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Published online by Cambridge University Press: 24 February 2021
Women who wish to terminate a pregnancy, and physicians willing to perform abortions, are subject to increasing harassment from groups which challenge the constitutional abortion right upheld by the Supreme Court in Roe v. Wade. Their vulnerability, in fact, parallels the vulnerability of the aboriton right. This Article analyzes the inherent weakness and impending obsolescence of the trimester framework established in Roe. Present medical evidence of maternal health risks and fetal viability demonstrates that the trimester framework is inconsistent with current medical knowledge, and will likely be rendered obsolete by developments in medical technology. The Article suggests that adoption of an alternative constitutional basis for legal abortion is necessary to preserve the abortion right, and explores the utility of two arguments grounded in the equal protection doctrine. Finally, it discusses means of preserving legal abortion within the confines of the trimester framework established in Roe v. Wade.
The author wishes to acknowledge Judith Areen, Professor of Law, Professor of Community and Family Medicine, Georgetown University, for guidance in the planning of this paper.
1 Zintl, New Heal Over an Old Issue, TIME, Feb. 4, 1985, at 17. Portions of the documentary THE SILENT SCREAM were aired on networks across the nation. In the film, a leading obstetrician, Bernard Nathanson, shows by the use of ultrasound a fetus apparently shrinking from an abortionist's suction instrument, and opening its mouth in a “silent scream.” Critics claim that it is Nathanson's melodramatic language, and not the pictures, that gives the film its sensationalistic appeal. Id.; McGrory, Relentless Pro-Lifers, Wash. Post, Jan. 27, 1985, at CI, col. 1 & C5, col. 4-6. McGrory concludes:
[t]he antiabortionists compare themselves to the abolitionists, possessors of a cause with an absolute moral imperative… . They do not mind being called extremists. They know their tactics repel even those who agree with them. They do not c a r e …. They know they are faulted because they focus so obsessively on the child in the womb and have so little to say for the child in need. They have heard Barney Frank's famous barb about the administration's concern for children — ‘Begins with conception, ends with birth.'
Id.
As well as increasing hostile picketing, the pro-life movement recently has added civil disobedience tactics to its protest strategy. The New Pro-life Offensive, TIME, Sept. 12, 1988, at 25; 503 Held in Abortion Protest on E. 85th St., N.Y. Times, May 3, 1988, at Bl, col. 2; see also Carlson, Please Don't Kill your Baby, Wash. Post, Mar. 20, 1988 (Magazine) at 24. In 1985, antiabortion protesters bombed abortions clinics and used other intimidation tactics which bordered on terrorism. Mann, Time to End Terrorism, Washington Post, Jan. 25, 1985, at B3, col. 5, 6; Magmuson, Explosions Over Abortion, TIME 16, 17 (Jan. 14, 1985). (Abortion clinic patients “have been pushed away from entrances for ‘sidewalk counseling’ that often involves showing them photographs of nearly full term fetuses,” id., and make them listen to recorded cries of infants. Tires of cars at the clinics have been slashed and car windows broken. The license plates of cars leaving the clinics have been recorded, and menacing calls made to the owners. Most disturbing is the fact that some protesters have entered the clinics and, pretending to be patients who have changed their minds about abortion, berate pregnant women within the clinics and try to destroy equipment while patients are being treated. Id.;
2 410 U.S. 113 (1973).
3 462 U.S. 416(1983).
4 Id.at 458 (O'Connor, J., dissenting).
5 Id.at 456-57 (emphasis omitted); see Wallis, Abortion, Ethics and the Law, TIME 82-83 (July 6, 1987). The author notes: “[t]he framework of Roe v. Wade makes jurisprudence dependent on technological developments. If the moment of viability is pushed back much further toward conception, the state's right to limit abortions will gradually increase.” Wallis, supra at 82.
6 Akron, 462 U.S. at 454; see Rhoden, The New Neonatal Dilemma: Live Births from Late Abortions, 72 GEO. L.J. 1451 (1984). In response to Justice O'Connor's dissent in Akron, Nancy Rhoden frames the issue:
[i]f the reason that states can prohibit abortion after a certain time is that the fetus is viable, then logically abortions can be prohibited at increasingly earlier stages of gestation. This may soon clash, though, with the principle that when abortion is safer than childbirth, it must be permitted. If current medical trends continue, the dichotomous result may occur that during one time period, abortion will be safer than childbirth, and therefore not subject to significant state regulation under the Roe framework, yet the fetus also will be viable, with the consequence under Roe that states could proscribe abortions not necessary to preserve the woman's life or health.
Rhoden, supra, at 1491.
7 Roe, 410 U.S. at 153. Concluding that the right of privacy included the abortion decision, the Court stated that the right was “not unqualified and must be considered against important state interests in regulation.” Id. at 154.
8 Id. at 162.
9 Id. Identifying the state's interests in maternal health and potential life, the Court Noted.
“[t]hese interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes ‘compelling.’ “
Id. at 162-63.
10 Id. at 163.
11 Id. The Court concluded:
[u]ntil the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health… [F]or the period of pregnancy prior to this “compelling” point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated.
Id. Ten years later, faced with contrary medical evidence of the relative mortality rates of abortion and childbirth, the Court nevertheless reaffirmed the first trimester cut-off point in Roe. City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983); see infra notes 35-38 and 45-47 and accompanying text.
12 Roe, 410 U.S. 163. 13 Id. at 163-64. 14 Id. at 160-63.
15 Id. at 164-65.
16 Id. at 165-66.
17 410 U.S. 179(1973).
18 Id. at 190-92.
19 Id. at 192. The Court stated that the definition of “health” provided the physician with “the room he needfed] to make his best medical judgment.” Id.; but see Rhoden, Trimesters and Technology: Revamping Roe v. Wade, 95 YALE L.J. 639, 685 (1986).
20 428 U.S. 52 (1976).
21 Id. at 63-65.
22 Id. The Court stated, “[w]e recognized in Roe that viability was a matter of medical judgment, skill, and technical ability, and we preserved the flexibility of the term.” Id. at 64.
23 Id. The Court concluded:
[I]t is not the proper function of the legislature or the courts to place viability, which essentially is a medical concept, at a specific point in the gestation period. The time when viability is achieved may vary with each pregnancy, and the determination of whether a particular fetus is viable is, and must be, a matter for the judgment of the responsible attending physician.
Id.
24 Id. at 82.
25 Id. at 83.
25 439U.S. 379 (1979).
27 Id. at 382. The Court determined that “[t]he crucial point is that ‘viable’ and ‘may be viable’ apparently refer to distinct conditions, and that one of these conditions differs in some indeterminate way from the definition of viability as set forth in Roe and in Planned Parenthood.” 439 U.S. at 393.
28 Id. at 388-89. The Court concluded:
[v]iability is reached when, in the judgment of the attending physician on the particular facts of the case before him, there is a reasonable likelihood of the fetus’ sustained survival outside the womb, with or without artificial support. Because this point may differ with each pregnancy, neither the legislature nor the courts may proclaim one of the elements entering into the ascertainment of viability … . Viability is the critical point. And we have recognized no attempt to stretch the point of viability one way or the other.
Id.
29 Id. at 397.
30 Id. at 400. The Court reasoned that “it [was] uncertain whether the [challenged] statute permitted] the physician to consider his duty to the [mother] to be paramount to his duty to the fetus, or whether [the statute] require[d] the physician to make a ‘trade-off’ between the woman's health and additional percentage points of fetal survival.” Id. The Court held where conflicting duties of such magnitude were involved, the state was obligated to proceed with greater precision in enacting regulations. Id. at 400-01.
31 462 U.S. 416 (1983).
32 410 U.S. 113 (1973).
33 Akron, 462 U.S. at 428-29.
34 Id. at 434. The Court noted, “[t]he existence of a compelling state interest in health, however, is only the beginning of the inquiry.” Id.
35 Id.
36 Id.
37 Id. The Court determined that the state retained an interest in ensuring the validity of the Roe assumption that first trimester abortion was as safe as normal childbirth, a factual assumption which held true only if first trimester abortion was performed by a physician under conditions insuring maximum safety for the mother. Id. at 430 n.12.
38 Id. at 437.
39 Id. at 434-39. The Court stated that by prohibiting the performance of dilatation and evacuation abortions in an appropriate nonhospital setting, “Akron has imposed a heavy, and unnecessary, burden on women's access to a relatively inexpensive, otherwise accessible, and safe abortion procedure.” Id. at 438.
40 Id. at 438-39.
41 Id. at 429 n.11.
The Court concluded: Roe identified the end of the first trimester as the compelling point because until that time—according to the medical literature available in 1973—“mortality in abortion may be less than mortality in normal childbirth” (citing Roe). There is substantial evidence that developments in the past decade … have extended the period in which abortions are safer than childbirth (citing medical evidence that abortion may be safer than childbirth up to week 16). We think it prudent, however, to retain Roe's identification of the beginning of the second trimester as the approximate time at which the State's interest in maternal health becomes sufficiently compelling to justify significant regulation of abortion.
Id.
42 410 U.S. 113, 149 (1973).
43 Akron, 462 U.S. at 429 n. ll. The Court concluded:
[t]he Roe trimester standard … continues to provide a reasonable legal framework for limiting a State's authority to regulate abortions. Where the State adopts a health regulation governing the performance of abortions during the second trimester, the determinative question should be whether there is a reasonable medical basis for the regulation. The comparison between abortion and childbirth mortality rates may be relevant only where the State employs a health rationale as a justification for a complete prohibition on abortions in certain circumstances.
Id. (citation omitted).
44 Id.
45 Id.
46 Id. at 459.
47 462 U.S. 476(1983).
48 462 U.S. 506 (1983).
49 See infra notes 277-81 and accompanying text.
50 Ashcroft, 462 U.S. at 482-86.
51 Id, at 485.
52 Id.
53 462 U.S. 506, 519 (1983).
54 Id.
55 Id.. (citing Roe v. Wade, 410 U.S. 113, 150 (1973)).
56 See A. Cox, THE ROLE OF THE SUPREME COURT IN AMERICAN GOVERNMENT 113-14 (1976). Professor Cox's criticism of Roe is that the Court failed to lift the decision above the level of a political judgment based upon current scientific evidence. In his judgment, the majority opinion reads like a set of hospital regulations, the validity of which will be destroyed with new evidence of the medical risks of abortion and childbirth, or technological changes in the onset of fetal viability. Id.
57 Roe v. Wade, 410 U.S. 113, 163 (1973); see supra notes 11-15 and accompanying text.
58 Id. at 163.
59 Id. at 160; see supra notes 12-15 and accompanying text.
60 Cates, Legal Abortion: the Public Health Record, 215 SCIENCE 1586 (1982). Cates noted an interesting phenomenon: if legal abortions were replacing term births, the mortality of abortion should have increased relative to deaths from other pregnancy-related causes, while instead, the opposite result occurred. Id. at 1586.
61 Id. Cates found that the death-to-case ratio for legal abortion has declined. Id.
62 R. WYNN, OBSTETRICS AND GYNECOLOGY 361-62 (3d ed. 1983). In 1980, approximately 25 percent of all pregnancies, or 50 percent of all that were unintended, were terminated by abortion. The legalization of abortion has resulted in more abortions being performed earlier in pregnancy. Abortions which are performed earlier are associated with a lower maternal risk. Id.
63 Tietze, Induced Abortion, in OBSTETRICAL EPIDEMIOLOGY 319, 345 (S. Barron & A. Thomson eds. 1983).
64 Id.; see infra note 66 (maternal mortality attributed to abortion varies with gestational age).
65 Id.; see also Augensen & Bergsi, Abortion Mortality, 144 AM. J. OBSTET. & GYNECOL. 740 (correspondence, 1982).
66 Grimes, Cates, Smith & Rochat, Mortality from Abortion and Childbirth, 249 J.A.M.A. 194 (letters, 1983).
67 Id. 68 LeBoIt, Grimes & Cates, Mortality from Abortion and Childbirth: Are the Populations Comparable?, 248J.A.M.A. 188, 191 (1982).
69 Cates & Grimes, Morbidity and Mortality of Abortion in the United States, in ABORTION AND STERILIZATION 155, 170-71 (J. Hodgson ed. 1981); see W. HERN, ABORTION PRACTICE 1-17 (1984).
70 LeBolt, Grimes & Cates, supra note 68, at 191.
71 Cates, Smith, Rochat & Grimes, Mortality from Abortion and Childbirth: Are the Statistics Biased?, 248J.A.M.A. 192, 192 (1982).
72 Id. at 196. The authors concluded that current comparisons of abortion and childbirth mortality were biased in a direction opposite to that alleged, in that the statistics spuriously favored the safety of childbirth rather than that of abortion. Id. at 192.
73 Cates, supra note 60, at 1587; see also R. WYNN, supra note 62, at 362 (risk of death increases as pregnancy progresses and is greater in women whose pregnancies are unwanted).
74 Cates, supra note 60, at 1587. Cates suggested that “[pjossible mechanisms for the poorer obstetric outcomes associated with unwanted pregnancies include a direct, stress-mediated influence on catecholamines, [minimal] concern by the woman for proper prenatal care, and differences in clinical management of labor and delivery.” Id.
75 Cates, SchUlz & Grimes, The Risks Associated with Teenage Abortion, 309 NEW ENG. J. MED. 621, 623 (1983). The authors reported that if a teenage girl chooses to abort her pregnancy, she is at no higher risk than an older woman of having a serious complication, and she is at a lower risk of death. Id. at 624; see also Cates, Abortion for Teenagers, in ABORTION AND STERILIZATION, supra note 69, at 139, 146.
76 See generally Hern, Epidemiologic Foundations of Abortion Practice, in ABORTION PRACTICE, supra note 69, at 101-252 (1984); GYNECOLOGY & OBSTETRICS (J. Sciarra ed. 1982).
77 Postcoital methods are procedures performed after intercourse up to the time of the expected onset of the menstrual period. Menstrual regulation, also referred to as menstrual extraction, endometrial aspiration or mini-abortion, includes procedures performed no later than two weeks following the expected onset of a menstrual period. Edelman & Berger, Menstrual Regulation, in ABORTION AND STERILIZATION, supra note 69, at 209.
78 Hodgson, Abortion by Vacuum Aspiration, in ABORTION AND STERILIZATION, supra note 69, at 225, 229.
79 Id. After 14 weeks of pregnancy, vacuum aspiration must be supplemented by the use of forceps and sharp curettage for removal of fetal parts. Id. at 239.
80 Hodgson, Late Midtrimester Abortion, in ABORTION AND STERILIZATION, supra note 69, at 297.
81 Id.
82 Stubblefield, Midtrimester Abortion by Curettage Procedures: An Overview, in ABORTION AND STERILIZATION, supra note 69, at 277. Instillation of hypertonic saline into the amniotic sac is the most commonly used procedure for terminating late second trimester pregnancies. Kerenyi, Intraamniotic Techniques, in ABORTION AND STERILIZATION, supra note 69, at 359, 360. The mechanism by which saline induces abortion is still debated by investigators. 85 Kereny, Intraamniotic Techniques, in ABORTION AND STERILIZATION, supra note 69, at 359, 360.
84 Id. at 359.
85 Id. at 371.
86 Bygdeman, Prostaglandins, in ABORTION AND STERILIZATION, supra note 69, at 333, 338.
88 Id.
88 Id.
89 Id. at 338-39. The abortifacient effect of prostaglandins is dependent upon their action on uterine contractility. Id. at 339.
90 See supra notes 79-89 and accompanying text.
91 Hysterotomy is a surgical procedure similar to Caesarian section with risks of the same order of magnitude, and possibly greater likelihood of morbidity. Diggory, Hysterotomy and Hysterectomy as Abortion Techniques, in ABORTION AND STERILIZATION, supra note 69, at 317, 321, 325-27.
92 Id. at 317. A hysterectomy rarely is initiated when an abortion has been unsuccessful. The dangers of hysterectomy increase dramatically when the procedure is undertaken during pregnancy. It is safer to first terminate the pregnancy, and then perform the hysterectomy at a later time. Id. at 321-24.
93 Dunn & Stirrat, Capable of Being Bom Alive?, 1 LANCET 553, 554 (1984).
94 Id. at 554. The authors concluded that it is the extreme immaturity of the lungs and other vital organs before 22 weeks’ gestation which makes an extremely premature infant's survival unlikely without reliance on complex technology. Id.; see Milner & Beard, Limit of Fetal Viability, 1 LANCET 1079 (1984). Surfactant appears to be vital for the survival of the premature infant. When insufficient amounts of surfactant are present, the air-water (blood) surface membrane tension becomes high and the risk that part of the alveoli will collapse during expiration is substantial. As a result, respiratory distress may develop, which is believed a common cause of death in the premature infant. J. LANGMAN, MEDICAL EMBRYOLOGY 205-10 (4th ed. 1981); see also Wigglesworth & Desai, Is Fetal Respiratory Function a Major Determinant of Perinatal Survival?, 1 LANCET 264 (1982). Medical science should eventually yield heroic measures for sustaining the life of an extremely premature infant, such as insertion of artificial surfactant into the lungs of the neonate. Fujiwara, Maeta, Chida, Morita, Watabe & Abe, Artificial Surfactant Therapy in Hyaline-Membrane Disease, 1 LANCET 55, 55 (1980); Ismach, The Smallest Patients, 1981 MED. WORLD NEWS 30, 33.
95 Phillip, Little, Polivy & Lucey, Neonatal Mortality Risk for the Eighties: The Importance of Birth Weight/'Gestational Age Groups, 68 PEDIATRICS 122, 124 table 2 (1981).
96 Ross, Mortality and Morbidity in Very Low Birthweight Infants, 12 PED. ANNALS 32, 37, table 1 (1983).
97 Id. at 38.
98 Id.; see also Campbell, Which Infants Should Not Receive Intensive Care?, 57 ARCHIVES OF DISEASE IN CHILDHOOD 569, 570 (1982); Hack, Fanaroff & Merkatz, The Low Birth Weight Infant— Evolution of a Changing Concept, 301 NEW ENC. J. MED. 1162 (1979); Milligan, Shennan & Hoskins, Perinatal Intensive Care: Where and How to Draw the Line, 148 AM. J. OBSTET. GYNECOL. 449 (1984).
99 Herschel, Kennedy, Kayne, Henry & Cetrulo, Survival of Infants Born at 24 to 28 Weeks’ Gestation, 60 OBSTET. & GYNECOL. 154, 157 (1982).
100 Id.; see also Gottfried, Hodgman & Brown, How Intensive is Newborn Intensive Care? An Environmental Analysis, 74 PEDIATRICS 292 (1984); Levi, Taylor, Robinson & Levy, Analysis of Morbidity and Outcome of Infants Weighing Less Than 800 Grams at Birth, 77 SOUTH. MED. J. 975, 977-78 (1984); Boehm, Can Society Afford Perinatal Health Care?, 76 SOUTH. MED. J. 155, 156-57 (1983).
101 Ross, supra note 96, at 38. The author suggests that the issue of cost must be extended beyond the neonatal intensive care unit, to the emotional and financial burdens of caring for a severely handicapped infant once he or she leaves the hospital. Id.
102 Schechner, , For the 1980s: How Small is Too Small?, 7 CLIN. PERINATOLOGY 135, 135 (1980).CrossRefGoogle Scholar
103 id.
104 Id.
105 Id. at 142. The author notes: “[t]he occasional survival of a very small infant frequently receives public attention in the daily press and on television [t]hus, the public is led to believe that it is possible for every live born infant to survive, no matter how immature.” Id. Additionally, because of pressure from right-to-life groups, some extremely immature infants, weighing less than 500 grams and having minimal pulmonary development, are treated aggressively, despite the slim possibility for prolonged survival. Id.; see generally R., CREASY & R., RESNICK, MATERNAL-FETAL MEDICINE (1984); Morin, Delivery Room Resuscitation, in ASSESSMENT OF THE NEWBORN (M., Ziai, T., Clark & T., Merritt eds. 1984).Google Scholar
106 See supra notes 60-75 and accompanying text.
107 See supra notes 93-100 and accompanying text.
108 Grimes, Cates, Smith & Rochat, supra note 66, at 194.
109 See infra notes 150-56 and accompanying text for a discussion of the necessity raised by teenage pregnancy.
110 Roe v. Wade, 410 U.S. 113, 163 (1973).
111 Id. at 163-64; see supra notes 12-15 and accompanying text.
112 Roe, 410 U.S. at 163-64. 113
113 Id.
114 Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 79 (1976).
115 Id. at 77-79. In Danforth, the invalidated statute prohibited the use of saline amniocentesis as a means of terminating pregnancy after the first 12 weeks, because saline infusion killed the fetus. The Court found that saline amniocentesis was the method most commonly used after the first trimester of pregnancy, and was safer than most other methods used to induce abortion, none of which were banned. Id.
116 Colautti v. Franklin, 439 U.S. 379, 386 (1979).
117 City of Akron v. Akron Center for Reproductive Health Inc., 462 U.S. 416, 486 (1983).
118 Id. at 482-83.
119 Id. at 483; see supra notes 47-52 and accompanying text.
120 Hodgson, Late Midtrimester Abortion, in ABORTION AND STERILIZATION, supra note 69, at 297.
121 Id.; see Chervenak, , Farley, , Walters, , Hobbins, & Mahoney, , When Is Termination of Pregnancy During the Third Trimester Morally Justifiable?, 310 NEW ENC. J. MED. 501 (1984).CrossRefGoogle ScholarPubMed
122 Hodgson, Late Midtrimester Abortion, in ABORTION AND STERILIZATION, supra note 69, at 298.
123 Id. at 299; see generally Schulman, Second Trimester Abortion: Techniques and Complications, in GYNECOLOGY & OBSTETRICS, supra note 95; SECOND TRIMESTER ABORTION: PERSPECTIVES AFTER A DECADE OF EXPERIENCE 318 (G. Berger, W. Brenner & L. Keith eds. 1981); Hern, Outpatient Second-Trimester D & E Abortion Through 24 Menstrual Weeks’ Gestation, 16 ADVANCES IN PLANNED PARENTHOOD 7, 12 (1981); Barr, Midtrimester Abortions—12 to 20 Weeks by Dilatation and Evacuation Method Under Local Anesthesia, 13 ADVANCES IN PLANNED PARENTHOOD 16, 19 (1978); Brenner & Berger, Pharmacologic Methods of Inducing Midtrimester Abortion: Risks and Benefits, in- RISKS, BENEFITS, AND CONTROVERSIES IN FERTILITY CONTROL 292 (J. Sciarra, J. Speidel & G. Zatuchni eds. 1978).
124 See Strong, , Defective Infants and Their Impact on Families: Ethical and Legal Considerations, 11 L., MED. & HEALTH CARE 168, 168-72 (1983)CrossRefGoogle ScholarPubMed; Note, Genetic Screening, Eugenic Abortion, and Roe v. Wade: How Viable is Roe's Viability Standard?, 50 BROOKLYN L. REV. 113 (1983)(discussing legal and ethical issues raised by recent advances in prenatal genetic screening).
125 See supra notes 80-92 and accompanying text.
126 Alberman, , Kani, & Stanwell-Smith, , Congenital Abnormalities in Legal Abortions at 20 Weeks Gestation or Later, 1 LANCET 1226, 1228 (1984)CrossRefGoogle ScholarPubMed. The authors concluded that until tests for early detection of fetal abnormalities are widely available, any lowering of the gestational age limit of viability will reduce the number of legal abortions that can be done for severely handicapping fetal defects. Id.
127 See generally Alter, Advances in the Prenatal Diagnosis of Hematologic Diseases, 64 BLOOD 329 (1984); Finegan, , Amniotic Fluid and Midtrimester Amniocentesis: A Review, 91 BR. J. OBSTET. GYNECOL. 745 (1984)CrossRefGoogle ScholarPubMed; Oakley, , Population and Case-Control Surveillance in the Search for Environmental Causes of Birth Defects, 99 PUB. HEALTH REP. 465 (1984)Google ScholarPubMed; Rowley, , Genetic Screening: Marvel or Menace?, 225 SCIENCE 138, 139-40 (1984)CrossRefGoogle ScholarPubMed; Bloom, , Prenatal Diagnosis: Available Alternatives, 18 HOSP. PRAC. 227 (1983)CrossRefGoogle ScholarPubMed; lams, , Kontras, , Blackstone, & Butler, , Equivocal Karyotype Analysis and Prenatal Counseling, 27 AM. FAM. PHYSICIAN 165 (1983)Google Scholar; McCormack, , Screening for Genetic Traits and Diseases, 27 AM. FAM. PHYSICIAN 153 (1981)Google Scholar; Young, , Wade, , Watt, , Hixson, & Dennis, , The Results of One Thousand Consecutive Prenatal Diagnoses, 147 AM. J. OBSTET. GYNECOL. 181, 182-83 (1983)CrossRefGoogle ScholarPubMed; Chang, Be Kahn, A Sensitive New Prenatal Test for Sickle-Cell Anemia, 307 NEWENG.J. MED. 30 (1982)Google Scholar; Haddow, , Screening for Spinal Defects, 17 HOSP. PRAC. 128 (1982)CrossRefGoogle ScholarPubMed; Konotey-Ahulu, , Ethics of Amniocentesis and Selective Abortion for Sickle Cell Disease, 1 LANCET 38 (1982).CrossRefGoogle ScholarPubMed
128 See generally Brock, , Ultrasound in Detection of Neural Tube Defects, 2 LANCET 1251 (letters 1983);CrossRefGoogle ScholarPubMed Wetrich, , Routine Ultrasound Scanning in Mid Pregnancy, 60 OBSTET. & GYNECOL. 309 (1982)Google Scholar.
129 See generally Cadkin, , Ginsberg, , Pergament, & Verlinski, , Chorionic Villi Sampling: A New Technique for Detection of Genetic Abnormalities in the First Trimester, 151 RADIOLOGY 159 (1984)CrossRefGoogle ScholarPubMed; Cowart, , First-trimester Prenatal Diagnostic Method Becoming Available in U.S., 250 J.A.M.A. 1249 (1983)CrossRefGoogle ScholarPubMed; Kolata, , First Trimester Prenatal Diagnosis, 221 SCIENCE 1031 (1983)CrossRefGoogle ScholarPubMed.
130 M. HARRISON, M. GOLBUS & R. FILLY, THE UNBORN PATIENT 19 (1984)[hereinafter THE UNBORN PATIENT].
131 Id.
132 Id.
133 Id.
134 Id. at 22-23. See also Adler, & Kushnick, , Genetic Counseling in Prenalally Diagnosed Trisomy 18 and 21: Psychosocial Aspects, 69 PEDIATRICS 94 (1982)Google ScholarPubMed. In the authors’ study population, amniocentesis detected 15 fetuses with trisomy 18 or 21 during a three-year period. Of the 15 families, 14 elected legal abortion and 1 experienced spontaneous abortion. Id.
135 Id. at 24-25.
136 Id. at 64.
137 Id.
138 Id. Anencephaly, or “absence of brain,” is the most common anomaly affecting the central nervous system, and has an incidence of 1 out of 1,000 births. Id. at 75.
139 Id. at 64-65.
140 Hecht, , Hecht, & Bixenman, , Caution About Chorionic Villi Sampling in the First Trimester, 310 NEW ENC. J. MED. 1388 (correspondence 1984)Google ScholarPubMed. (Chorionic villi sampling is the random taking for research of vascular processes of the outermost fetal membrane) STEIDMAN's MEDICAL DICTIONARY (24th ed. 1982).
141 see Hecht, , Hecht, & Bixenman, , Safety of First-Trimester Chorionic Villi Sampling, 311 NEW ENG. J. MED. 988 (correspondence 1984)Google Scholar. The authors noted that the key statistic needed, to effectively compare methods of prenatal genetic screening, is the precise fetal-loss rate added by chorionic villi sampling, which could be obtained by a prospective randomized trial comparing pregnancy outcomes after chorionic villi sampling and after amniocentesis. Obtaining such medical evidence, however, would raise a serious ethical dilemma, as the authors noted: “[i]s it ethical to enter women into such a trial when the risk of fetal loss is clearly larger with chorionic villi sampling than amniocentesis?” Id.
142 Perry, , Vekemans, & Lippman, , Safety of First-Trimester Chorionic Villi Sampling, 311 NEW ENG. J. MED. 987 (correspondence 1984)Google ScholarPubMed.
143 Hecht, Hecht & Bixenman, supra note 141, at 988.
144 The development of fetoscopy, which allows direct fetal visualization, presents new possibilities for prenatal diagnosis. Id. Fetoscopy involves using a small-bore endoscope for direct visualization of the fetus, and for obtaining specimens of fetal tissue in an ongoing pregnancy. “Fetoscopy is most successfully performed between 15 and 21 menstrual weeks; the exact gestational age depends on the indication for the fetoscopy. If the main goal is fetal visualization, the optimum time is from 15 and 18 weeks gestation. At this time the uterus is large enough for transabdominal entry and the fetus is still small enough for efficient visualization. If the goal is fetal blood sampling, then the fetoscopy is best performed at 18-21 weeks gestation. At this time the fetal vessels are larger and the fetal blood volume is increased.” Id. at 132.
145 Roe v. Wade, 410 U.S. 113, 163-64 (1973).
146 Rhoden, supra note 6, at 1491.
147 See R. WEIR, SELECTIVE NONTREATMENT FOR HANDICAPPED NEWBORNS (1984).
148 Rhoden, supra note 6, at 1483; see also R. STINSON & P. STINSON, THE LONG DYING OF BABY ANDREW (1983); J . GOLDSTEIN, A. FREUD & A. SOLNIT, BEYOND THE BEST INTERESTS OF THE CHILD (1979); P. RAMSEY, ETHICS AT THE EDGES OF LIFE 14 (1978). These sources discuss nontreatment as an option where an infant's suffering is extreme and/or prolonged survival is highly unlikely.
149 Tietze, supra note 63, at 337. The author reported that in 1978, 50 percent of all legal abortions in the U.S. were performed at 8 gestational weeks or less, and approximately 90 percent were performed by the end of week 12. Id. at 334; see Mann, Society's Choice, Wash. Post, May 8, 1985, at C3, col. 5, 6. One fourth of the 6.1 million pregnancies in the U.S. in 1981 ended in abortion. The rate for white women was 24 abortions per 1,000 pregnancies, while the rate for nonwhite women was 56 abortions per 1,000 pregnancies. Females age 15 to 19 obtained approximately 0.5 million abortions. Mann, supra, at C3, col. 5, 6.
150 Mann, supra note 149, at C3, col. 5,6.
151 Id.
152 Zuckerman, , Alpert, , Dooling, , Hingson, , Kayne, , Morelock, & Oppenheimer, , Neonatal Outcome: Is Adolescent Pregnancy a Risk Factor?, 71 PEDIATRICS 489, 489 (1983)Google ScholarPubMed [hereinafter Zuckerman]. The authors reported that if the present birth rate for adolescents were to continue, of all girls who were age 14 at the date of the study, 20 percent would give birth during their adolescent years. Id.; see Mann, supra note 149, at col. 5. Adolescent mothers are the least likely to receive adequate prenatal care; therefore, their infants are the most likely to need neonatal intensive care. Infants born to adolescent mothers account for 20 percent of all low birthweight infants born each year. Id.
153 See generally Brandt, , Infant Mortality—A Progress Report, 99 PUB. HEALTH REP. 284 (1984)Google ScholarPubMed; Elster, , The Effect of Maternal Age, Parity, and Prenatal Care on Perinatal Outcome in Adolescent Mothers, 149 AM. J . OBSTET. & GYNECOL. 845, 847 (1984)CrossRefGoogle ScholarPubMed; Ventura, & Hendershot, , Infant Health Consequences of Childbearing by Teenagers and Older Mothers, 99 PUB. HEALTH REP. 138 (1984)Google Scholar; Elster, , McAnarney, & Lamb, , Parental Behavior of Adolescent Mothers, 71 PEDIATRICS 494 (1983)Google ScholarPubMed; Garn, & Petzold, , Characteristics of the Mother and Child in Teenage Pregnancy, 137 AM. J . DISEASE IN CHILDHOOD 365 (1983)Google ScholarPubMed; Adams, Oakley & Marks, Maternal Age and Births in the 1980s, 247 J.A.M.A. 493 (1982).
154 Hollingsworth, & Kreutner, , Teenage Pregnancy, 303 NEW ENG. J . MED. 516 (1980)Google ScholarPubMed; Ryan, & Schneider, , Teenage Obstetric Complications, 23 CLIN. OBSTET. GYNECOL. 17 (1980)Google Scholar.
155 Zuckerman, supra note 152, at 493; see also McAnarney, , Lawrence, , Aten, & Iker, , Adolescent Mothers and Their Infants, 73 PEDIATRICS 358, 361-62 (1984).Google ScholarPubMed
156 Roe v. Wade, 410 U.S. 113, 163-64 (1973).
157 Colautti v. Franklin, 439 U.S. 379, 388-89 (1979); City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 428-29 (1983); Planned Parenthood Ass'n of Kansas City, Mo., Inc. v. Ashcroft, 462 U.S. 476, 482 (1983); see supra notes 16-56 and accompanying text; see also Bowes & Selgestad, Fetal Versus Maternal Rights: Medical and Legal Perspectives, 58 OBSTET. GYNECOL. 209 (1981).
158 Comment, , Fetal Viability and Individual Autonomy: Resolving Medical and Legal Standards for Abortion, 27 UCLA L. REV. 1340, 1361-62 (1980)Google Scholar.
159 Id. at 1362.
160 Id. at 1347.
161 Milby, , The New Biology and the Question of Personhood: Implications for Abortion, 9 AM . J . L . & MED. 31,41 (1983)Google ScholarPubMed. The author notes that developments in neo-natal medicine will continue to alter the onset of fetal viability, resulting in recurrent challenge of the viability standard. Id.
162 Id. at 40-41. The author argues that personhood requires the “qualities of sentiency and memory which emanate from the operation of the brain,” on the ground that medical evidence of the stages of embryological development demonstrates “no rational basis … for ascribing the qualities of personhood to the developing entity.” Id. at 40.
In Cornwell, , The Concept of Brain Life: Shifting the Abortion Standard Without Imposing Religious Values, 25 Duo. L. REV. 471, 479 (1987)Google Scholar, the author states that at eight weeks the brain generates electrical waves discernible by an electroencephalogram, id. at 476, and concludes, “The weight of scientific evidence places the beginning of brain life at the eighth week of pregnancy.” Id. at 479. His conclusion, however, is undermined by his acknowledgement that some critics have asserted that life should not be adjudged to begin until sometime between the 28th and 32nd weeks of pregnancy, when the cerebral cortex begins to develop consciousness and other generally recognized cerebral functions. Id. at 476.
163 Comment, , Technological Advances and Roe v. Wade: The Need to Rethink Abortion Law, 29 UCLA L. REV. 1194, 1207 (1982).Google Scholar
164 Id. at 1207-09.
165 Lenow, , The Fetus as a Patient: Emerging Rights as a Person?, 9 AM. J.L. & MED. 1, 28 (1983).Google ScholarPubMed
166 Id. at 29.
167 Id. at 28. An interdisciplinary ad hoc committee, comprised of medical specialists, bioethicists and medicolegal scholars, would establish a medical definition for viability and parameters by which hospital ethics committees should resolve maternal-fetal conflicts. Id.
168 Associate Professor of Law, Georgetown University Law Center.
169 King, , The Juridical Status of the Fetus: A Proposal for Legal Protection of the Unborn, 77 MICH. L. REV. 1647, 1681 (1979).CrossRefGoogle ScholarPubMed
170 Id. at 1679-81. King considers the Court's deference to the medical profession unwarranted, on the ground that physicians have no “peculiar competence” to determine the point at which the state's interest in potential life becomes compelling. Id. at 1681.
171 Rhoden, supra note 6, at 1507 n.402. Rhoden asserts:
[i]f viability grows so early that it no longer supports the balance between the woman's right and the state's interest in the fetus established in Roe, the balance should be retained and the viability standard abandoned. Then, and only then, will a firm cutoff have to be selected. Moreover, I do not advocate that 20 weeks necessarily be selected: rather, I simply believe that whatever cutoff is chosen, it definitely should not be any earlier than the twentieth week.
Id. (emphasis omitted).
172 See supra notes 136-63 and accompanying text.
173 Rhoden, supra note 6, at 1506.
174 See supra notes 149-56 and accompanying text.
175 See supra notes 158-60 and accompanying text.
176 See supra notes 161-62 and accompanying text.
177 See supra notes 163-64 and accompanying text.
178 See supra notes 171-74 and accompanying text.
179 462 U.S. 416 (1983).
180 Id. at 419.
181 Id. at 419-20. Reaffirming Roe in Akron, the Court stated: “[T]he doctrine of stare decisis, while perhaps never entirely persuasive on a constitutional question, is a doctrine that demands respect in a society governed by the rule of law. We respect it today … .” Id.
182 Id. at 429.
183 Id. at 430.
184 Id.
185 Lecture by John Kramer, at Georgetown University (Feb. 1985).
186 Id.
187 Cates, supra note 60, at 1589. The protective effect of continuing a pregnancy to term, and corresponding lower risk of breast cancer, could be due to either breast cell changes occurring late in pregnancy, or a permanently altered hormonal profile during the later stages, or both. Id.
188 Id. at 1589. Some preliminary data suggests an association between induced abortion and miscarriage in subsequent pregnancies, or subsequent birth of premature and/or low birthweight infants. Id.; see W. HERN, LONG-TERM RISKS OF INDUCED ABORTION, IN ABORTION PRACTICE, supra note 69, at 275 (1984); Linn, , Schoenbaum, , Monson, , Rosner, , Stubblefield, & Ryan, , The Relationship Between Induced Abortion and Outcome of Subsequent Pregnancies, 146 AM. J. OBSTET. GYNECOL. 136 (1983)CrossRefGoogle ScholarPubMed.
189 462 U.S. 416 (1983).
190 462 U.S. at 430-31; see supra notes 31-46 and accompanying text.
191 Roe v. Wade, 410 U.S. 113, 163 (1973); see supra notes 8-11 and accompanying text.
192 See supra notes 60-75 and accompanying text; see also Goldstein & Comeau, The Abortion Arena: Recent Activity, in LEGAL MEDICINE 213 (C. Wecht ed. 1982). Goldstein and Comeau note that the rationale for state regulation in the early stages of the second trimester, in the interest of maternal health, has almost been eliminated because during that time period abortion is an equally safe alternative to childbirth. Id. at 224.
193 Akron, 462 U.S. at 431; see Goldstein & Comeau, supra note 192, at 224-25. If a method to terminate pregnancy which did not threaten fetal life existed, such as use of fetal transfer and artificial gestation devices, the state would be unable to proscribe such a procedure under the current constitutional analysis of legal abortion. Id.
194 Akron, 462 U.S. at 437. In Akron, the Court stated, “We conclude, therefore, that ‘present medical knowledge’ convincingly undercuts Akron'% justification for requiring that all second-trimester abortions be performed in a hospital.” Id. (quoting Roe, 410 U.S. at 163); see supra notes 35-40 and accompanying text.
195 Akron, at 453-456. In her dissent, Justice O'Connor criticizes the majority for retaining the trimester framework:
Although the Court purports to retain the trimester approach as a ‘reasonable legal framework for limiting’ state regulatory authority over abortions, the Court expressly abandons the Roe view that the relative rates of childbirth and abortion mortality are relevant for determining whether second-trimester regulations are reasonably related to maternal health. Instead, the Court decides that a health regulation must not ‘depart from accepted medical practice’ if it is to be upheld.
Id. at 454 n.2 (citations omitted).
196 Id. at 452. Justice O'Connor concluded, “The decision of the Court today graphically illustrates why the trimester approach is a completely unworkable method of accommodating the conflicting personal rights and compelling state interests that are involved in the abortion context.” Id. at 454; see supra note 6 and accompanying text.
197 Akron , 462 U.S. at 458.
198 Id. Justice O'Connor noted that “[w]ithout the necessary expertise or ability, courts must [thus] pretend to act as science review boards and examine [all] legislative judgments.” Id.; see A. Cox, supra note 60, at 113. Professor Cox criticizes the Roe decision for “not articulating a precept of sufficient abstractness to lift the ruling above the level of a political judgment based on the evidence currently available from the medical, physical and social sciences.” A. Cox, supra note 56, at 113.
199 Akron, 462 U.S. at 458. Justice O'Connor concluded that the Roe framework “is clearly on a collision course with itself,” on the ground that as the medical risks of abortion techniques decreased, the point at which the state could regulate for reasons of maternal health would be moved forward toward childbirth, while medical technology would move the onset of fetal viability back toward conception. Id.
200 Id. at 459; see A. Cox, supra note 56, at 114. Professor Cox argues that “[c]onstitutional rights ought not to be created under the Due Process Clause unless they can be stated in principles sufficiently absolute to give them roots throughout the community and continuity over significant periods of time… .” Id.
201 Akron, 462 U.S. at 461. Justice O'Connor stated:
The state interest in potential human life is likewise extant throughout pregnancy… . At any stage in pregnancy, there is the potential for human life… . The choice of viability as the point at which the state interest in potential life becomes compelling is no less arbitrary than choosing any point before viability or any point afterward.
202 Dellapenna, , The History of Abortion: Technology, Morality, and Law, 40 U. PITT. L. REV. 359, 424 (1979)Google Scholar. The author argues that the implied constitutional mandate underlying abortion must involve the Court “in deriving conclusions from public mores since the constitutional text is so indefinite with regard to abortion.” Id. Dellapenna asserts that a better solution must be found, which accommodates the feelings of women forced to bear children against their will, and the feelings of those who protest termination of fetal life. Id. at 426.
203 Ely, , The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE LJ. 920, 947 (1973)CrossRefGoogle ScholarPubMed(citations omitted). Ely argues:
Let us not underestimate what is at stake: having an unwanted child can go a long way toward ruining a woman's life. And at bottom Roe signals the Court's judgment that this result cannot be justified by any good that anti-abortion legislation accomplishes. This surely is an understandable conclusion—indeed it is one with which I agree—but ordinarily the Court claims no mandate to second-guess legislative balances, at least not when the Constitution has designated neither of the values in conflict as entitled to special protection.
Id. at 923 (notes omitted); see L. TRIBE, AMERICAN CONSTITUTIONAL LAW 927, 931-32 (1978). Professor Tribe is as critical of the Court's constitutional analysis in Roe as Professor Ely:
[N]othing in the Supreme Court's opinion provides a satisfactory explanation of why the fetal interest should not be deemed overriding prior to viability, particularly when a legislative majority chooses to regard the fetus as a human being from the moment of conception and perhaps even when it does not… . Whatever might be said of a consistent commitment to helpless unborn life, the argument for preferring majority rule over the woman's choice in matters of reproduction seems thin to the vanishing point.
Ely, supra at 927, 932 (citations omitted).
204 Regan, Rewriting Roe v. Wade, 77 MICH. L. REV. 1569 (1979). Regan asserts:
The point of the bad-samaritan principle is to establish that, as a general proposition, one does not have to give aid whenever another requires it. One can turn one's back on another's need, declining to subordinate one's own interest. One can choose not to be involved. When a woman secures an abortion in order to avoid the burdens imposed by an unwanted fetus, she is doing just what the bad-samaritan principle, in its standard applications, is designed to allow. It may seem odd to suggest that securing an abortion is really an “omission,” but if we want the “act/omission” distinction to reflect the values underlying the bad-samaritan principle, then that is how abortion ought to be viewed … .
“The common law recognizes the bad-samaritan principle because it does value the freedom to refuse aid, to resist subordination even in trivial ways, to remain uninvolved. If this freedom is important, it is as important for the pregnant woman as for anyone else.” Id. at 1574, 1578.
205 Id. at 1570. Regan notes:
My object is not to show that by traditional standards the pregnant woman is indistinguishable from the totally uninvolved bystander who may refuse even the most trivial aid. The pregnant woman is not totally uninvolved. She is sufficiently involved that we could appropriately impose slight burdens of aid on her, if imposing slight burdens would do the fetus any good. Unfortunately, imposing slight burdens on her will not do the fetus any good. It is very large burdens or nothing. What I propose to show in this Section [of the Article] is that even if the pregnant woman is sufficiently involved to justify imposing some small duty of aid, she is still less “eligible for compulsion” than any of the other potential Samaritans who figure in the standard exceptions to the bad-samaritan principle. Id. at 1591; see Thomson, , A Defense of Abortion, 1 PHIL. & PUB. AFF. 46, 48-49, 59-66 (1971)Google Scholar. In her argument in support of abortion, Judith Jarvis Thomson poses the hypothetical that a person is kidnapped by the Society of Music Lovers to be forced to assist in saving the life of a dying violinist. Thomson concludes, “I have argued that you are not morally required to spend nine months in bed, sustaining the life of the violinist … you may detach yourself even if this costs him his life … .“
Id. at 66.
206 Regan, supra note 204, at 1583.
207 Id. at 1583-84.
208 Id. at 1579-83. Donald Regan is laudably sympathetic to the plight of a woman burdened with an unwanted pregnancy, as he notes, “[F]or a woman who does not want a child, pregnancy is very burdensome indeed. It is worth mentioning that all of the pains and discomforts listed above are likely to be significantly aggravated when the entire pregnancy is unwanted.” Id. at 1582.
209 Id. at 1622. In support of his equal protection argument, Regan distinguishes laws forbidding abortion from other laws imposing a duty to act, such as the military draft. Id. at 1604-09. Additionally, Regan rejects the argument that a pregnant woman has voluntarily begun to aid the fetus and, under Samaritan law, has assumed certain duties: “There is substantial authority for the proposition that one who voluntarily begins to aid another assumes certain duties. The aid must be provided in a non-negligent manner, and in some circumstances the aid may not be terminated. It might be argued that a pregnant woman has embarked on a course of aid to the fetus which she may not terminate by an abortion. The principal objection to this argument is that the pregnant woman has not “voluntarily” begun to aid the fetus I have conceded that, except in the case of rape, her connection with the fetus is not totally involuntary. But in most cases the pregnant woman has not knowingly and intentionally offered the fetus any assistance at all. At most she has taken a small risk, and lost. AH of the cases about “voluntarily beginning aid” involve potential Samaritans who, unlike the pregnant woman, have knowingly and intentionally embarked on a course of assistance to someone in need. Id. at 1598-99; see also Smith, Intercourse and Responsibility for the Fetus, in ABORTION AND THE STATUS OFTHE FETUS 229 (W. Bondeson, H. Englehardt, S. Spicker & D. Winship eds. 1983). The author argues that a woman does not waive her moral right to use of her body simply by engaging in intercourse, even if she knows that she may become pregnant. Smith asserts that no society may legitimately stipulate that engaging in intercourse constitutes a legally binding waiver of the right to use of one's body. Id. at 239.
210 Regan, supra note 204, at 1593.
211 Id. at 1597. Regan concludes:
It is much more plausible to view keeping the child as a voluntary assumption of the burdens of raising the child than to view having sex as a voluntary assumption ofthe burdens of pregnancy and childbirth… . The parent, much more than the pregnant woman, creates the relationship with the child. The parent who refuses aid, much more than the pregnant woman who has an abortion, is like the Samaritan who harms the object of his ‘assistance’ by voluntarily embarking on a course of aid and then terminating it after other potential Samaritans have turned their attention elsewhere, satisfied that the need is being met.… Finally, it is worth emphasizing again that the burdens of parenthood, however great they are, are not as physically invasive as the burdens of pregnancy and childbirth. For better or worse, our tradition assigns special disvalue to the imposition of pain or extreme physical discomfort and to actual invasions of the body.
Id. at 1597-98.
212 Id. at 1630. Regan notes that the non-subordination value that is implicit in the badsamaritan principle of the common law is also the core of the thirteenth amendment prohibition against involuntary servitude. Regan concedes that unwanted pregnancy “is not slavery in the fullest sense,” but concludes that “it certainly involves the disposition and coercion of the (intensely) personal service of one [person] for another's benefit.” Id. at 1619. Regan further notes that the value of freedom from bodily invasion or imposed physical pain or hardship is embodied in the eighth amendment, and is also considered to be “among those fundamental values of our society which are traditionally subsumed under due process.” Id.
213 Id. at 1639. Regan concludes:
The equal protection argument I have made about abortion could not be made were it not that in many other cases involving potential Samaritans our legal system prefers values such as non-subordination and physical integrity to the value of preserving life.
Id. at 1635-36.
Regan also suggests that another reason for heightened equal protection of abortion laws is that women, and pregnant women in particular, have suffered from a history of discrimination in modern society; not just from occasional laws counter to their interests, but from an extensive pattern of discriminatory laws and social practices. Id. at 1632; see also Karst, Book Review, 89 HARV. L. REV. 1028, 1036-37 (1976).
The author argues that the cases of contraception and abortion, as well as the sex discrimination cases, all present “various faces” of a single issue, “the roles women are to play in our society.” Id. at 1036-37; see Tribe, supra note 203, at 931. Professor Tribe comments upon the role of women in modern society:
[t]hus, on the record before it, and in view of realities too commonplace to be ignored, the Court might understandably have viewed restrictive abortion laws less as meaningful protections for unborn life than as relatively pointless and economically skewed expressions of outdated worry about the health of the women involved coupled with disapproval of their moral choices in wishing to escape the burdens that women but not men have long been fated to bear as the price of sexual pleasure. Stripped by these realities of its sting as a stark choice between moral absolutes, the choice confronting the Court might therefore have seemed considerably less excruciating in fact than it appeared in theory.
Tribe, supra note 203, at 931.
214 Regan, supra note 204, at 1639-40. Regan persuasively asserts that his argument “is better grounded than the Court's in what are undeniably constitutional values.” Id. at 1640.
215 Id. at 1640-41.
It is essential to Blackmun's argument that he brush aside the state's attempt to regard the fetus as a person… . My argument, unlike Blackmun's, does not depend on refusing to allow the state to regard the fetus as a person. Everything I have said is consistent with the assumption that the fetus is a person. Other persons are allowed to die when potential Samaritans are authorized by the bad-samaritan principle to deny aid. The personhood of the fetus, even if it be conceded, is not an adequate reason (indeed it is no reason at all) for treating the pregnant woman differently from other potential Samaritans.
Id. at 1641.
216 Id.
217 W. at 1642.
218 Id.
219 Snedaker, , Reconsidering Roe v. Wade: Equal Protection Analysis as an Alternative Approach, 17 N.M.L. REV. 115, 124 (1987)Google Scholar. Snedaker argues:
The Court could shift its focus in abortion cases and view abortion as raising issues of inequality; that is, presenting the issue of a woman's right to take autonomous charge of her full life's course, of her ability to stand in relation to man, society, and the state as an independent, self-sustaining, equal citizen. This approach is the most appropriate solution to the Roe dilemma—not only does the approach avoid the trimester analysis, it also avoids the substantive due process controversy, and, in addition, offers a unified theory for adjudication of women's rights issues… . Fundamental to the inequality approach is the notion that if women are to achieve fully equal status in American society, including a sharing of power traditionally held by men and a retaining of control of their bodies, our understanding of gender classifications must encompass a strong constitutional equality guarantee regarding a woman's right to take autonomous charge of her life, of her ability to function as an independent, self-sustaining, equal citizen.
Id. at 124, 129.
220 Id. at 129. Snedaker asserts that the departure from current equal protection analysis “is necessary because laws governing reproductive biology, by definition govern ways in which men and women are not similarly situated.” Id.
221 Id. at 130. Snedaker states:
Once the underlying assumption regarding the scope of equality is broadened—from one meaning that likes should be treated alike and differences should be treated differently, to one meaning that persons have the right to control one's own social roles, the right to control one's own future—conceptualizing the abortion question as an equality issue follows quite naturally.
Id.
222 Id. Snedaker frames the issue:
If the classification is determined to contribute to the continued oppression of women, the court must then consider whether the law has a substantial impact on perpetuating the inequality of women. If so, strict scrutiny applies to determine whether the law is justified by a compelling state interest. From this approach then, the interest of the woman becomes the central focus of the inquiry.
Id.
223 Id. at 131.
224 Id. at 130.
225 Id. at 132. Snedaker distinguishes her equality approach from the Roe right of privacy analysis:
The Roe privacy doctrine asks the court to consider whether: (1) the state's regulation of procedure, during the second trimester, is reasonably related to maternal health, or (2) the state's regulation of procedure, during the third trimester, is reasonably related to protecting potential human life. The equality principle advocated here considers whether the state can meet the burden of proving that a regulation: (1) has no significant impact in perpetuating the inequality of women or, if it does further oppression of women, whether it (2) is the best means for meeting a compelling state purpose.
Id. at 131-32.
226 See supra note 221 and accompanying text; see also Karst, Foreword: Equal Citizenship Under the Fourteenth Amendment, 91 HARV. L. REV. 1, 57-59 (1977). Karst notes:
The abortion question was not merely a “women versus fetuses” issue; it was also a feminist issue, an issue going to women's position in society in relation to men. The focus of [the] equal citizenship [principle] here is not a right of access to contraceptives, or a right to an abortion, but a right to take responsibility for choosing one's own future.… [T]o be a person is to respect one's own ability to make responsible choices in controlling one's own destiny, to be an active participant in society rather than an object.
Id. at 58.
227 See Karst, supra note 226, at 58-59. Karst observes:
The principle of equal citizenship provides no deductive solution to the dilemma of the first abortion cases. The decisions in those cases, to be consistent with the principle, necessarily rest on the assumption that a fetus is not a “person” protected by the fourteenth amendment—an assumption which the Court made explicit in Roe v. Wade. But the assumption is not self-evident, and the equal citizenship principle is only a way of reasoning from the premise of what the Court called “personhood,” not a means of defining who is a person. Once the critical assumption is made, however, the equal citizenship principle contributes to analysis of the abortion question by insisting that we recognize the question's “woman's role” dimension.
Id.
228 See Regan supra note 215 and accompanying text.
229 Snedaker, supra note 219, at 136. Snedaker asserts:
Indeed, a brief overview of the development of the privacy right demonstrates that privacy remains a nebulous concept which is not amenable to precise definition. Gathered loosely under its banner is a collection of widely differing legal concepts which are tenuously united by an underlying philosophy that the government should interfere as little as possible in people's private lives.
Id.
230 Id, at 130-31.
231 Id. at 136. Snedaker acknowledges one weakness of the equality approach:
[T]he standard by which regulations are to be judged under the equality approach, whether a challenged policy or practice contributes to the oppression of women, makes it exceedingly difficult to determine what perpetuates sex-based deprivation and even more difficult to prove such deprivation. Although it seems clear that most restrictions on abortion fall within this standard, the question of oppression outside the abortion area will likely prove more problematic.
Id.
232 See supra notes 204-18 and accompanying text.
233 City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983); see supra notes 41-46, 179-201 and accompanying text.
234 Akron, 462 U.S. 416; see supra notes 31-45.
235 Tietze & Lewit, , Legal Abortion, 236 Sci. AM. 21, 26 (1977);Google Scholar see also Cates, Grimes, Smith & Tyler, Legal Abortion Mortality in the United States: Epidemiologic Surveillance, 1972-1974, 237 J.A.M.A. 452 (1977); Lucas, Legal Aspects of Abortion Practice, in ABORTION PRACTICE 253 (W. Hern 1984).
236 See supra notes 77-92 and accompanying text.
237 Jameson, , Physicians and American Political Leadership, 249 J.A.M.A. 929 (1983)Google ScholarPubMed.
238 Id.
239 See supra notes 31-46 and accompanying text.
240 Lamar, Silent No More, TIME, May 27, 1985, at 32.
241 Id.
242 Id.
244 Id. at 32.
245 See id. The reporter quoted, Lauren Vishop, the executive director of the California branch of the National Abortion Rights Action League (NARAL), who asserted, “We are responding to what the pro-lifers have done, but what we will do will have a life of its own. When people really understand that we may be on the brink of losing legal abortion, the energy we once had will return.” Id; see also Advise and Dissent, TIME, Sept. 21, 1987, at 11. In response to the nomination of Robert Bork as a Supreme Court Justice, NARAL joined a coalition of liberal organizations? which published scholarly analyses of Bork's academic and judicial record, and coordinated national demonstrations against his nomination. Id. at 13.
246 Cook, & Dickens, , Abortion Laws in Commonwealth Countries, 30 INT'L DIG. HEALTH LEGIS. 395, 457 (1979)Google ScholarPubMed.
247 See id. at 458-59. The authors noted that the abortion problem in modern societies concerns issues of individual welfare, which are “not successfully managed under concepts of crime and punishment.” Id. at 459.
248 Id. at 459.
249 The authors concluded that the woman's abortion right is best expressed where the legislation does not contain negative language, but rather provisions such as “[i]t shall be lawful to terminate a woman's pregnancy when … .” Id. Cook and Dickens present a comprehensive examination of abortion legislation in Commonwealth nations, including analysis of differing lines of legislative development. The 1974 Abortion Act of Singapore is an example of particularly liberal legislation. Under the Act, a qualified medical practitioner may perform abortion on request up to the end of the 16th week. Up to the end of the 24th week, abortion may be performed on request by a specially-qualified practitioner. Subsequent abortion is lawful only to save the life, or to prevent grave permanent injury to the physical or mental health of the mother. Id. at 456; see also Veitch, & Tracey, , Abortion in the Common Law World, 22 AM. J. COMP. L. 652 (1974).CrossRefGoogle Scholar
250 See, e.g., Cook, & Dickens, , A Decade of International Change in Abortion Law: 1967-1977, 68 AM. J. PUB. HEALTH 637, 638 (1978)CrossRefGoogle ScholarPubMed. The authors reported that from 1967 to 1977, at least 42 international jurisdictions changed their abortion laws. Thirty-nine jurisdictions extended the grounds for legal abortion while three others narrowed the grounds. Id. at 637; see David, Abortion Policies, in ABORTION AND STERILIZATION 1 (J. Hodgson ed. 1981).
251 Tietze & Lewit, supra note 235, at 25. The authors reported that from 1963 to 1967, there were approximately 5.7 abortion-related deaths per year per million women age 15-44 in the United States, while there was only one death per million in 1974. Id.
252 Id. at 26.
253 See generally, Cates, , Gold, & Selik, , Regulation of Abortion Services—For Better or Worse, 301 NEW ENG. J. MED. 720 (1979)CrossRefGoogle ScholarPubMed.
254 Id. at 723. The authors note that “current state and local statutes which seek to regulate abortion under the guise of ensuring adequate patient education or improving the safety of the procedure, or both, could have the opposite effects.” Id.
255 See generally, Cook & Dickens, supra note 246, at 484.
256 See generally, supra notes 61-75 and accompanying text.
257 410 U.S. 179 (1973).
258 Id. at 192; see supra notes 18-19 and accompanying text. It is interesting to note that the World Health Organization (WHO) adopted a liberal definition of health in its Constitution, in 1946. In the Preamble to the Constitution, the WHO stated, “Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.” WORLD HEALTH ORC. CONST, preamble, 2 OFF. REC. WORLD HEALTH ORG. 100 (1946). The WHO definition of “health” is strikingly similar to the Doe v. Bolton definition. Both definitions view “health” as a state corresponding to physical and psychological wellbeing, including consideration of “familial” factors in the Doe definition, and “social” factors in the WHO definition.
259 See supra notes 125-56 and accompanying text. “Health” could be interpreted to include the danger to the physical and mental well-being of the mother in the case of a woman seeking late abortion of a defective fetus, or an adolescent seeking late abortion. But see Rhoden, supra note 19, at 685.
260 Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747 (1986); cf. Zbaraz v. Hartigan, 763 F.2d 1532, 1537-39 (7th Cir. 1985), aff'd, 108 S. Ct. 479 (per curiam)(1987), rehearing denied, 108 S. Ct. 1064 (1988) (judgment below had been affirmed by an equally divided court). In Zbaraz, the court held unconstitutional a provision of the Illinois Parental Notice of Abortion Act which required a physician to give 24 hours notice to both parents of a minor before performing an abortion on her. Zbaraz, 763 F.2d at 1534.
261 See Thornburgh, 476 U.S. at 759. Reaffirming Roe, the Court stated: “[l]ess than three years ago, this Court, in Akron, Ashcroft, and Simopoulos, reviewed challenges to state and municipal legislation regulating the performance of abortions. In Akron, the Court specifically reaffirmed Roe v. Wade. Again today, we reaffirm the general principles laid down in Roe and in Akron.” Id. (citations omitted). The Court invalidated provisions of the Pennsylvania Abortion Control Act which required that a woman wishing to terminate her pregnancy be advised that medical assistance may be available and the father is responsible for financial assistance in support of the child, id. at 760-61; that the physician inform the woman of the detrimental physical and psychological effects and all medical risks of any abortion procedure to be used, id. at 760; that certain information regarding any abortion performed be made available to the public, id. at 765-68; and which failed to provide a medical emergency exception for the situation where the woman's health is endangered by delay in the second physician's arrival during an abortion performed when the fetus may be viable. Id. at 770-71.
262 Id. at 759, 772. Justice Blackmun further stated:
[t]he requirements of [the informed consent provision] that the woman be advised that medical assistance benefits may be available, and that the father is responsible for financial assistance in the support of the child similarly are poorly disguised elements of discouragement for the abortion decision. Much of this would be nonmedical information beyond the physician's area of expertise and, for many patients, would be irrelevant and inappropriate. For a patient with a life-threatening pregnancy, the ‘information’ in its very rendition would be cruel as well as destructive of the physician-patient relationship. As any experienced social worker or other counsellor knows, theoretical financial responsibility often does not equate with fulfillment. And a victim of rape should not have to hear gratuitous advice that an unidentified perpetrator is liable for support if she continues the pregnancy to term. Under the guise of informed consent, the Act requires the dissemination of information that is not relevant to such consent, and, thus, it advances no legitimate state interest.
Id. at 763.
263 Id. at 813-14 (White, J., dissenting).
264 Id. at 833 (O'Connor, J., dissenting).
265 See WALLIS, supra note 5, at 83. The author recognizes the need for an alternative constitutional basis for legal abortion: Both sides in the bitter abortion dispute agree that a technology-dependent viability standard provides a weak foundation for constitutional rights …. But any effort to find a new basis for the nation's abortion law would have to reckon with the essentially irresolvable conflict between society's obligation to protect a newly independent life and the mother's right to privacy. Id.
266 Cf. Uddo, The Human Life Bill: Protecting the Unborn Through Congressional Enforcement of the Fourteenth Amendment, 27 LOY. L. REV. 1079 (1981); see generally Emerson, The Power of Congress to Change Constitutional Decisions of the Supreme Court: The Human Life Bill, 77 Nw. U.L. REV. 129 (1982); Estreicher, , Congressional Power and Constitutional Rights: Reflections on Proposed “Human Life” Legislation, 68 VA. L. REV. 333 (1982);Google Scholar Robertson, Medicolegal Implications of a Human Life Amendment, in DEFINING HUMAN LIFE: MEDICAL, LEGAL AND ETHICAL IMPLICATIONS 161, 165-66 (M. Shaw & A. Doudera eds. 1983).
267 Cf. Westfall, Beyond Abortion: the Potential Reach of a Human Life Amendment, in DEFINING HUMAN LIFE: MEDICAL, LEGAL AND ETHICAL IMPLICATIONS supra note 266, at 174, 184. The author notes that after passage of a Human Life Amendment, the state could prohibit pregnant women from smoking, drinking, using drugs including caffeine, flying, riding in automobiles, practicing sports and working in possibly hazardous environments, on the ground that such regulation is necessary to protect the developing fetus. Id. at 184.
