was the real basis of the decision. In dissent, Ste wart and Black could discover no right of privacy guaranteed by the Constitution.

Volume 4, Number 5, October, 1975, pp. 94-95.

In the same interview, Emerson stated that Griswold "set off a chain of events,which has led quite far and perhaps further than some people thought or intended at the time He mentioned. that the "right of privacy as de fined in Griswold could be used (or has already been used) to seek judicial vindication of "the right to die or the right not to live the "constitu tional right to use drugs other "life-style" rights, the right to have public funds available for abortions and sterilizations, the right to force private hospitals to perform abortions if such a hospital is "sufficiently aided with state funds and sufficiently involved i n the public aspects of the community the right'of adults "to engage in consensual sexual rela tions of any .kind Griswold was executive director of the Planned Parenthood Douglas In a concurring opinion 5 The political movement to repeal criminal abortio n statutes which organized itself as N.A.R.A.L The National Association for Repeal of Abortion Laws) in the middle of the 1960s, agreed that Griswold was the means to overthrow abortion statutes in the courts. Lawrence Lader, one of the founding leaders of the abortion movement, stated that ''Our basis was the landmark Griswold v. Connecticut decision in 1965 in the U.S. Supremfl Court, which overthrew Connecticut's birth control law I And, in his recent book, Aborting America, Dr. Bernard Nathanson, anothe r of the important early leaders, said that "the right of privacy was the only one that would work for us in the courtf2 We cited in particular the Griswold v. Connecticut ruling Two questions dominated the test cases13 brought primarily in federal courts leading up to the Suprem,e Court's Roe and Doe human life and whether the Griswold lfprivacyi1 could be extended to include pregnancy.

Concerning the latter, a 1968' law review article by former Supreme Court Justice Tom Clark became an influence in nearly every case. In attempting to lay the constitutional groundwork for the judicial legalization of abortion, Clark formulated the principle that, tlGriswold's act was to prevent formation of the fetus. This the Court found, was constitutionally protected. I f an individual may prevent conception, wpg can he not nullify that conception when prevention has failed?"

At about the same time, the California Supreme Court decided the first case in which "a constifytional right to abortion was discovered. In People v . Belous, the California Pfigh court threw out the Chlifornia criminal abortion statute, and cited I cases in 1973: whether the Constitution protected pre-natal 11 12 13 14 15. 16 Lawrence Lader, Abortion 11, Making the Revolution (Beacon Press, 1973 Bern ard Nathanson, Aborting America (Doubleday, 1979 p. 1

92. The bookjacket of Aborting America includes the following about Nathanson's background a co-founder of the National Association for Repeal of Abortion Laws (now the National Abortion Rights Action League).

February 1971 to September 1972, he was director of the Center for Repro ductive and Sexual Health, the largest and busiest abortion clinic in the world decision on the rights to abortion, Dr. Nathanson was Chief of Obstetrical Services at St. Luk e's Hospital in New York City. I Almost all of the test cases leading to the Supreme Court's 1973 Roe and Doe decisions were brought by the Planned Parenthood Federa tion oferica and the American Civil Liberties Union. Since 1973, those two organiza tions have remained in the courts defending the abortion right promulgated bv the court p. 12 From By 1973, when the Supreme Court handed down its revolutionary I Tom Clark, Religion, Morality, and Abortion 2 Loyola U.L.R 1969) at 9.

Constitutional Appraisal 458 P. 2d 194.

The statute had already been repealed but the repeal did not figure in the case extending the privacy right to abortions. 6 Griswold as the basis for the following statement The fundamen tal right of the woman to choose whether to bear childr en follows from the Supreme Court's and this'courtls repeated acknowledgement of a right of prfyacy or liberty in matters related to marriage family and sex The California statute, the fprt said forced a woman to bear the risks of childbirthll an.I1an inv a lid infringement upon the womanls constitutional rights.I1 equivalent to a born child nia high court became the first court to remove constitutional protection from the unborn article became the foundation of many subsequent decisions, as will be seen bel ow relied upon substantially by the District Court of 28" District of Columbia in another case, U.S. v. Vuitch (1969 that has defined a great portion of the abortion issue.

Court ruled that the phrase from the District of Columbia abor tion statute "as nec essary for the preservation of the mother's life or health" was unconstitutionally vague in that it lacked the certainty required by due process and impinged on the consti tutional rights of both mothers and physicians In deciding that a woman had a const itutional right to decide whether to bear a child after conception as well as before conception, the District Court relied on the Griswold contraception decision.

The Vuitch case was upheld by the Supreme Court in 1971, but the decision affected the Distri ct of Columbia only. The Court scrutinizing the I1health1' clause, ruled that health is the state of being sound in body or mind and includes psychological as well as physical well-being. Further, the Court stated that abortion 1s permitted for mental hea l th reasons whether or not the patient has had a previous history of mental defects of abortions except or reasons of physical or. mental.health was rendered effectively meaningless by turning a lack of mental health into a feeling of mental well-being an a bortion would be allowed by law was changed into a broad indication for abortion on demand. Additionally, a medical physician, not a psychiatrist, could approve of abortion for mental health reasons and this was The court also saidl&hat an llembryo or fet u s" was not With this statement, the Califor Belous, Griswold and the Tom Clark The Belous case, relying substantially on Griswold, was The District Thus, a prohibition An exception where Extending the Griswold privacy to include abortion became the chief t ool for the federal judiciary in overturning state criminal abortion statutes. In the case2$hat eventually reached the Supreme Court, Doe v. Bolton (1970 the district court of 17. at 199 18. at 203 19. at 202 20. 305 F.Supp. 1032. 21. 319 F. Supp 1048. 7 Georgia threw out the Georgia statute saying the concept of personal liberty embodies a right to privacy which apparently is ,122 also broad enough to include the decision to abort a pregn9gcy.

The Illinois statute was overturned in Doe v. Scott 1971 Ifwe cannot distinguish the interests asserted 3~ the plaintiffs in this case from those asserted in Grisy?ld.Il The Wisconsin statute fell in Babbitz v. McCann 1970) in which the court said that ab o rtion g .a "private decision whether to bear an unquickened child win approval in the federal courts, the Supreme Court handed down anothespontraception decision Eisenstadt v. Band (March 22 1972 conviction and the Massachusetts statute upon which it was based) of birth control and abortion activist Bill Baird for illegally distributing contraceptives to unmarried persons.

Court said that sygh a law was unconstitutional under the Four teenth Amendment zone of privacy" existing in rnarZbage, which Justice D ouglas described as a coming together. In Eisenstadt, Brennan writing the majority opinion, stated that the right of privacy actually existed in the individual partners not in the relationship itself, for marriage was not "an independent entity with a min d and heart of its own but an association of two indiybduals each with a separate intellectual and emotional makeup Therefore If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted govern m e ntal intrusion into matters so fundamentally affffting a person .as the decision whether to bear or beget a child.'I (Emphasis in original During this time when "abortion rights" were beginning to In that case, the court overturned the Massachusetts The T he Griswold decision had been based on the 22 23 24 25 26 27 28 29 30 31 at 1055 321 F. Supp 1385 at 1389 310 F. Supp. 293 at 299 405 U.S. 438.

The vote was 7-1 (a vacancy existed in the Court with the retirement of Harlan completely rejected. Brennan, wri ting the opinion of the Court in which Douglas, Marshall, and Stewart joined, found the reason for the decision in the Equal Protection Clause of the Fourteenth Amendment concurring opinion, Douglas called it "a simple First Amendment case."

White, writin g for himself and Black concurred in the result but not the reason tion, but merely stated the Massachusetts law must fall to "settled constitutional doctrine" and to the Griswold decision claiming that the decision invaded "the constitutional prerogative s of the States."

Griswold at 486.

Eisenstadt at 453 at 453 In Eisenstadt, the splintered justification of Griswold was In a separate He did not locate his own reason in the clauses of the Constitu Burger dissented 8 The Eisenstadt decision took its place alongside Griswold and Belous as the means for federa13sourts to declare state abortion statutes unconstitutional It was used just twenty days later by the federal district court of Connecticut to over turn the Cggnecticut abortion statute in Abele v. Ma r kle (April 18, 1972 In citing the "If the right of privacy means any thing I1 sentence (quoted above) from Eisenstadt, the Abele court said that the Connecticut law must fall because "The Connec ticut anti-abortion laws take from women the power to determ i gz whether or not to have a child once conception has occurred.I1 fell to the federal district court which, citing Griswold and Belous, stated that "we hold a woman has a constitutional right of privacy cognizable under the Ninth and Fourteenth Amendments to determine for herself whether to 3gar a child or to terminate a pregnancy in its early stages the unborn were, or should be, protected by the Constitution and laws of the United States, the same group of decisions discu'ssed In YWCA v. Hughes (1972),35 the New Jersey, abortion statute II On the question of the humanity of the unborn and whether 32. The recent book The Brethren reports that the Eisenstadt opinion was written for the sake of the Roe and Doe abortion cases which the Supreme Court had alrea dy accepted and heard argued Brennan too had little choice but to wait for Blackmun's draft.

But in the interval, he spotted a case that he felt might help Blackmun develop a constitutional grounding for a right to abortion birth-control actiyist Bill Bair d's conviction for distributing birth-control devices without a license (Eisenstadt v. Baird).

He wanted to'use the case to extend to individuals the right to p.rivacy that was given to married couples by the 1965 Connecti cut birth-control case.

Brennan was aware that he was unlikely to get agreement on such a sweeping extension carefully worded paragraph at the end means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fu n damentally affecting a person as the decision whether to bear or beget a child beget" a child bear" a child with the abortion case in mind. Brennan hoped the language would help establish a constitutional basis, under the right to privacy, for a woman's r i ght to abortion Bob Woodward and Scott Armstrong, The Brethren Simon and Schuster Brennan was writing a majority opinion overturning He circulated his opinion with a If the right to privacy That case dealt only with contraception the decision to He includ e d the reference to the decision to 1979 pp. 175-176 33. 342 F. Supp 800 34. Abele at 802 35 342 F. Supp. 1048 36. at 1072 9 above were in substantial agreement. The Doe v. Bolton court refused to lnDositlt the Inexistence of a new beins with its own ident ity and- federal constitutional rights The Doe v. Scott court said that the state does not have Ita compelling interest in preserving all fetal life" which justifies an invasion of the woman's privacy (at 1391).

The YWCA v. Huqhes court maintained that the definition os8 human life was Inbeyond the competence of judicial resolution,tt while the Babbitz v. McCann court asserted that the right of privacy made the humanity question irrelevant it is suffi cient to conclude that the mother's interests are super i or to that of an unquickened embryo, whether the embryo is mere proto plasm, as the plan$&ff contends, or a human being, as the Wisconsin statute declares I1 (Emphasis in original silent about the humanity of the unborn because, the judges maintained, the Connecticut statute was also silent. The court then explicitly challenged the state government to define the value of fetal life. This challenge was immediately accepted by Governor Meskill who called a special sess48n of the legislature.

Thirty-five days after the Abele decision, the governor and the legislature had agreed and passed into law a comprehensive new statute, Section One of which read The public policy of the state and the intent of the legislature is to protect and preserve human life from t h e moment of conception I1 The next day, the same plantiff, Abele, brought a new case before the same three judges who had handed down the original decision. Abele sought a decision rendering the new statute unconstitutional, and in addition, sought to hav e the court hold the governor in contempt of court for advocating the new statute a complaint dismissed as ltfrivolous1l by the court In the Abele case (decided on April 18, 1972 the court was On September, 20, 1972, in its new Abele v. Markle" decision th e court'answered the statels acceptance of its challenge to assign value to fetal life. Saying that I'Baird (i.e Eisenstadt v.,Bai~q) may have anticipated the outcome of cases such as thlS, the court ruled that a I1fetug3is not a person within the meaning o f the Fourteenth Amendment.lt The court gave its permission for the state to grant rights to a fetus even though it was not a person, but any such rights could not be granted at the expense of the right to privacy which was supreme 37. at 1055. 38. at 107 5 39. at 301. 40 May 23 41. 351 F. Supp. 224 42. at 227 43. at 228. 10 Ig4two additional cases 5 1972) and Byrn v. New York City Health and Hospitals (1972 complaints were brought by parties deliberately seeking to get the courts to accord constitutional c i tizenship and personhood upon the unborn. Both claims were rejected. The McGarvey court stated that the fetus was neither a person nor a citizen and that protection of fetal life "by virtue of the Fourtggnth Amendment or the Civil Rights Act could not be j ustified.Il The Byrn court said that !#The Constitution Q9es not confer or require legal personality for the unborn It As has already been stated, the Supreme Court used the cases discussed above as the basis of its Roe v. Wade and Doe v. Bolton decisions and, in the main, accepted the ideas explicitly enunci ated in them. In doing that, the Court rejected the decisions of four lower federal courts: the cases4gf Rosen v. Louisiana State B9ard of Medical Examiners lgaO Steinberg v Brown 1970 Corkey v. Edwar d s (1971 and CTQssen v. Attorney General of Commonwealth of Kentucky 1972 In these cases, the four courts refused to throw out the criminal abortion statutes of Louisiana, Ohio, North Carolina and Kentucky, respectively. All four courts upheld any state's r ight to assert that unborn human life is valuable and worthy of pro tection by law and that such a determination was properly a legislative, not a judicial, authority. The Steinberg court ruled, that, over and above any legislative act, the Constitution m a ndated that human life be protected under the Ilexpress pro- visions of the Fifth and Fourteenth Amendments that no5gerson shall be deprived of life without due process of law I Rosen court stated that the superiority of a woygnls right of privacy was not mandated by the Constitution,II because the ri.ght of a woman Ifto destroy the embryo or fetus she carries was not so rooted in the tradition and collective Sgnscience of our people that it must be ranked as fundamental.Il Concerning the Griswold/Eisensta d t "right of privacy,I1 the The Steinberg cggrt stated that since Griswold was only an implied or deduced" right, it was inferior to the Fifth and 44 45 46 47. 48 49 50 51. 52 53 340 F. Supp 751 (Pa 286 N.E. 2d 887 at 754 at 890 318 F. Supp. 1217 321 F. Su p p. 741 322 F. Supp. 1248 344 F. Supp. 587 at 745 at 1231 54. at 1232 55. at 745 11 Fourteenth Amendments' explicit statements that no person shall be deprived of life without due process of law. The court went on to say that judicial rulings equating abor t ion and contraception were based on "ignorance of the 1ayg of nature" and paid "no attention to the facts of biology between the two was that "here there is an embryo incapable of protecting itgylf tent adults and that the real difference There the only l i ves were those of two compe The Corkey court said The basic distinction between a decision whether to bear children which is made before conception and one which is made after conception is that the first con templates the creation of a new human organism , but the latter contemplates the destruction of such an organism already created the choice whether or not to bear children is made in circumstances quite different frS8 those in which such a choice might be made after conception I This right is not absol u te1' in abortion cases because 'Ithe state's interest in the preservation of potential human life outweighs agg supercedes any right to privacy a woman or family may claim.lI The Crossen court, in considering Griswold, decided that 1973: THE SUPREME COURT DECIDES 410 U.S. 113, and Doe v. Bolton, 4&8 U.S. 179, both handed down on the same day, January 22, 1973. right of privacy was not llabso&tell or llunqualified,l' but was subject to some limitations. could only be limit

by a ''compelling state interest some point in time decidg5that "the health o the .mother .or that of potential human life" is compelling. The Court further decreed that a compel ling point in pregnancy is the end of the first trimester that point, the woman's right of privacy, and her p h ysician's also, is absolute and unqualified. From the third through the sixth month of pregnancy, the two rights of privacy can be abridged The stage was set for the Supreme Court to decide Roe v. Wade The majority sa&p that the But so If f.undamentalIl g 3right "At during pregnancy, a state is allowed to Up to 56. 57 58. 59 60 61 62 63. 64. 65 at 746 at 746 at 252 at 591.

For both decisions, Blackmun wrote the decision of the Court for himself Brennan, Marshall, Douglas, Stewart, Powell, and Burger.

Rehnquist dissented at 154 at 155 at 155 at 159 at 159 White and 12 only by state regulation of the abortion "procedure, 1166 not of the freedom to abort. After the sixth month, another llcompelling point justifying state interest (the point of viability a state can (but need not) "proscribe abortions...except when it is necessary in appropriate medical judggyent, for the preservation of the life or health of the rn0ther.l The Court gave ample evidence of what it considgged "the life or health of the mothe r 1' to include. Blackmun, spe&ing for the Roe majority, cited the Court's own U.S. v. Vuitch decision in which the Court defined llhFBlthll to include Itpsycholo gical as well as physical well-being the Court stated that an abortion for mental health reaso n s was legal "whether oF1not the patient had a previous history of mental defects I In addition, in Vuitch Speaking for the Doe majority, Blackmun mentioned that Itthe medical judgment may be exercised in the light of all factors physical, emotional, psych o logical, familial, and the woman's age relevant to the well-bel99 of the patient factors may relate to health in E, also ratified Vuitch by stating qgt doctors must interpret "health in its broadest medical context.11 Douglas, concurring in Doe, elaborate d further by stating that the only standard for a health-Breatening abortion is the judgment, of a Ilperson of insight. He added that, under Ithealth,l1 an abortion may be indicated because of Wicissitudes of life, It "suffering, dis locations, misery or t r agedy and even a "judgment based on what is appropriate in a given case, though perhaps not necessary in a strict sense only civilized step to take All these Chief Justice Burger, concurring For all these,feasons, an abortion might be Itthe Thus having al r eady said that a doctor has the absolute right to abort and a woman an equally absolute right to receive an abortion (subject only to state regulation of the Ilprocedure in the second trimester) throughout the first six months of pregnancy, the Court, des pite its disclaimers, extended the same absoluteness to the last trimester of pregnancy by making it almost impossible to exclude anything from the realm of "health. 11 76 66. 67. 68 69 70 71 72 73. 74 75 76 at 163 at 165 at 164 402 U.S. 62 (1971).

Vuitch at 72.

Vuitch at 72 at 192 at 208 at 216 at 215-216 This 'health of the mother' standard amounts to virtual elective abortion throughout the nine months because of the sweeping way in which 'health is used by pro-abortionists to cover every possible probl em of mind and situation (recall the infinite elasticity of psychiatric grounds and because the court nowhere offers a medical refinement for the term Aborting America, p. 210. 13 And, after explicitly attempting to make a distinction between the abortion right to privacy and the Griswold and Eisenstadt right to privacy, the Court in the end found no distinction at all. Both weke absolute under the Fourteenth Amendment To Justice Douglas's mind there really was no difference anyway We held in Griswold that the states may not preclude spouses from attempting to avoid the joinder of sperm and egg. If this is true, it is difficult to perceive any overriding public neS4ssity which might attach precisely at the moment of conception to both Roe and DE, to declare that the Court had invested mothers and doctors with the ''constitutionally protected right to exterminatell human life for reasons of "convenience, family planning, economics, dislike of children, the embarrassmen580f illegitimacy, etc The Court claimed t hat it could only "speculate'1 about "when life begins and that, therefore, such an issue7gas irrelevant At any rate We need not resolve the difficult question the Court said Ithe word 'person as u8gd in the Fourteenth Amendment, does not include the unbo r n In ratifying the McGarvey, Byrn, and Abele decisions, the Court stated that it had already so ruled in its Vuitch decision: "for we there would not have indulged in statutory interpretation favorable to abortion in specified circumstances if the necessa ry consequence was the termination of life entitled to Fourteenth Amendment protection.

The Roe Court furtheg2accused Texas of impermissibly adopting one theory of life and throughout both decisions repeatedly stated that the only kind of human life a stat e could recognize was "potential life1' with the caveat that such life could be recognized only after the sixth month of pregnancy89nd only if it did not interfere with a woman's "life or health tures in 1972, the year immediately preceding the Supreme Co u rt's This conclusion prompted Justice White, in a single dissent and for reasons of ''whim or caprice I There had been little legislative action in the.state.legisla 77 Doe at 217 78. at 221-222 79. at 159 80. at 158 81. at 159 82. at 162 83 Stewart had o n e more change that he insisted on before he would join the opinion not as far as the Fourteenth Amendment was concerned a person the fetus were a person, it had rights protected by the Constitution including 'life, liberty, and property that a woman's rig h ts outweighed those of the fetus of rights to protect Stewart was insistent, and Blackmun finally agreed to say clearly that a fetus was not a person It was imperative that they say more clearly that a fetus was If Then the Court would be saying Weighing t wo sets The Brethren, p. 223. 14 dual abortion discussions. The campaign for liberalization of state laws governing abortion had ground to a halt. Only five states passed legislation dealing with abortion. Florida liberal ized its statute at the order of the federal district court.

Connecticut lost two statutes at the hands of the federal district court in the Abele cases, as has already been described. The New York law passed in 1970 making abortion on request legal up to twenty-four weeks of pregnancy wa s completely repealed by the state legislature in 1972 but saved by Governor Rockefeller's veto In Massachusetts, Governor Francis Sargent vetoed a bill protecting' the life of children from the moment of conception.

The Pennsylvania legislature passed a new law by an over whelming margin in both houses 139-9 and,127-50 that read in its Declaration of Policy that the state 'Ireaffirmed its immemorial recognition that all human life is inviolable regardless of its age or form, whether possessed by the aged , the physicallg40r mentally ill, the handicapped or the unborn in the womb The law was vetoed by Governor Milton Shapp, overriden in the state senate but sustained in the state house. Thus, in 1972, not one policy-making body in the states liberalized sta te criminal abortion laws with respect to abortion on its own initiative.

The effect of the Supreme Court's decisions was to wipe out the laws of all fifty states and make irrelevant the conclusions of the state legislatures that had acted og5their criminal abortion statutes in the five years preceding 1973.

All state statutes which prohibited abortion except to save the life of the mother or which prohibited abortion completely became invalid 1973, although some had already been thrown out by lower federa l courts by that date. For the nineteen states that had liberalized their laws in varying degrees, those statutes that qualified the right to an abortion for any reason in the first or second trimes ter became null Thirty states had laws of this kind in J a nuary Even in the four states that had promulgated abortion on request, New York, Alaska, Hawaii, and Washington, a woman's access to abortion was not absolute enough abortion on request to the first four months of pregnancy; New Washington limited 84. Fa m ily Planning/Population Reporter Vol. 2, No. 1 hereinafter FP/PR 85 I was pleased with Justice Harry Blackmun's abortion decisions, which were an-unbelievably sweeping triumph for our cause, far broader than our 1970 victory in New York or the advances si nce then.

Blackmun's conclusions, that is reasoning that has produced the conclusions propped up on a misreading of obstetrics, gynecology, and embryology, and that's a dangerous way to win isn't everything it's the only thing Aborting America, p. 159 I wa s pleased with Our final victory had been I could not plumb the ethical or medical But as Vince Lombardi said Winning Emphasis in original 15 York to the first twenty-four weeks Alaska and Hawaii prohibited abortions after viability As can be seen, none o f the four states allowed for abortion for both life and health reasons in the last trimester of pregnancy The Supreme Court left the states with little authority to take an interest in pre-natal human life. The Court ruled that states may not regulate abo r tion in the first trimester except to require performance by a licensed physician, may regulate abortion in the second trimester only with respect to the procedure or mater nal health but not with respect to the reason for abortions, which must be unquest i oned, may prohibit abortion on request in the third trimester but must allow abortion for the broad lllife or health reasons prescribed in detail by the Court. The Court allowed states to require that abortions be performed by licensed physicians, that ab o rtion clinics be licensed, but disallowed a requirement that abortions be performed in hospitals during the first trimester The Court's decisions were so sweeping and definitive that there WQ~ no necessity for the states to pass any new legislation at all . State health departments were able to use the decisions themselves as the basis for promulgating regulations For example, could a state require that a woman have the consent of her husband or parent before having an abortion? May hospitals, public and pr i vate, refuse to make their facilities available for abortions? What measures could states, forbidden by the Court to protect.the life of the fetus before viability, take to protect the fetug; life after viability, this is, after the sixth month of pregna n cy Some questions were left open by the Court 86. The breadth of the and Doe decisions has not been widely ra2ported. The day after the decis.ion, Thexw York Times, in a front page stoTv, reported that the Supreme Court overruled state prohibitions of abo r tions in the first three months of pregnancy January 23, 1973 Time reported that the new abortion right existed for "six months February 3, 1973, p. 50 but, four years later, was reporting that "The U.S. Supreme Court in 1973 gave women the right to have a n abortion for any reason during the first three months of pregnancy December 5, 1977, p. 20.) More recently The Washington Post reported that "Seven years ago yesterday the Supreme Court ruled that mothers had the right to determine during the first thre e months of pregnancy whether to continue a pregnancy and bear a child January 23, 1980, p. A10 The New York Times carried a front-page story on January 16, 1980 that stated that "the Supreme Court of the United States extensively broadened the general rig h ts of women to have abortions I and on January 23, 1980 mentioned the "seventh anniversary of the Supreme Court decision that limited government regulation of abortion p. A12 I have stated earlier that the court here invented 'abortion' between viability a nd birth, previously unknown to obstetrics and gynecology. All of these 'abortions' necessarily result in the live births of viable infants unless the physician is unaware of the clinical definition of abortion and mistakenly tries to terminate the life. The fate of these newborns is no where explained stetrical procedure for intrauterine death after twenty-two weeks."

Aborting America, p. 210 I I I r 87 This is all medical nonsense. There is no accepted ob 16 The first wave of state legislation occurred between the January 1973 Roe and Doe decisions and the July 1976 Planned Parenthood v. Danforth decision.

Despite the chilling effect on possible state legislation that was the result of the Court's 1973 decisions, many states decided to make the attempt a ddressed was that of requiring a woman to get the consent of her husband or the father of the child before an abortion 1976 twelve states had enacted such requirements. By the same date, twenty states had enacted laws specifically requiring minor females, still living with their parents, to obtain parental consent before undergoing an abortion enacted laws requiring that the husband or parent be notified before abortion. These laws were passed specifically regarding the abortion procedure: Before July 1976 there was not a state in the union that allowed a girl, still under the care and protec tion of her parents, to undergo an operation or operative procedure without her parents' consent. The other thirty states assumed that such longstanding laws were suff i cient to cover the abortion procedure Since the Court found such an emphatic, sweeping right to abortion residing in women, the question of whether doctors nurses and hospitals could be required to perform or provide abortions became an immediate concern o f the states One of the first issues to be By July An additional two states By July 1976, thirty states had enacted "conscience clauses relieving individuals and institutions of any liability for refusing to perform or participate in abortions did not mak e any distinction between public, private, or religious hospitals. Eight af the statutes, however, were limited to private and/or religious hospitals. In addition, thirty-one states passed statutes protecting the rights of physicians and other medical pers o nnel to refuse to participate in abortions for Iflife and health" reasons throughout the entire nine months of pregnancy, the question of whether the states had any rights to protect late-term unborn children arose. By July 1976, laws requiring fetal prot e ction measures had been adopted in a total of twenty-two states experimentations on aborted fetuses, but only six of those twelve limited such restriction to live-born babies. Fourteen of the twenty-two states passed laws requiring abortionists to take me asures to preserve the lives of fetuses aborted after viability.

And four more states required abortionists to give sustenance to babies who had survived the abortion procedure Most of these statutes With the Supreme Court sanctioning abortion after viabil ity Twelve of those states restricted scientific The lower courts began to act to enforce and establish the high court's new right.881n California, a state court of appeals held on April 11, 1973, that a state statute that prohibited 88. People v. Orser. 1 7 the advertising or publication of information on how and where to obtain an abortion was an unconstitutional violation of freedom of speech.because it did not take into account that the Supreme Court had madeagost abortions legal. At the same time, a fe deral district court overturned the longstanding federal statute pro hibiting sending information on abortions through the mail. The reasoning was the same.

Some governors tried to prevent state legislators from passing laws dealing with abortions. As note d earlier, in the summer of 1974 the governors of Massachusetts and Pennsylvania both vetoed bills providing for fetal protection, spousal and parental protection, and conscientious refusal. The vetoes were overridden by resounding margins: Massachusetts voted 197-13 in the House and 30-3 in the Senate to override while Pennsylvania voted 41-8 in the Senate and 157-37 in the House to override.

In October 1973, the Supreme Court followed its Roe and Doe decisions by letting stand without comment a U.S. Court of Appeals ruling that a municipal hospital may not constitutionally prohibit the use of its facilities for nontherapeutic abortioga. In Lo u isiana State Board of Medical Examiners v. Guste, the high court, ruling that its Roe and Doe decisions applied retroactive ly, prohibited the Louisiana State Board of Medical Examiners from suspending the licengf of a doctor accused of performing an ille gal abortion in 19

69. Additionally a federal appeals court in New York released a doctor convicted of a 1984 criminal abortion in which the mother died. In Bums v. Alcale the Court decided that unborn children were not dependent children within the meanin g of the Social Securi-ty Act and that states participat ing in the Aid to Families with Dependent Children were not required to pay benefits to pregnant women for their unborn children.

The lower federal courts did not look favorably on the states' attem pts to legislate in any way concerning abortion. In the three years after the Roe and Doe decisions, major decisions of lower federal courts repealed parental and/or spousal consent requirements in Colorado, Florida, Kentucky, Indiana, Massachusetts Minne sota, Missouri, Nebraska, and Pennsylvania. These decisions chilled the initiative of other states in enacting such laws.

State laws enabling hospitals to decline to perform abortions were also declared invalid by federal courts in Arizona, Kentucky and Mi nnesota. Additionally, federal courts ordered individual public hospitals to perform abortions after these hospitals had declared policies against performance of abortions. This happened 89. Atlanta Cooperative News Project v. U.S. Postal Service 90. Janu ary 13, 1975 I i I I I I i 91 92. March 18, 1975.

May 9,-1974 Preiser v; Williams. 18 in Massachusetts, Nebraska, Wisconsin, the District of Columbia Virginia and MiMeSOta.

The most famous case involved Milwaukee County General Hospital, a public hospital that as a matter of policy refused to allow abortions. The physician staff of the hospital also refused. Interested parties went to court to get the policy ruled invalid. The issue lasted more than two years and involved seven court decisions in which th e Wisconsin state courts suppor ted the hospital's decision while the lower federal courts and the U.S. Supreme Court ruled it invalid. At one stage, a federal district judge threatened the staff of the hospital and county officials with fines if they did not relent. Only when the hospital hired a doctor who, on his own initiative, performed an abortion did the issue become partially resolved national and other private hospitals to perform abortions.

Federal district courts in Oregon, New Jersey, Texas, Mon tana and West Virginia all ruled that even though such non-publicly owned hospitals had received federal assistance of one kind or another, they could still refuse abortions. To head off such suits Congress passed a law to allow private hospitals receivin g money from the federal government to refuse to perform abortions on religious or moral grounds mounted but failed in the Ninth Federal Court of Appeals A number of suits were brought seeking to force both denomi A constitutional challengG3was State statu t es designed to force abortionists to protect late-term fetuses were also struck down in Rhode Island, Minnesota Missouri, and Pennsylvania. The issue concerned the definition of viability and whether a state could force an abortionist to make a decision w h ether a.fetus scheduled to be aborted could survive outside the womb, albeit with artificial means SPOUSAL ANb PARENTAL CONSENT; ABORTIONS IN LATE-TERM PREGNANCIES IngitS next major abortion case, Planned Parenthood v.Danforth 1976 the Court began to elab o rate about how absolute the 93. Chrisman v. Sisters of St. Joseph of Peace 94. 428 U.S 52. A majority of the Court, Blackmun, Brennan, Marshall Stewart and Powell, voted to strike down the Missouri law. Blackmun wrote the opinion of the Court but was join e d in his opinion by Brennan and Marshall only. Stewart, joined by Powell, wrote a separate concurring opinion. As has been the pattern in the Court's decisions, Stewart agreed with the result but not with the reasons. White, joined by Burger and Rehnquist , concurred in part but dissented on the grounds that the spousal consent, parental consent, and prohibition of saline amniocentesis provisions of the Missouri law were all valid. Stevens, concurred in part, but dissented on the grounds that the spousal an d parental consent provisions'were valid I 19 right to abortion was intended to be. Missouri had passed a sweeping abortion control act designed to regulate abortion as much as possible under the Roe and Doe decisions. The new statute was challenged three days later in federal-district court by Planned Parenthood and two physicians who performed abortions.

There was no female plaintiff. Both the federal district court and the federal circuit court of appeals summarily declared the act unconstitutional.

The Supreme Court ruled that while it was acceptable for the state of Missouri to require a woman's written consent before an abortion, the guarantees outlined in Roe and Eisenstadt'made it unconstitutional for the state to reagire that a woman get her spous e 's consent before an abortion' The Court again reiterated its Eisenstadt dictum that marriage was an association of "indivi duals" each of whom had a right of privacy. Now, in Planned Parenthood, the Court stated that a woman could use this right against h er husband. Similarly, a minor girl could use the right of privacy against her parents; therefore, the provision of the Missouri statute requiring a minor girl to get the consent of her parents before an abortion was also unconstitutional saline amniocent e sis as an abortion method in the second trimes ter even though Missouri had found that the method was.deleterious to the mother's health. The Court concluded that since saline amniocentesis was the most.common method of abortion after the first twelve wee k s of pregnancy, its proscription would in effect proscribe abortion itself during the second and third trimesters The Court said &bat Missouri could not prohibit the use of Finally the Court concluded that a provision of the Missouri statute rqquiring a p h ysician to use as much care to preserve the life and health of a fetus intended to be aborted as a physician would do "to preserve the 145e and health of any fetus intended to be born and not aborted" vas impermissible because it required the physician to !'preserve the li& and health sf the fetus whatever the stage of pregnancy. If Roe decision mandated that a state could take an interest in the life and health of the fetus only after viability, that is, after the second trimester The Court stated that it s 99 In a companion case decided the same day, Singleton v. Wulff the Court turned down, on procedural grounds, an attempt by two 95. at 70-71 96. Section 9 of the Act described saline amnocentesis as an abortion method whereby "the amniotic fluid is withd r awn and a saline or other fluid is artificially inducing labor." Cited at 87 inserted into the amniotic sac for the purpose of killing the fetus and 97. at 82. 98. at 83 99. 428 U.S.106. 20 Missouri phys,icians to get the Court to say that the Constitutio n demanded that public monies be available for Medicaid abortions v. Baird, the Court, again on procedural grounds, declined to rule on the constitutionality of a Massachusetts statute of 1974 similar to the Missouri statute, requiring parental consent bef ore minors could receive abortions. Baird, the winner of the Eisenstadt case, as previously noted, now owned an abortion clinic and sought to get the parental consent provision overturned.

The Court hinted that it might accept some kind of restriction on t he access of minor females to abortion and thus might accept some legislative attempt to put abortion on the same footing as all other operations performed on minor females The constitu- tional issue cannot now be defined, however, for the degree of disti n ction between the consent procedure for abortions and the consent procedure for other medical procedures cannot be estab lished until f& nature of the consent required for abortions is established In sf&bl another companion case of the same day, Bellotti P UBLIC FUNDING OF ABORTIONS 103 In two companion cases, Beal v. Doe lo2 and Maher v. Roe both decided on June 20, 1977, the Supreme Court held that neither Title XIX of the Social Security Act nor the Equal Protection Clause of the Fourteenth Amendment req u ired individual states to pay for the non-therapeutic abortions of indigent women under the Medicaid program by Congress before abortion was legal in the United States and that, therefore, the Title could not possibly be construed as mandating abortion fu n ding. From a constitutional view, poverty was not a llsuspect categoryll that denied indigent women the equal protection of the laws In both cases, the Court concluded that Ifunnecessary,lf l1non-therapeuticlf abortions need not be funded under state Medi caid plans The Court reasoned that Title XIX was passed But the Court opined that Title XIX might require the 100. 428U.S.132 101. at 150 102. 432 U.S. 438 103. 432 U.S. 4

64. For both the Maher and Beal decisions, Powell delivered the opinion of the Court in which Burger, Stewart, White, Rehnquist, and Stevens joined.

Dissenting in Maher, Brennan, writing for himself, Marshall, and Blackmun claimed that the Court had overturned its Roe decision same group in Beal, Brennan claimed that the Court had also o verturned its Doe decision. In separate angry dissents to both decisions, Blackmun and Marshall each agreed that the majority had repealed the Roe and Doe decisions and added that it had also repealed the Constitution itself Blackmun, Marshall, and Brenna n dissented in both cases.

Writing for the 21 funding of I1necessary1l lo4 abortions, thus setting the stage for future cases retreat from its wide-open "life and health" indications for Inecessaryll abortions as outlined in Roe v. Wade and Doe v. Bolton.

Thus the Court left open the possibility that it would, in the future, affirm that since these life and health" indications are necessary if a woman and her physician agree that they are neces sary, therefore, both the state and federal governments are ob liged to fund such abortions under Medicaid This possibility has now been seized upon by a federal district court judge, John Dooling, who on January 15 of this year ruled that all legislative restrictions on public fundings of abortions were unconstituti o nal since any abortion was Ilnecessary that a woman claimed was necessary. McRae et al. v. Califano argument that a state must fund abortions if it funds childbirth And the court gave no indication that it would Finally in both cases the Court rejected th e "equal protection1 VIABILITY AND LATE-TERM PREGNANCIES In Colautti v. Franklin (January 9, 1979 lo5 the high court took on a comprehensive Pennsylvania statute, the major purpose of which was to provide as much protection as possible to the unborn in the latter stage of pregnancy passed by the legislature in 1974 over the governor's veto.

Under the statute, a physician was required to make a determination of whether a fetus slated for abortion was viable or not-viable.

If "based on his experience, judgme nt, or professional competence he determined that the fetus was viable or may be" viable, he was required to exercise the same concern for the fetus life and health" as helrjguld for a fetus at the same gestational age slated for birth The statute had bee n The Court. said that 'these provisions were vague :and ambiguous and therefore void the gestational stage at which a fetus is potentially able live outsid'e the mother's womb, albeit with artificial aid."

Up to the point of viability the womanls and phys ician's judgment were supreme and absolute although as has already been shown the Court also extended that absoluteness to the "life and health of the woman1' exceptions by way of Ilappropriate medical judgment."

Nevertheless, the Roe Court recognized a state interest in the life of the fetus after viability and a limitation on the suprema cy of medical judgment The decision vindicates the right of the In Roe the Court had defined viability as 1

04. Beal at 444 105. 439U.S. 3

79. Blackmun delivered the opinion of the Court, in which Brennan, Marshall, Stewart, Powell, and Stevens joined. White wrote a dissenting opinion in which Burger and Rehnquist joined. 1

06. Statute cited at 380, 381 107. at 163. physician to administer medical treatment according t o his profes sional judgment up to the points where important state interests provide compelling justifications for intervention. Up to these points the abortion decisons in all its aspects is inherently and primarily a medical decisipB8 and basic respons i bility for it must rest with the physician Thus, by its logic, the court seemed to say that, after viability, the physician's role could be qualified by a state role definition of viability, to wit, "that stage of fetal development when the life of the un b orn child may be continued indefinitely outside tPggwomb by natural or artificial life-supportive systems I compatible with the Roe definition of viability, one of the reasons being that Missouri's viability definition was less inclusive continued indefin itely outside the womb being stricter than Ilpotentially able to live outside the mother's womb." But, the Court said that the determination of viability must be flexible and was ''a matte;llJor the judgement of the responsible attending physician.

With bo th the Roe and Planned Parenthood decisions in mind the Pennsylvania legislature attempted to take the Court at its word that a state could intervene in the abortion decision after viability (roughly, the third trimester of pregnancy). The statute did not proscribe abortion at all at any'time during pregnancy but merely stated a physician should try to preserve the life of the fetus, and choose an appropriate life-protective abortion technique when he aborted after viability. And the determination of viabi lity was to be left up to his judgment. Stated in another way, Pennsylvania'declared that a woman in the latter stages of pregnancy did not have a right to a dead fetus but only a right to have that fetus removed from her body.

The Court neatly' sidesteppe d this latter question by assert ing that the statute was too ambiguous and vague to allow an abortionist to understand it. Since there was a criminal penalty for violations, the Court decided that the statute subjected abortionists to too much risk of in terpretation. Most of the Court's opinion was a long semantic discussion about the--clarity and meaning of different words and clauses of the statute.

In dissent, Justice White, writing for himself, Justice Burger, and Justice Rehnquist, called the decisio n "incredible" and accused the Court of mounting a "determined attack on the Pennsylvania statute by withdrawing from the states a substan tial measure of the power to protect fetal life that was reserved In Planned Parenthood v. Danforth, the Court appro ved Missouri's The Court said that such a definition was completely 1

08. Roe at 165, 166 109. m. v. Danforth 428 U.S. at 63 1

10. P.P. v.Danforth at 64 23 11 111 to them in Roe v. Wade and Planned Parenthood v. Danforth.

White maintained that both the Pennsylvania statute and the Missouri statute of the Planned Parenthood case strictly adhered to the original viability guidelines set down in Roe PARENTS, CHILDREN, JUDGES, AND ABORTION Ofl,July,2 1979, a final decison was handed down in Bellotti v Baird, which had come back to the Court from Massachusetts.

By a 8-1 vote the Court ruled unconstitutional a statute that had been carefully crafted to win Supreme Court approval. The law passed and passed again over the governor' s veto in 1974, had been enjoined by a federal district court even before it went into, effect, subsequently ruled unconstitutional, reviewed and sent back to the district court by the Supreme Court with instruc tions to allow the Supreme Judicial Court o f Massachusetts to rule, upheld by the Massachusetts court, immediately ruled uncon stitutional again by the same federal district court, and then passed back to the Supreme Court could obtain an abortion. But, failing that, the minor female was allowed to seek the approval of a court if she could prove I'good cause, which was not defined, and therefore presumably was as unrestricted as the Illife and health of the mother stan dards as laid out in Roe v. Wade and Doe v. Bolton The law required parental cons e nt before a minor female In considering the status of parents in society, the Court extolled parents at great length, even going so far as to admit that the "child is not the mere creature of the state; those who nurture him and direct his destiny have th e right, coupled with the higPlguty, to recognize and prepare him for additional obliga- tions. I 111. at 401, 407, 4

08. Concerning the Colautti decision, Nathanson observed that, "All of this reinforced my prior conviction that the court propped up its a bortion policy on an impossibly vague and unstable concept viability any future law written to protect 'viable' fetuses may be struck down because it, too, is vague, as any law or any Supreme Court decision on viability must be 112. 99 S. Ct. 30

35. The C ourt overturned the Massachusetts law by a 8-1 vote but was divided into separate four-man factions as to the reason. By 1970, the abortion right had been so well established by the Court that there was no longer any need to base the decision on any claus e s of the Constitution. Thus, the two factions disagreed not about interpretation of clauses of the Constitution but about interpretation of the meaning of the abortion right. In dissent, White based his dissent on his previous dissent in Planned Parenthoo d v. Danforth Because of this vagueness it now appears quite likely that Aborting America, p. 209 113. at 3045 24 The position of parents over their children is !'deeply rooted in our nations's history and tradition the parental tasks of guiding children b y '!precept and example" is "beyond the competence of impersonal political institutions Moreover it is cardinal with us that the custody, care, and nurture of the child reside first in the parents, whose primary function and freedom include prfyaratioh for obligations the state can neither apply nor hinder."

Nevertheless, the traditional authority of parents over their daughters must fall because Itwe are concerned herelr&th the exercise of a constitutional right of unique character The need to preserve the constitutional right and the unique nature of the abortion decision, especially when mafg by a minor, require a State to act with particular sensitivity1 Massachusetts had not shown enough of this sensitivity about abortion.

The state's primary mistake w as to accord too much power to parents by requiring that they be notified before their daughters get abortions and before daughters have access to court. The Court warned parents that the exercise of parental influence should be in the best interests of t h eir daughter" but admitted that parents were only llnormally'l supportive of these interests while many daughters were "particularly vulnerable to their puentsil7fforts to obstruct both an abortion and their access to court. Thus, even though the Massachu s etts law allowed minor daughters to supersede their parents by going to court, it was unconstitutional to allow parents first access to influencing the decisions. The Court ratified the lower court's opinion that parental involvement was desir3ig only if ! 'the parents were compassionate and supportive three other Justices) proposed the following model statute as a substitution for that of 'Massachusetts Thus, Justice Powell, writing for the Court (but only for We conclude, therefore, that under state regul a tion such as that undertaken by Massachusetts, every minor must have the opportunity-if she so desires-to go directly to a court without first consulting or notifying her parents. If she satisfies the court that she is mature and well-informed enough to m a ke intelligently the abortion decision on her own, the court must authorize her to act without parental consultation or consent. If she fails to satisfy the court that she is 114. at 3045 114. at 3045 115. at 3052. 116. at 3047 117. at 3050, 3051. 118. at 3047 Note 20 25 competent to make this decision independently, she must be permitted to show that an abortion nevertheless would be in her best interest. If the court is persuaded that it is, the court must authorize the abortion. If however, the court is not persuaded by the minor that she is mature or that the abortion would be in her gfgt interest, it may decline to sanction the operation.

Nevertheless, this model statute cannot be considered unas sailable since the four other Justices (Brennan, Stevens , Marshall and Blackmun while agreeing that the Massachusetts law was unconstitutional; opined that neither parents nor courts had any justification for interfsEing in any way in "the right to make the abortion decision If These four Justices rejected Pow e ll's conclusion that a judge was better able to decide what was in the best interest of a minor female rather than the minor's parents because a judge's decision, like that of parents, YYYst necessari ly reflect personal and societal values and mores pres u mably, was not necessarily I'compassionate and supportive either and this Significantly, neither of the two separate four-man opinions found any need to cite the Eisenstadt or Griswold "right of privacy1' decisions nor any need to consider any clauses of the.

Constitution in their opinions. The sole concern was 'Ithe con stitutional right to decide whether of290t to terminate a pregnan cy this right of unique character" as it had been defined by the Court in Roe v. Wade, Doe v. Bolton, and Planned Parentho od v.


2. Justice White, the lone dissenter, found it "inconceiv- able" that Bellotti had anything to do with the Constitution.

Justice Rehnquist mentioned that he joined the judgment of the Court only because literally thousands of judges cannot be left with nothing more than f4~ guidance offered by a truly fragmented holding of this Court.I A COMPARISON: GERMANY THE ABORTION QUESTION IN THE HIGHEST COURT OF WEST The Americqn experience of having abortion declared as national policy by its highes t court is unique. No other country with a constitutional or parliamentary system of government has a court of highest appeals with the comprehensive policy-making powers of the U.S. Supreme Court. Since World War 11, abortion has become legal in most West e rn countries (South America excepted 119. at 3050 120. at 3054 121. at 3054 122. at 3054 123. at 3055 124. at 3053 26 but normally by legislative decision is abortion legal thoughout all nine months of pregnancy tional Court, had an opportunity to face th e issue of abortion that the Supreme Court resolved in its Roe and Doe cases. But, the circumstances surrounding the German case were vastly different In Roe, the Texas statute that had been law for over 100 years was challenged by a group of antagonists w h o were seeking a Supreme Court ruling rendering it, and the abortion laws of all 0the.r states as well, void. In June 1974, the Federal Constitu tional Court reviewed a law liberalizing abortion that had been passed by the Bundestag, the German national p a rliament. The suit was brought by 193 members of the Bundestag (about 40 percent of that body) and by four of the states of the German Federal Republic. The court, under the' German scheme of government was obliged to hear a case so brought the German cri m inal abortion statute to provide for abortion-on request through the first twelve weeks of pregnancy, and for narrow "medical and eugenic indications'' up to the twenty-second week of pregnancy, after which no abortions were permitted. The revised law inc l uded no permission for abortions for psychological or tlmentallt reasons And nowhere in the world In 1974, West Germany's highest court, the Federal Constitu The Bundestag had revised The Federal Constitutional' Court recognized legal issues different fro m the Supreme Court itself with the right of privacy of the woman the right of a doctor to practice his profession according to his own principles and the rights of states to protect the unborn. As a solution to these questions, the Supreme Court decreed t h at a woman's right to have, and a doctor's right to perform, an abortion is absolute throughout the first six months of pregnancy and absolute in fact, because of the insignificance of the qualifications in the last three months of pregnancy. The state's i nterest in what the Court called potential life" was never sufficient to abridge this solution a solution based on a woman's right of priyacy what the Bellotti Court later labeled 'la constitutional right of unique character I Article I1 of the German Con s titution (the Constitution adopted after World War 11) explicitly guarantees the right to life It begins "Each has the right to life I tional Court immediately looked to this provision for the.defini tion of the legal issue before it. But prior to interpr e ting the meaning of this constitutional provision with regard to abortion the Constitutional Court, like the Supreme Court, looked to history compelling than any in American history the Nazi regime the constitutional right to life The Supreme court concer n ed The Constitu But German history was marked by an event perhaps more the rise and fall of The Court remembered that event as the basis of The express inclusion of the right to life in the Constitution --otherwise self-evident in contrast for example to the Weimar Constitution, is to be ex- plained primarily as a reaction to the "destruction of 27 life that is not worthy of living,11 to the "final solutionll and to llliquidationsll carried out by the Nationalist Socialist regime as governmental measures.

Article 2 I1 1 of the Constitution contains, in addition to the abolition of the death penalty in Article 102, a profession of commitment to the fundamental value of human life and to a concept of the state that places it in decisive opposition to the vie ws of a political regime to which an individual life meant little and which for this reason engaged in unlimited abuse of the right it&d usurped over the life and death of the citizen.

But, in addition to this historical basis for the right to life guarant eed by the German Constitution, the Constitutional Court s$Zged that it must consider flnormslf and Itthe scales of values1' that are, in fact, pre-constitutional and pre-govern mental In opposition to the statement of the Roe Court that "We need not reso l ve the question of when.life begins,If and to its conclusion that the state might possjbly have an interest only in potential life," the German Court maintained that "this is a question of the protfs5ion of human life, a central value of every legal syste m If The Constitutional Court decided that the right to life was a right antedating any2&ounding documents of government and that it -was a 'Isubjectivell right, that is, it belonged to each individual himself. It was not a right derived from, or granted b y , government-or any institutionalized social compact The Supreme Court.did not consider whether e'ach human being has I1subjective1l rights, that is to say, natural rights. It confined itself to inquiring into what rights are expressed in and thereby prot e cted by, the Constitution and concluded that the word person as used in the Fourteenth Amendment, does not include the unborn.11 The German Court, having found that the right to life is inherent in each individual and thus pre-dates any written expression of this right, also found that the German Constitution positively and objectively guaranteed this right the norms of the Constitution- conthin not only subjective rights of defense for the individuar against the state, but in addition incorporate an objec tive system of values which stand as129funda- II mental constitutional decision for all areas of law 1

25. HLR 77-

78. The translation of the Constitutional Court's decision by Harold O.J. Brown, quoted here and below, appeared in Volume I, Number 3 (Summer 1975) of the Human Life Review (HLR to pages of that publication.

Numerical references are i 1

26. HLR, 77. 127 . m, 77 128. m, 79. 129. m. 79 28 Yet, the Supreme Court did pay important attention to what the German Court called the I'normsll upon which constituti-ons and governments are based. The Griswold Court, unable to locate the right of privacy within any sp e cific clauses of the Constitution had placed it in marriage itself, the right of privacy in marriage being Ifolder than the Bill of Rights, older than our political parties, older than our school system.Il The Eisenstadt Court withdrew the basis of the ri g ht of privacy from the marriage relationship and placed it in the individual, stating that the right of privacy was fundamental to each person, not a right granted by constitutional government the right of privacy was I1fundamental1l and "implicit in 8 th e concept of ordered liberty And this line of reasoning, labeling the right of privacy as pre-constitutional or extra-constitutional was finally consummated by the Bellotti Court which made the right super-constitutional We arel58ncerned here with a consti - tutional right of unique character Thus, overall, the Supreme Court has ruled that the right of privacy which Ifincludes the abortion decision,I' is nearly an absolute a priori American value. Justice Rehnquist, in his dissent to Roe explained the decisi on by saying that the court had promulgated the right to an abortion as Itso rooted in the traditionfgpd conscience of our people as to be ranked as fundamental."

The German Court reached the same kind of conclusion but for the sake of a different object H uman life, as it is not neces sary to demonstrate further, represents a maximum value with the constitutional order; it is the vital basis of human&gnity and the presupposition of all other fundamental rights."

The Roe Court accused the state of Texas of adopting Itone theory of life Texas urges that fe begins at conception and is present thoughout pregnancy but found itself unable to recognize any personhood or human life or even any life of any kind before birth facts of "fetal developrnent1l were Ifwel l-known, If The Roe Court states that Although the Court a9itte.d that the it was tentative 1

30. In his recent decision concluding that a woman not only has a constitutional right to an abortion but also a constitutional right to have her abortion paid fo r with public monies, Judge John J. Dooling of the U.S. District Court of the Eastern District of New York has taken the abortion right even farther: "Abortion has become a dimension of the country's social structure and legal order" (page 308); Abortion i s a "basic necessity of life" (page 314); Abortion is "a doubly protected" religious right page 328 A woman's conscientious decision, in consultation with her physician, to terminate her pregnancy because that is medically necessary to her health, is an e xercise of the most fundamental of rights, nearly allied to her right to be" (page 328 McRae et al. v. Califano, Memorandum and Order for Judgement Number 76 C 1805, January 15, 1980 1

31. Roe at 174 1

32. HLR 79 133 Roe at 159 134. at 157 29 in accepting even biological facts, saying that a pregnant woman carries an embryo and, later a fetus if one accepts thepjgdical definitions of the developing young in the human uterus.lt Emphasis added.) And the facts of biology, the Court concluded could testify on l y to the existence of Ilpotential lifeit before birth. Thus, unable to recognize the'beginning of human life We need not resolve the difficult question of when life begins the Court proved equally unable to recognize the epistence of human life alfsgdy be g un. Only life lloutside the wombIt was "meaningful, the Court seemed to imply, when it used such words in talking about the point of viability, that is, the presumed point when the potential life was capable of living outside the womb, that is to say, the point when potential life becomes life that what the Supreme Court called the llwell-known facts of fetal developmentll were highly relevant and inseparable from the right to life. To the Constitutional Court, human life was the existence of a human indiv i dual: "Life in the sense of the historical existence of a human individual exists, according to established biological and physiological facts, at all events from the .fsrr- teenth day after conception (implantation, individuation).Il And thus, the Consti t utional Court continued, this life was.meaningfu1 Where human life exists, it possesses human dignity. It is not determinative whether'the bearer of this dignity is conscious of it and knows how to preserve it himself. placed within the human b&g from the beginning suffice to In oppositon to the Supreme Court, the German Court concluded The potential abilities establish human dignity The Supreme Court divided pregnancy into trimesters;,talked about significant turning I1points,l1 especially the point of I1 v iability,l1 in pregnancy: and maintained that such considerations had legal consequences. The German Court disagreed The process of development that begins therewith is a continuous process that displays no sharp breaks and does not permit an exact delimi t ation of different levels of development of human life. Further, it is not finished with birth: for example, the specific forms of consciousness characterizing human personality make their first appearance some time after birth. For this reason, the prote c tion of Article 2 I1 1 of the Constitution can neither be limited to the "finishedtt human being after birth nor to the nasciturus indepen- dently capable of life to everyone who lllivesll no distinction can be made between stages of developing life or be tween the unborn and born life. ItEach,l1 in the sense of Article 2 I1 1 The right to life is attributed 1

35. Roe at 159 1

36. Roe at 163 1

37. HLR 78 1

38. HLR 79 30 is "each living one,It or, to put it differently, each human individual possessing li fe; therefore means also the still-unborn human being In opposition to the objection that in ordinary speech as well as in the language of law generally refers .to a I1finishedlt human person, and that therefore purely linguistic interpretations speak aga i nst including unborn life in the scope of Article 2 I1 1, we emphasize that in all events the sense and purpose of this constitutional provision require that the protection of life also be extended to developing life by the state would be incomplete if it did not also embrace the preliminary state of Ilfinished life, It unborn life The protection of human existence from excesses Unborn life is a legal entity that is to be con sidered fundamentally equivalent to born life. This conclusion is self-evident fo r the period during which the unborn life would be capable of life outside the motherls womb. However, it is also justified for the earlier period, beginning approximately fourteen days after conception, as Hinrichsen among others has convinc ingly demonst r ated in the Public Hearings It is the altogether overwhelming persuasion of medical, anthropo logical, and theological science that the whole subse quent development presents no further distinction of comparable significance For this reason it is forbidde n to negate unborn life after implantation or even merely to Consider it with indifference. For this purpose it is not necessary to answer here the question whether and in the event to what extent the Constitution takes it under its protec tion. At all eve n ts it corresponds to the general conception of justice, apart from the extreme views of individual groups, to fyeluate unborn life as a legal entity of high degree The Constitutional Court did deal with the right of privacy but, again, reached a different conclusion from the Supreme Court. Ebbling pregnancy Ira part of the woman's private sphere I the German Court recognized that abortion was a unique area of the criminal law Indubitably, the natural ties between the unborn life and that of the mother crea tes a distinc tively articulated relationshi~~for which there is no parallel in other spheres of human life I But, the Court found, the 1

39. HLR 78-79 1

40. HLR, 79 141. m, 79 31 unborn child is not !'part of the maternal organism,I' but Ira distinctive human being and thus lltermination of pregnancy becomes a social isf45, making it subject to and requiring regula- tion by the state A woman, the Court ruled, has a right "to the free development o f her personality However, this right is not accorded without limits since termination always means the destruction of unborn life the legal system may not make the woman's right of self-determination the sole legal principle of such regulation A compromi s e that preserves both the protection of life and the nasciturus (i.e., the unborn child) as well as the freedo~~gf the woman to terminate her pregnancy is not possible. It any kind of compromise between rights right to life, only vaguely recognized that t h e cbld in the womb was even alive, and at any rate only l1meaningfull1 when it had the chance to live outside the womb, the Court had only the rights of women with which to contend. And this right of womanly privacy was conclusive and definitive since, as both Justices Blackmun and Douglas listed at such great length, there were many compel- ling reasons based on the self-interest of the woman to support it The Supreme Court, of course, was not attempting to reach Since it recognized no Since Itno distinct i on can be made betrggn stages of develop ing life or between unborn and born life abortion in the first three months of pregnancy was unconstitu tional, the Couf&5concluded The termination of pregnancy is an act of killing1 law. It was the duty of the nat i onal legislature to prescribe the penalties for this crime, the Court added, but, in certain unique'and rare cases, the legislature might establish less severe penalties for women who aborted their children. "In all other cases, the termi'nation of pregna n cy remains punishable injustice for in such cases the destruction of a legal value of the highest degree is'subject to the frpg6choice of another party, not motivated by any necessity.It tion of pregnancy must be clearly expressed avoid the false impressi o n that the termination of pregnancy is the same sort of social action as going to a physician to be healed of a sickness or even that it is a legally indifferent alternative to contraception it is evident that we cannot refrain from a clear legal designat i on of this procedure as linjusticel The protection of human existence from exces,ses by the state would be incomplete if it did not also embrace the preliminary stage of 'finished life unborn life The gross the law legalizing and must be prohibited and pu nished by the Overall In the legal system, disapproval of the termina It is necessary to 1

42. HTA, 80 1

43. E, 80 144. m 78 1

45. HLR, 81 146 84. 32 balancing of life against life, which leads to accepting the destruction of the supposedly lesser number in the interest of preservation of the supposedly greater number, cannot be reconciled with the duty of the individual protection of each single, cofgfete life This understanding of justice underlies this draft."

Thomas R. Ascik Policy Analyst 147 HLR, 78, 80, 82, 85.


Thomas R.

Senior Visiting Fellow