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- Xref: sparky talk.abortion:33910 alt.politics.clinton:3417 alt.politics.bush:3391
- Path: sparky!uunet!stanford.edu!rutgers!rochester!cantaloupe.srv.cs.cmu.edu!garvin
- From: garvin+@cs.cmu.edu (Susan Garvin)
- Newsgroups: talk.abortion,alt.politics.clinton,alt.politics.bush
- Subject: Re: Roe v. Wade permits the purposeful killing of viable fetuses
- Keywords: From: decay@
- Message-ID: <BtpyxD.5Mx.2@cs.cmu.edu>
- Date: 29 Aug 92 00:34:25 GMT
- References: <1992Aug20.210023.11560@noao.edu> <1992Aug27.234035.23177@csus.edu> <1992Aug28.195734.19979@ncsu.edu>
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- Followup-To: talk.abortion
- Organization: School of Computer Science, Carnegie Mellon
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-
- In article <1992Aug28.195734.19979@ncsu.edu> dsholtsi@csl36h.csl.ncsu.edu (Doug Holtsinger) writes:
-
- [text deleted]
-
- #However in Colautti v. Franklin, the Supreme Court ruled that
- #the state may NOT require the physician to employ the abortion
- #technique which is "best for the fetus", even if the technique
- #would not increase the risks to the mother.
-
- Those of you familiar with Holtsinger's standard method of deleting
- the text which disagrees with his premise will not be surprised
- to learn that he's done it again.
-
- # --------------------
- #
- # Colautti v. Franklin, 439 U.S. 400,401 (1979)
-
- If you're trying to look up his cite, be advised that this quote
- begins on page 397, not 400.
-
- # We also conclude that the standard-of-care provision of 5(a) [of the
- # Pennsylvania abortion statute] is impermissibly vague. The standard-
- # of-care provision, when it applies, requires the physician to
- #
- # ``exercise that degree of professional skill, care and diligence
- # to preserve the life and health of the fetus which such person
- # would be required to exercise in order to preserve the life and
- # health of any fetus intended to be born and not aborted and the
- # abortion technique employed shall be that which would provide
- # the best opportunity for the fetus to be aborted alive so long
- # as a different technique would not be necessary in order to
- # preserve the life or health of the mother.''
-
- Here, Holtsinger deleted a discussion of the various abortion
- techniques that were used in the second and third trimester at
- the time of the decision. The deleted section reviews testimony
- from physicians about the method of choice if saline induction
- was not allowed. (Since saline induction almost always is
- fatal to the fetus, it would presumably have been banned under
- the statute.) Quoting from the text, "Preferences ranged from
- no abortion, to prostaglandin infusion, to hysterotomy, to
- oxytocin induction."
-
- The section goes on to discuss the risks associated with
- hysterotomy (reactions to anesthesia, problems associated
- with any abdominal suregery, and the belief at the time
- that all future children would require C-section births),
- and prostaglandin infusion (vomiting, nausea, headache,
- and diarrhea, and that prostaglanding are contraindicated
- for women with a history of glaucoma, asthma, hypertension,
- cardiovascular disease, or epilepsy). It also cites
- testimony from the physician who recommended oxytocin.
- "He doubted, however, whether the procedure would be fully
- effective in all cases, and he indicated that the procedure
- was prolonged and expensive."
-
- Holtsinger's quote, from page 400, follows this discussion:
-
- # ...
- #
- # The statute does not clearly specify, as appellants imply, that the
- # woman's life and health must always prevail over the fetus' life
- # and health when they conflict. The woman's life and health are not
- # mentioned in the first part of the state stated standard of care,
- # which sets forth the general duty to the viable fetus; they are
- # mentioned only in the second part which deals with the choice of
- # abortion procedures. Moreover, the second part of the standard directs
- # the physician to employ the abortion technique best suited to fetal
- # survival ``so long as a different technique would not be *necessary*
- # in order to preserve the life or health of the mother'' (emphasis
- # supplied). In this context, the word ``necessary'' suggests that
- # a particular technique must be indispensable to the woman's life or
- # health--not merely desirable--before it may be adopted. And the
- # ``life or health of the mother,'' as used in 5(a) [of the Pennsylvania
- # abortion statute], has not been construed by the Courts of the
- # Commonwealth to mean, not does it necessarily imply, that all factors
- # relevant to the welfare of the woman may be taken into account by
- # the physician in making his decision. Cf. United States v. Vuitch,
- # 402 U.S., at 71-72; Doe v. Bolton, 410 U.S., at 191."
- #
- # --------------------
-
- Holtsinger deleted the conclusion, as well.
-
- "Consequently, it is uncertain whether the staute permits
- the physician to consider his duty to the patient to be paramount
- to his duty to the fetus, or whether it requires the physician
- to make a 'trade-off' between the woman's health and additional
- percentage points of fetal survival. Serious ethical and
- constitutional difficulties, that we do not address, lurk
- behind this ambiguity. We hold only that where conflicting duties
- of this magnitude are involved, the State, at the least, must
- proceed with greater precision before it may subject a physician
- to possible criminal sanctions."
-
-
- This paragraph highlights the fact that the statute was overturned
- for vagueness, not for some "right to a dead fetus" as Holtsinger
- implies. I can understand his reluctance to quote it, and the
- following paragraph, given his false claims.
-
- "Appellants' further suggestion that 5(a) requires
- only that the physician make a good-faith selection of the
- proper abortion procedure finds no support in either the
- language or an authoritative interpretation of the statute.
- Certainly, there is nothing to suggest a *mens rea*
- requirement with respect to a decision whether a particular
- abortion technique is necessary to preserve the life
- or health of the woman. The choice of an appropriate
- abortion technique, as the record in this case so amply
- demonstrates, is a complex medical judgment about which experts
- can - and do - disagree. The lack of any scienter requirement
- exacerbates the uncertainty of the statute. We conclude
- that the standard-of-care provision, like the viability-
- determination requirement, is void for vagueness."
-
-
- Susan
-