NetNews Usenet Archive 1992 #18/NN_1992_18.iso/spool/talk/abortion/31521

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From: [e-mail] (J. S. Greenfield)
Subject: The facts about Roe, Doe, and Colautti (was Roe is abortion-on-demand)
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Organization: Syracuse University, CIS Dept.
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Date: Wed, 12 Aug 92 23:57:27 EDT
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Recently Doug Holtsinger renewed his claims that Roe v. Wade
and Doe v. Bolton, together, establish abortion on demand,
through the full term of a pregnancy, due to the discussion
of "health" contained within Doe v. Bolton. To support this
claim, he cited Colautti v. Franklin as a precedent which
supported this interpretation.

On the basis of this claim, I have undertaken to further
research this matter.  As it turns out, not only does
Colautti v. Franklin fail to support Mr. Holtsinger's
claims--the court opinion in the case specifically *rejects*
the idea that abortion on demand is a protected right
through the full term of a pregnancy.

As a result, it is apparent that I was incorrect in my
earlier claim that no court precedent had either supported
or rejected the claims made by Mr. Holtsinger (and others).
In fact, the Supreme Court *has* rejected the claims made by
Mr. Holtsinger.

In a nutshell, Roe v. Wade establishes that, through the
first trimester, abortion on demand *is* a woman's right.
As such, any restrictions applied during the first trimester
must be sufficiently broad so as not to infringe upon that
right.  After the fetus reaches viability (approx.
corresponding to the third trimester), a state's interest in
protecting the life and health of the viable fetus is
sufficient to warrant restrictions on, and even prohibition
of, abortion, except in cases where the life or health of
the mother is seriously threatened.

Doe v. Bolton involved a Georgia abortion statute that, in
essence, put severe restrictions on abortion, but did
include an exception based upon preserving the health of the
mother.  The statute did not make any distinction between
pre- and post-viability abortions.  In its opinion, the SC
ruled that the use of the term "health," within the *Georgia
statute*, could be interpreted broadly enough to comply with
the first trimester rights recognized in Roe.  (Several
other restrictions in the Georgia statute were found to be
unconstitutional.)

Doe v. Bolton, specifically, did *not* discuss, suggest or
intend that the interpretation of the term "health" in the
context of the Georgia statute was to be used as the
interpretation of "health" with respect to the exceptions
required by Roe for post-viability abortion prohibitions.

Colautti v. Franklin is a case primarily involving the power
of a state to establish a definition of fetal viability.
Some tangential discussion of the term "health" is included,
but the court opinion specifically rejects the idea that
there is an absolute right to abortion on demand.

These facts absolutely contradict Mr. Holtsinger's claims.

In fact, while Mr. Holtsinger has claimed that my earlier
post suggested that Roe and Doe were inconsistent, it is his
*own* argument that actually suggests this, by suggesting
the Roe's extensive framework, distinguishing between the
first, second, and third stages of pregnancy, was overruled
by the companion Doe decision handed down at the same time.
This simply makes no logical sense, and is not supported by
the facts.


What follows is an extended summary of the relevant material
I gathered, and includes excerpts from and references to
several sources regarding the legal aspects of abortion.
(Warning, it is very long--approx. 3500 words.)

All of the sources were found at the Syracuse University Law
Library.


I have no doubt that the following summary will have
absolutely no effect upon Mr. Holtsinger's understanding of
the law regarding abortion, since I am already convinced
that he has no real interest in any scholarly examination of
the questions involved.

I hope, however, that the following summary, will be of
interest to *somebody* out there, and will help to eliminate
the confusion that Mr. Holtsinger and others are trying to
propagate.

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

Sources:

[1] D. Drucker, "Abortion Decisions of the Supreme Court,
1973 through 1989," (1990).

[2] A. Flemming et al, "Constitutional Aspects of the Right
to Limit Childbearing,"  A Report of the US Commission on
Civil Rights (1975).

[3] S. Goldman, "Constitutional Law: Cases and Essays,"
(1987).

[4] S. Krason, "Abortion: Politics, Morality, and the
Constitution," (1984).

[5] L. Wardle, "The Abortion Privacy Doctrine: A Compendium
and Critique of Federal Court Abortion Cases," (1981).

(Note that for this discussion, [2] and [3], which do not
discuss the issues relevant to this matter, have been used
solely as sources for the actual court opinions in Doe v.
Bolton, and Roe v. Wade, respectively.)


All excerpts are reprinted without permission.  (With luck,
they will fall under "Fair Use" provisions...)


From the court opinion (delivered by Justice Blackmun) in
Roe v. Wade (reprinted in [3]):

"...If the State is interested in protecting fetal life
after viability, it may go so far as to proscribe abortion
during that period except when it is necessary to preserve
the life or health of the mother...."

"To summarize and to repeat:

"1. A state criminal abortion statute of the current Texas
type, that excepts from criminality only a life saving
procedure on behalf of the mother, without regard to
pregnancy state and without recognition of the other
interests involved, is violative of the Due Process Clause
of the Fourteenth Amendment.

"(a) For the stage prior to approximately the end of the
first trimester, 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.

"(c) 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."

"...The decision leaves the State free to place increasing
restrictions on abortion as the period of pregnancy
lengthens, so long as those restrictions are tailored to
recognize state interests.  The decision vindicates the
right of the physician to administer medical treatment
according to his professional judgment up to the points
where important state interests provide compelling
justifications for intervention.  Up to those points, the
abortion decision in all its aspects is inherently, and
primarily, a medical decision, and basic responsibility for
it must rest with the physician.  If an individual
practitioner abuses the privilege of exercising proper
medical judgment, the usual remedies, judicial and intra-
professional, are available...."

(The latter note was in reference to the claims, even at the
time of Roe, that there were widespread examples of
abortionist physicians who served no interest other than
their own financial interest to perform albums.)

As such, Roe v. Wade clearly establishes that a woman's
right to an abortion is dependent upon the stage of the
pregnancy.  The states are, clearly, allowed to enact
restrictions, and even prohibitions under Roe,
contrary to the claim that Roe requires "abortion on demand"
at any time
"up to the moment of birth."  Had Roe truly required
abortion on demand throughout the entire pregnancy, it is
incomprehensible why the court would have been so precise in
distinguishing the state's differing rights during different
stages of pregnancy.

The companion case of Roe, Doe v. Bolton, supported the
decision of Roe (and the court opinion was also written by
Blackmun).  This fact is best expressed by Chief Justice
Burger, in a concurring opinion (reprinted in [2]):

"I do not read the Court's holdings today as having the
sweeping consequences attributed to them by the dissenting
Justices; the dissenting views discount the reality that the
vast majority of physicians observe the standards of their
profession, and act only on a basis of carefully deliberated
medical judgments relating to life and health.  Plainly the
Court today rejects any claim that the Constitution requires
abortion on demand."


and by Justice Blackmun's court opinion in Colautti v.
Franklin (paraphrased excerpt taken from [1]):

"It was during the litigation of Doe v. Bolton that the
Court stressed the importance of allowing the physician
absolute control in exercising his best medical judgment,
and the Court emphasized the fact that although women do
have a right to have an abortion, the right is not absolute
and is not extended to women who want an abortion upon
demand."


The following excerpt from Justice Blackmun's court opinion
in Doe represents the entire discussion of the "health"
issue on which Mr. Holtsinger's argument rests (taken from
the reprint in [3]--note that Doe challenged the health
exception in the Georgia statute on the grounds that it was
unconstitutionally vague):

"The vagueness argument is set at rest by the decision in
United States v. Vuitch, 402 U. S. 62, 71-72 (1971), where
the issue was raised with respect to a District of Columbia
statute making abortions criminal 'unless the same were done
as necessary for the preservation of the mother's life or
health and under the direction of a competent licensed
practitioner of medicine.'  That statute has been construed
to bear upon psychological as well as physical well-being.
That being so, the Court concluded that the term 'health'
presented no problem of vagueness.  'Indeed, whether a
particular operation is necessary for a patient's physical
or mental health is a judgment that physicians are obviously
called upon to make routinely whenever surgery is
considered."  Id., at 72.  This conclusion is equally
applicable here.  Whether, in the words of the Georgia
statute, 'an abortion is necessary' is a professional
judgment that the Georgia physician will be called upon to
make routinely.

"We agree with the District Court, 319 F. Supp., at 1058,
that the medical judgment may be exercised in the light of
all factors--physical, emotional, psychological, familial,
and the woman's age--relevant to the well-being of the
patient.  All these factors may relate to health.  This
allows the physician the room he needs to make his best
medical judgment.  And it is room that operates for the
benefit, not the disadvantage, of the pregnant woman."


The distinction between the discussion of "health" in the
context of the Georgia statute of Doe v. Bolton and the Roe
requirement for exceptions "for the preservation of the life
or health of the mother" during the post-viability stage of
pregnancy is clarified by the analysis of [5].

"...the Roe model focuses on different 'health'
considerations in each of its three stages.  The
distinctions between the different 'health' concerns
associated with the three stages of the Roe model must be
given special emphasis because under Roe these distinctions
are of constitutional significance.  It is especially
important to recognize the distinctions between the 'health'
exceptions of the first and third stage abortion regulation
model....  The mandatory 'life or health' exception, which
must apply to allow abortion even after viability, when the
state has a compelling reason to restrict abortion, must not
be confused with the 'health' conditions which may justify a
'medical judgment' authorizing an abortion on demand during
the first trimester.[footnote32]"

[footnote32]: "In Roe the Court clearly declared that during
the first trimester, the state must allow abortion whenever
a woman wants one and a doctor is willing to perform it.
Another way to describe this rule, in terms familiar in
traditional abortion law, is that the state may prohibit
abortions generally, but it must provide an exception
permitting first-trimester abortions necessary for 'health'
reasons--with the 'health' exception defined so as to permit
abortion on demand.  This is the approach suggested by Doe,
and it is this little fiction (allowing all factors
justifying first trimester abortion on demand to come under
the label of 'health') that has precipitated unnecessary
confusion about the scope of the mandatory post-viability
exception for *bona fide* 'life or health' preserving
abortions."

"In Roe v. Wade, the Court first applied its mandatory first
trimester 'health exception rule (abortion on demand) to
invalidate a state criminal abortion law.  ...Texas had
prohibited all abortions except those performed on medical
advice 'for the purpose of saving the life of the mother.'
410 U. S. at 119.  The Texas statute failed to take note of
the stage of pregnancy, and of less-than-life-threatening
health risks.  Both of these defects were identified by the
Court as requiring the invalidation of the statutes. [sic]
Id. at 164.  Thus, the first-trimester health exception was
one of the necessary constitutional requirements which the
Texas law failed to satisfy."

"Although the Roe discussion of first-trimester abortion on
demand reveals the temperament of the Court, statements made
in the abstract are never as helpful as analysis made in the
course of applying a rule to the concrete facts of a
specific case.  Thus, there has been some discussion in
subsequent court cases of the precise scope and extent of
the mandatory 'health' exception to first trimester abortion
restrictions.

"The leading case to illustrate and apply the Roe
requirement that first-trimester abortions must be left
unrestricted by criminal laws to the unqualified 'medical
judgment' of the pregnant woman's physician is Doe v.
Bolton, the companion case of Roe.  The Georgia criminal
abortion laws challenged in Doe (based on the Model Penal
Code) prohibited all abortions except those performed by a
licensed physician who determined, "based upon his best
clinical judgment,' that an abortion was 'necessary' because
the pregnancy (1) presented the risk of a serious and
permanent injury to the mother's health, (2) resulted from
felonious intercourse, or (3) was likely to produce a
mentally or physically defective offspring.  410 U.S. at 183
n.3.  A three judge district court held that the state could
not limit the reasons for which an abortion could be legally
performed and the part of the statute limiting abortions to
those done for the three noted reasons was invalidate; but
the remainder of the statute was left intact.  Doe v.
Bolton, 318 F.Supp. 1048 (N.D. Ga. 1970).  Thus modified,
the Georgia law prohibited all abortions except those
performed by a licensed physician who determined that 'based
upon his best clinical judgment...an abortion is necessary.'

"On appeal to the Supreme Court, the appellants argued that
the law thus remaining was unconstitutionally vague because
'the word "necessary" [did] not warn the physician of what
conduct [was] proscribed; that the statute [was] wholly
without objective standards and [was] subject to diverse
interpretations; and that doctors [would] choose to err on
the side of caution and [would] be arbitrary.' 410 U.S. at
191.  The Supreme Court rejected the arguments citing United
States v. Vuitch, 402 U.S. 62(1971), wherein the District of
Columbia criminal abortion statute prohibiting all abortions
except those 'done as necessary for the preservation of the
mother's life or health' had been found unconstitutionally
vague.  The surviving portion of the Georgia statute only
called for the exercise of 'medical judgment' by the
physician. [footnote 36]"

[footnote 36]: "While the Court in both Doe and Roe noted
that the judgment to be exercised was a 'medical judgment,'
yet in the same sentence, the Court listed a number of *non-
medical* factors which could be considered by a doctor
exercising such 'medical judgment.'  This apparent
inconsistency is resolved when one recognizes that such a
judgment based upon such non-medical considerations is a
'medical judgment' in the sense that it is a judgment made
by a medical professional."

"It is apparent that the Court in Doe did not intend to
limit the considerations of physicians under the Georgia law
to the parameter of physical well-being; that is foreclosed
by the reference to Vuitch.  And the specific inclusion of
other non-'health' considerations (e.g., 'familial')
together with and in addition to the specific reference to
'psychological' considerations (the Vuitch addition to the
traditional health considerations) indicates that the Court
intended to go beyond Vuitch in its definition of the
legitimate 'health' factors which could justify abortion
under the Georgia law.  Clearly, then, the Court gave a very
expansive interpretation to the implied 'health' exception
to the Georgia abortion prohibition statute.  Indeed, since
the Court permitted a doctor to recommend abortion for any
reason whatever, it authorized abortion on demand.

"Since the Georgia law applied during all stages of
pregnancy, the implied 'health' exception, if it were to
save the statute, had to be interpreted broadly enough to
satisfy the command in Roe that during the *first trimester*
the abortion decision be left unrestricted by state criminal
prohibitions.  That is, the implied 'health' exception tot
he Georgia criminal abortion prohibition was defined by the
Court in the context of possible application of the statute
to first trimester abortions.  (And this broad
interpretation of 'health' occurs in the context of
interpreting the Georgia statute, *not* in the course of
defining the scope of any constitutionally-mandated health
exception.)  Thus, while Doe suggests the extent of the
first trimester 'health' exception, it certainly is not
indicative of the scope of the 'health' considerations
applicable in the other stages of pregnancy (e.g., the post-
viability 'life or health' exception)."


[5] also offers some additional criticism and  analysis of
the first- and third-trimester 'health' distinction:

"It is unfortunate (if understandable) that the Court in Roe
and Doe resorted tot he fiction that, during the first
trimester, it was only requiring states to permit the
abortion for 'health' reasons when, as everyone realized, it
really meant that during the first trimester the states must
allow abortion on demand...It is unequivocally clear that
prior to viability the state may not restrict the abortion
*decision*, i.e., it may not restrict the reasons for which
abortions may be legally permitted.

"The problem with the Court's little fiction about first-
trimester 'health' abortions is that it has unnecessarily
confused the scope of post-viability abortions that must be
permitted.  There, the Court used 'health' in its genuine,
medical sense, but the first-trimester 'health' fiction
lurks like a fog in the background.  Yet, if the Court did
create the potential for semantic confusion, to date it has
assiduously adhered to the conceptual distinction between
first-trimester abortion-on-demand (for fictitious 'health'
reasons) and the post-viability genuine medical necessity
exception (for genuine 'health' preserving abortions).
Unfortunately some commentators and lower courts have not
been so careful.

"The analytical soundness of reading Roe and Doe as
requiring a post-viability 'life or health' exception with
an expansive interpretation of 'health' is highly
questionable.  A broad interpretation of this exception
would be inconsistent with the deliberate balancing of
interests that is at the heart of the Roe analysis, and
would disregard the fundamental distinctions between the
'health' concepts associated with the three stages of the
Roe model [footnote 44]  The 'health' conditions which
constitutionally justify an abortion on demand during the
first trimester are unquestionably much broader than the
'health' conditions which constitute the mandatory post-
viability 'life or health' exception."

[footnote 44]: "Writing in Colautti v. Franklin Justice
Blackmun indicated this when he summarized the Roe decision
noting that '*up to*
the points where important state interests provide
compelling justifications for intervention [e.g., the second
and third stages of pregnancy], 'the abortion decision in
all its aspects is inherently, and primarily, a medical
decision'...."

"In short, an expansive reading of the post-viability 'life
or health' suggestion is logically indefensible and is
analytically inconsistent with the Roe model of abortion
regulation."


Finally, we reach the question of how the case of Colautti
v. Franklin (which involved a Pennsylvania abortion statute)
reflects upon the question of the meaning of the term
'health.'  As mentioned previously, we note that the Court
opinion in Colautti specifically rejects the idea that Roe
or Doe provides an unrestricted right to abortion on demand.
Since Mr. Holtsinger's argument suggests the exact opposite,
his argument is clearly wrong.

We additionally note that even [4]--a work subtitled "A
critical Study of ROE v. WADE, and DOE v. BOLTON and a Basis
for Change" (i.e., the entire several hundred page book is
devoted to the analysis Roe v. Wade, and includes an
argument essentially the same as that of Mr. Holtsinger),
and written by an individual so biased towards the pro-life
position that he argues that not only is Roe unsupported by
the constitution, but rather, the constitution *requires* a
prohibition against abortion--does not cite Colautti as
reflecting upon the question of 'health.'

Finally, we excerpt a relevant portion of the analysis of
[5]:

"In its discussion of the problems with this part of Section
Five the Court noted:

   And 'the life or health of the mother', as used in
   Section 5(a), has not been construed by the courts of
   the Commonwealth nor does it necessarily imply, that
   all factors relevant to the welfare of the woman may
   be taken into account by the physician in making his
   decision.  C.f. United States v. Vuitch, 402 U.S. at
   71-72, 91 S.Ct., at 1298-1299; Doe v. Bolton, 410 U.S.
   at 191, 93 S.Ct. at 747.

439 U.S. at 400.  At first glance this passage might appear
to suggest that the Pennsylvania statute was defective
because it did not permit post-viability abortions for all
reasons suggested in the Doe description of permissive
'health' justifications for first-trimester abortion.  But a
closer examination dispels this false impression.  First,
the page in Doe cited only contains a discussion of the
meaning of the word 'necessary' in the Georgia statute; the
listing of non-medical 'health' factors was noted on
*another* page of the opinion which was *not* cited.
Second, the Court in Doe did not consider the scope of post-
viability 'health' consideration.  Since the reference in
Colautti to Doe is preceded by the well-known 'C.F.' signal,
which means that the case cited supports a different but
analogous position, [footnote 46] it is obvious that the
Colautti Court recognized the distinction between Doe's
discussion of first trimester 'health' considerations and
the post-viability context of the statute it had under
consideration.  Third, a reading of the 'life or health'
exception to post-viability abortions in terms of the same
broad 'health' considerations applicable in the first
trimester would, of course, result in abortion on demand and
effectively overrule Roe.  But, in Colautti, the Court twice
explicitly reaffirmed Roe, 439 U.S. at 388, 393 n.11., and
specifically reiterated Roe's declaration that a woman's
right to choose abortion 'is not absolute or unqualified',
and that the state has a compelling interest to 'even
prohibit abortion' after viability. Id. at 386, 387.  Thus,
any suggestion that the reference to Doe in Colautti means
that the post-viability 'life or health' exception must be
given a broad first-trimester Doe-type 'health'
interpretation is erroneous."

[footnote 46]: "A Uniform System of Citation 7 (12th ed.
1976)."

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


That's about all I can stand to put down.  I think it should
be sufficiently clear that Mr. Holtsinger's arguments
regarding the interpretation of Roe, Doe and Colautti are
simply not supported by the facts.


--
J. S. Greenfield                                         [e-mail]
(I like to put 'greeny' here,
but my d*mn system wants a
*real* name!)                        "What's the difference between an orange?"