QUOTE(sandra6645 @ Jul 17 2005, 12:06 PM)
...
...i'm actually shocked...wow. And wtf is roe v bla bla? if it's an american thing then...sorry...i'm not american.
Your sitting here and going on about how abortion is not acceptable and you don't even know what Roe v. Wade is. It's the case that lead the legalization of Abortion.
In Roe v. Wade, the U. S. Supreme Court determined that the Constitution protects a woman's decision whether or not to terminate her pregnancy. 1 In a companion case, Doe v. Bolton, the Court held further that a state may not unduly burden a woman's fundamental right to abortion by prohibiting or substantially limiting access to the means of effectuating her decision. 2 Rather than settle the issue, the Court's decisions kindled heated debate and precipitated a variety of governmental actions at the national, state and local levels designed either to nullify the rulings or hinder their effectuation. These governmental regulations have, in turn, spawned further litigation in which resulting judicial refinements in the law have been no more successful in dampening the controversy.
I. Development and Status of the Law Prior to 1973 The law with respect to abortion in mid-19th century America followed existing common law of England in all but a few states. 4 Thus, no indictment would occur for aborting a fetus of a consenting female prior to "quickening." But, by the time of the Civil War, an influential anti-abortion movement began to affect legislation by inducing states to add to or revise their statutes in order to prohibit abortion at all stages of gestation. By 1910, every state had anti-abortion laws, except Kentucky whose courts judicially declared abortions to be illegal. In 1967, forty-nine states and the District of Columbia classified the crime of abortion as a felony. The concept of "quickening" was no longer used to determine criminal liability but was retained in some states to set punishment. Nontherapeutic abortions were essentially unlawful. The states varied in their exceptions for therapeutic abortions. Forty-two states permitted abortions only if necessary to save the life of the mother. Other states allowed abortion to save a woman from "serious permanent bodily injury" or her "life and health." Three states allowed abortions that were not "unlawfully performed" or that were not "without lawful justification", leaving interpretation of those standards to the courts.
This, however, represented the high water mark in restrictive abortion laws in the United States, for 1967 saw the first victory of an abortion reform movement with the passage of liberalizing legislation in Colorado. The movement had started in the early 1950s and centered its efforts on a proposed criminal abortion statute developed by the American Law Institute as part of its Model Penal Code that would allow abortions when childbirth posed grave danger to the physical or mental health of a woman, when there was high likelihood of fetal abnormality, or when pregnancy resulted from rape or incest.
Between 1967 and the Supreme Court's 1973 decisions in Roe and Doe, approximately one-third of the states had adopted, either in whole or in part, the Model Penal Code's provisions allowing abortions in instances other than where only the mother's life was in danger. Also, by the end of 1970, four states (Alaska, Hawaii, New York, and Washington) had repealed criminal penalties for abortions performed in early pregnancy by a licensed physician, subject to stated procedural and health requirements.
The first U. S. Supreme Court decision dealing with abortion was rendered in 1971. In United States v. Vuitch, the Court denied a vagueness challenge to the District of Columbia abortion statute. 5 The net effect of the Vuitch decision was to expand the availability of abortions under the D. C. law's provision allowing abortions where "necessary for the preservation of the mother's... health."
II. The Supreme Court's 1973 Abortion Rulings Between 1968 and 1972, the constitutionality of restrictive abortion statutes of many states was challenged on the grounds of vagueness, violation of the fundamental right of privacy, and denial of equal protection. These challenges met with mixed success in the lower courts. However, in 1973, the Supreme Court issued its rulings in Roe v. Wade and Doe v. Bolton. In those cases the Court found that Texas and Georgia statutes regulating abortion interfered to an unconstitutional extent with a woman's right to decide whether to terminate her pregnancy. The Texas statute forbade all abortions not necessary "for the purpose of saving the life of the mother." The Georgia enactment permitted abortions when continued pregnancy seriously threatened the woman's life or health, when the fetus was very likely to have severe birth defects, or when the pregnancy resulted from rape. The Georgia statute required, however, that abortions be performed only at accredited hospitals and only after approval by a hospital committee and two consulting physicians.
The Court's decisions were delivered by Justice Blackmun for himself and six other Justices. Justices White and Rehnquist dissented. The Court ruled that states may not categorically proscribe abortions by making their performance a crime, and that states may not make abortions unnecessarily difficult to obtain by prescribing elaborate procedural guidelines. The constitutional basis for the decisions rested upon the conclusion that the Fourteenth Amendment right of personal privacy embraced a woman's decision whether to carry a pregnancy to term. The Court noted that its prior decisions had "found at least the roots of...[ a] guarantee of personal privacy" in various amendments to the Constitution or their penumbras (i. e., protected offshoots) and characterized the right to privacy as grounded in "the Fourteenth Amendment's concept of personal liberty and restrictions upon State action." 6 Regarding the scope of that right, the Court stated that it included "only personal rights that can be deemed 'fundamental' or 'implicit in the concept of ordered liberty'" and "bears some extension to activities related to marriage, procreation, contraception, family relationship, and child rearing and education." 7 Such a right, the Court concluded, "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." 8
With respect to protection of the right against state interference, the Court held that since the right of personal privacy is a fundamental right, only a "compelling state interest" could justify its limitation by a state. Thus while it recognized the legitimacy of the state interest in protecting maternal health and the preservation of the fetus' potential life, and the existence of a rational connection between these two interests and the state's anti-abortion law, the Court held these interests insufficient to justify an absolute ban on abortions. 9 Instead, the Court emphasized the durational nature of pregnancy and held the state's interests to be sufficiently compelling to permit curtailment or prohibition of abortion only during specified stages of pregnancy. The High Court concluded that until the end of the first trimester, an abortion is no more dangerous to maternal health than childbirth itself, and found that: "[ W] ith respect to the State's important and legitimate interest in the health of the mother, the 'compelling' point, in light of present medical knowledge, is at approximately the end of the first trimester." 10 Only after the first trimester does the state's interest in protecting maternal health provide a sufficient basis to justify state regulation of abortion, and then only to protect this interest. 11
The "compelling" point with respect to the state's interest in the potential life of the fetus "is at viability." Following viability, the state's interest permits it to regulate and even proscribe an abortion except when necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. 12 The Court defined viability as the point at which the fetus is "potentially able to live outside the mother's womb, albeit with artificial aid." 13 It summarized its holding as follows:
(a) For the stage prior to approximately the end of the first trimester [of pregnancy], the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician. (b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
© For the stage subsequent to viability, the State, in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. 14
In Doe, the Court reiterated its holding in Roe that the basic decision of when an abortion is proper rests with the pregnant mother and her physician, but extended Roe by warning that just as states may not prevent abortion by making their performance a crime, states may not make abortions unreasonably difficult to obtain by prescribing elaborate procedural barriers. In Doe, the Court struck down state requirements that abortions be performed in licensed hospitals; that abortions be approved beforehand by a hospital committee; and that two physicians concur in the abortion decision. 15 The Court appeared to note, however, that this would not apply to a statute that protected the religious or moral beliefs of denominational hospitals and their employees. 16
The Court in Roe also dealt with the question whether a fetus is a person and thereby protected under the Fourteenth Amendment and other provisions of the Constitution. The Court indicated that the Constitution never specifically defines, "person," but added that in nearly all the sections where the word person appears, "the use of the word is such that it has application only post-natally. None indicates with any assurance, that it has any possible pre-natal application." 17 The Court emphasized that, given the fact that in the major part of the 19th century prevailing legal abortion practices were far freer than today, the Court was persuaded "that the word 'person, ' as used in the Fourteenth Amendment, does not include the unborn." 18
The Court did not, however, resolve the question of when life actually begins. While noting the divergence of thinking on this issue, it instead articulated the legal concept of "viability," defined as the point at which the fetus is potentially able to live outside the womb, although the fetus may require artificial aid. 19 Many other questions were also not addressed in Roe and Doe, but instead formed the grist for a burgeoning book of post-Roe litigation.
III. Public Funding of Abortions Two categories of public funding cases have been heard and decided by the Supreme Court: those involving (1) funding restrictions for nontherapeutic (elective) abortions; and (2) funding limitations for therapeutic (medically necessary) abortions.
(1) The 1977 Trilogy --Restrictions on Public Funding of Nontherapeutic or Elective Abortions
The Supreme Court, in three related decisions, ruled on the question whether the Medicaid statute or the Constitution requires public funding of nontherapeutic (elective) abortions for indigent women or access to public facilities for the performance of such abortions. 20 The Court held that the states have neither a statutory nor a constitutional obligation in this regard.
In Beal v. Doe, the Court held that nothing in the language or legislative history of Title XIX of the Social Security Act (Medicaid) requires a participating state to fund every medical procedure falling within the delineated categories of medical care. The Court ruled that it was not inconsistent with the Act's goals to refuse to fund unnecessary medical services. However, the Court did indicate that Title XIX left a state free to include coverage for nontherapeutic abortions should it choose to do so. Similarly, in Maher v. Roe, the Court held that the Equal Protection Clause of the U. S. Constitution does not require a state participating in the Medicaid program to pay expenses incident to nontherapeutic abortions simply because the state has made a policy choice to pay expenses incident to childbirth. More particularly, Connecticut's policy of favoring childbirth over abortion was held not to impinge upon the fundamental right of privacy recognized in Roe, which protects a woman from undue interference in her decision to terminate a pregnancy. Finally, in Poelker v. Doe, the Court upheld a municipal regulation that denied indigent pregnant women nontherapeutic abortions at public hospitals. It also held that staffing those hospitals with personnel opposed to the performance of abortions did not violate the Equal Protection Clause of the Constitution. Poelker, however, did not deal with the question of private hospitals and their authority to prohibit abortion services.
(2) Public Funding of Therapeutic or Medically Necessary Abortions The 1977 Supreme Court decisions left open the question whether Federal law, such as the Hyde Amendment, or similar state laws, could validly prohibit governmental funding of therapeutic abortions.
The Court ruled 5-4 that the Hyde Amendment's abortion funding restrictions were constitutional. The majority found that the Hyde Amendment neither violated the Due Process or Equal Protection guarantees of the Fifth Amendment nor the Establishment [of religion] Clause of the First Amendment. The Court also upheld the right of a state participating in the Medicaid program to fund only those medically necessary abortions for which it received Federal reimbursement. 21 In companion cases raising similar issues, the Court held that a State of Illinois statutory funding restriction comparable to the Federal Hyde Amendment also did not contravene the constitutional restrictions of the Equal Protection Clause of the Fourteenth Amendment. 22 The Court's rulings mean there is no statutory or constitutional obligation of the states or the Federal Government to fund all medically necessary abortions.
IV. Supreme Court Decisions Subsequent to Roe and Doe Involving the Substantive Right to Abortion
Informed Consent/ Waiting Periods. In Planned Parenthood v. Danforth, the Court held that informed consent statutes, which require a doctor to obtain the written consent of a woman after informing her of the dangers of abortion and possible alternatives, are constitutional if the requirements are related to maternal health and are not overbearing. 23 The fact that the informed consent laws must define their requirements very narrowly in order to be constitutional was later confirmed the Supreme Court in 1979. 24 The requirements of an informed consent statute must also be narrowly drawn so as not to unduly interfere with the physician-patient relationship, although the type of information required to be given to a woman of necessity may vary according to the trimester of her pregnancy.
In City of Akron v. Akron Center for Reproductive Health, Inc., along with various other provisions, the Court struck down the informed written consent section of the ordinance. 25 This provision required that the attending doctor inform the woman "of the status of her pregnancy, the development of her fetus, the date of possible viability, the physical and emotional complications that may result from an abortion, and the availability of agencies to provide her with assistance and information with respect to birth control, adoption, and childbirth." 26 The attending physician was also required to tell the patient of the risks involved and any other information which in the physician's medical judgment would be critical to her decision of whether to terminate the pregnancy. The Court found this informed consent requirement to be constitutionally unacceptable because it essentially gave the government unreviewable authority over what information was to be given a woman before she decided whether to have an abortion. It was also objectionable because it intruded upon the discretion of the pregnant woman's doctor. 27
The Supreme Court also invalidated the 24-hour waiting period, holding that the City of Akron had not shown that any legitimate state interest was being served "by an arbitrary and inflexible waiting period."
Spousal/ Parental Consent. In addition to informed consent, the Court in Danforth, found that spousal consent statutes, which require a written statement by the father of the fetus affirming his consent to the abortion, are unconstitutional if the statutes allow the husband to unilaterally prohibit the abortion in the first trimester. It should be noted that on the same day that the Supreme Court decided Danforth, it also summarily affirmed the lower court decision in Coe v. Gerstein, which held unconstitutional a spousal consent law regardless of the stage of the woman's pregnancy. 28
With respect to parental consent statutes, the Supreme Court held in Danforth that statutes which allow a parent or guardian to absolutely prohibit an abortion to be performed on a minor child were unconstitutional. Subsequently, in Bellotti v. Baird, the Court ruled that while a state may require a minor to obtain parental consent, it must also provide an alternative procedure to procure authorization if parental consent is denied or the minor does not want to seek it. 29 Bellotti thus entitles a minor to some proceeding which allows her to prove her ability to make an informed decision independent of her parents or, even if she is incapable of making the decision, at least showing that the abortion would be in her best interests.
In City of Akron, the Court invalidated the provision in the Akron ordinance which prohibited a doctor from performing an abortion on an unemancipated minor unless the doctor obtained "the informed written consent of one of her parents or her legal guardian" or unless the minor herself obtained "an order from a court having jurisdiction over her that her abortion be performed or induced." 30 The Court relied on its earlier rulings in Danforth and Bellotti to conclude that the City of Akron could "not make a blanket determination that all minors under the age of 15 are too immature to make this decision or that an abortion never may be in the minor's best interests without parental approval." 31 Moreover, the Akron ordinance's provision concerning parental approval did not create expressly the alternative judicial procedure required by Bellotti. Thus, the ordinance's consent provision had to fall because it foreclosed any possibility for "case-by-case evaluations of the maturity of pregnant minors." 32
In Planned Parenthood Association of Kansas City, Missouri Inc. v. Ashcroft, the Supreme Court upheld Missouri's parental consent requirement. 33 It distinguished the provision involved here from that challenged in City of Akron. The Missouri requirement, unlike the Akron one, did provide an alternative procedure by which a pregnant immature minor could show in court that she was sufficiently mature to make the abortion decision herself or that, despite her immaturity, an abortion would in her best interests.
Parental Notification. In 1981, the Court upheld a Utah state law making it a crime for doctors to perform an abortion on an unemancipated, dependent minor without notifying her parents. In H. L. v. Matheson, a 6-3 decision, the Court examined the narrow question of the facial constitutionality of a statute requiring a physician to give notice to parents, "if possible," prior to performing an abortion on their minor daughter: (a) when the girl is living with and dependent upon her parents; (b) when she is not emancipated by marriage or otherwise; and © when she has made no claim or showing as to her maturity or as to her relationship with her parents. 34 The Supreme Court cited the interest in preserving family integrity and protecting adolescents in allowing states to require that parents be informed that their daughter is seeking an abortion, and emphasized that the statute in question did not give a veto power over the minor's abortion decision. The Court rejected the minor woman's contention that abortion was being singled out for special treatment in contrast to other surgical procedures, like childbirth, which do not require parental notice.
In 1987, an equally divided Supreme Court, without opinion, let stand a 7th Circuit Court of Appeals decision invalidating an Illinois law that required teenagers to notify their parents prior to obtaining an abortion. 35 The tie vote meant that the ruling set no nationwide precedent. There are other states with parental notification laws similar to the one in Illinois.
During its October 1989 Term, the Court decided two cases involving challenges to the constitutionality of state parental notification laws. 36 In the Minnesota case, the Court held 5 to 4 that a state requirement for notice to be given to both parents prior to a minor's having an abortion was unconstitutional unless the state legislature provided for an alternative hearing in court, i. e., a judicial bypass procedure.
The Court ruled 6 to 3 in the Ohio case that Ohio's law requiring notice to one parent with a judicial bypass option was constitutional. Justice Kennedy wrote the opinion for the majority. Both the Minnesota and Ohio decisions have been viewed as consistent with the Court's prior rulings concerning parental consent requirements for minors.
