Abstract
Fourteen years ago, the Supreme Court found unconstitutional every state law then in existence that prohibited abortions. Yet, despite the dramatic immediate effect of Roe v. Wade, 410 U.S. 113 (1973), the Court relied on what was very much a compromise approach. The Court did not hold that a woman’s rights to autonomy and privacy yielded her sole control over the abortion decision. Rather, it adopted the by now well-known trimester system, under which abortion was more or less susceptible to state interference depending on when in the pregnancy it was performed. After the fetus attained viability, that point in the pregnancy when it could be sustained outside the uterus, the state acquired a compelling interest in preserving fetal life. Even that compelling interest must yield, the Court ruled, when an abortion was needed to protect the woman’s own life or health. But absent those exigencies, abortions after viability could be restricted or even banned.
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Notes and References
In 1973, the year Roe v. Wade was decided, 63 percent of all abortions occurred within the first 10 weeks of pregnancy. Today, 88 percent of all abortions occur in the first 10 weeks. Grimes, Second Trimester Abortions in the United States, 16 Family Planning Perspectives 260 (1984).
Henshaw, Binkin, Blaine, and Smith, A Portrait of American Women Who Obtain Abortions, 17 Family Planning Perspectives 90, 91 (1985). One study suggests that even the 0.01 percent figure may be too high. Staff from the Centers for Disease Control investigated all abortions reported as occurring during the third trimester in the state of Georgia from 1979 and 1980. Of the 78 with adequate data, only three had been classified correctly. Two of those involved anencephalic fetuses. Correction of the misclassified reports would reduce the rate of post-24-week abortions in Georgia to 0.004 percent. Spitz, Lee, Grimes, Schoenbucher, and Lavorie, Third Trimester Induced Abortion in Georgia, 1979 and 1980, 73 American Journal of Public Health 594 (May 1983).
Presentation to the working group of the Project on Reproductive Laws for the 1990s, March 18, 1986.
In 1977, 455,000 cesarean sections were performed in the United States, or approximately 13 percent of all deliveries. Marieskind, An Evaluation of Caesarean Section in the United States, Dept. Health, Education and Welfare (1979), Table 1 at 13.
See generally references cited in Janet Gallagher’s position paper, “Fetus as Patient,” in this book.
U.S. Centers for Disease Control (CDC), Abortion Surveillance 1981 (Nov. 1985), Table 14 at 37.
Id.
Alan Guttmacher Institute (AGI), 3 Public Policy Issues in Brief 1, 3 (1983); Grimes, Second Trimester Abortions in the United States at 261–2; Burr and Schulz, Delayed Abortion in an Area of Easy Accessibility, 244 Journal of the American Medical Association 44 (1980).
See Donovan, Judging Teenagers: How Minors Fare When They Seek Court-Authorized Abortions, 15 Family Planning Perspectives 259 (November/December 1983) and ACLU Reproductive Freedom Project, Parental Notice Laws: Their Catastrophic Impact on Teenagers’ Right to Abortion (1986).
In 78 percent of all U.S. counties, where 28 percent of all women live, there was no identified abortion provider at all in 1980; nearly 90 percent of nonmetropolitan counties had no abortion services. AGI, Issues in Brief, at 3. Travel across county lines alone is associated with an average delay of 5 days. Henshaw and O’Reilly, Characteristics of Abortion Patients in the United States, 1979 and 1980, 15 Family Planning Perspectives 5, 154 (January/February 1983).
Grimes, Second Trimester Abortions in the United States, at 261. This number represents only 2–5 percent of all amniocentesis tests performed in a year. The overwhelming majority of amniocentesis tests are negative for anomalies, and have the effect of reassuring the prospective parents.
CDC reported 10,783 abortions performed past 20 weeks gestation in 1981. Abortion Surveillance 1981, Table 11 at 35.
The immune system weakens during pregnancy, with the ratio of T-helper to T-suppressor cells reaching its lowest point in the third trimester. This is one reason for the increasing concern that pregnant women may have especially strong reasons to learn whether they have been infected with the human immunodeficiency virus (HIV), the virus believed to cause AIDS. Another reason is that HIV infection can be transmitted in utero or at the time of birth. To date, approximately 350 children in the United States have been diagnosed as having perinatally acquired AIDS; more than 200 have died. An unknown number are infected with the virus. CDC, Recommendations for Assisting in the Prevention of Perinatal Transmission of HTLV-III and LAV and AIDS, 34 Mortality and Morbidity Weekly Report (1985).
See generally, S. L. Romney, et al., Gynecology and Obstetrics, (2nd ed. 1981) at 703, 705–708, 710, 712–714, 718, 722, 724, 726, 729, 732, 739, 756, 762, 764, 776, 778, 783–784, 793, 795. See also Williams, Obstetrics at 477. One of the leading causes of maternal mortality nationwide, hypertensive states of pregnancy (toxemia), does not appear until the late second trimester. Termination of the pregnancy is recommended for severe cases, and these are usually post-viability. Id. at 528, 543.
A. Radosh, New York City Office of Adolescent Pregnancy and Parenting Services, unpublished manuscript, 1986.
New York City Department of Health, Summary of Vital Statistics (1986), at 16, 17.
See, e.g., McRae v. Califano, 491 F. Supp. 630, 675–6 (E.D.N.Y. 1980) rev’d on other grounds sub nom. Harris v. McRae, 448 U.S. 297 (1980).
Jones, Forrest, Goldman, Henshaw, Lincoln, Rosoff, Westoff, and Wolf, Teenage Pregnancy in Developed Countries: Determinants and Policy Implications, 17 Family Planning Perspectives 53 (March/April 1985).
New York Times, “When Abortions Become Live Births.” Feb. 15, 1984. The pool of service providers available even in the second trimester is small. Only 20 percent will perform abortions after 14 weeks. AGI, Issues in Brief at 3.
Grimes, Second Trimester Abortions in the United States at 262.
Id.
Id. The remaining abortions are performed by methods using a mixture of techniques, such as instillation of prostaglandin combined with urea (also a fetal-destructive substance), or injection with urea, followed by a D & E.
New York Times, “When Abortions Become Live Births.” Feb. 15, 1984.
Abortion Surveillance 1981 reports 1.3 million total abortions.
Abortion Surveillance 1981, Table 11 at 35.
A live birth is defined for official statistical purposes in 45 states as a “product of conception, irrespective of the duration of the pregnancy which... breathes or shows any other evidence of life such as beating of the heart... or definite movement of voluntary muscle.” National Office of Vital Statistics DHEW, International Recommendations in Definitions of Live Birth and Fetal Death, Washington, D.C. (1950), cited in Grimes at 263.
Grimes, Second Trimester Abortion in the United States at 263.
In a clinical study to compare D & E with prostaglandin instillation for second-trimester abortions, three of the women who had been randomly assigned to the prostaglandin group dropped out of the study because of their fear of a long, painful labor culminated by abortion in bed. Grimes, Hulka, and McCutchen, Midtrimester Abortion by Dilatation and Evacuation Versus Intra-Amniotic Instillation of Prostaglandin F2a: A Randomized Clinical Trial, 137 American Journal of Obstetrics and Gynecology 785, 789 (1980).
No decision has addressed the question of whether state constitutions might be the basis for a right to abortion without the viability limit. Some state courts do interpret the privacy right underlying abortion provided by their state constitutions more expansively than the United States Supreme Court has interpreted the federal constitution, at least in the context of public funding. See, e.g., Right to Choose v. Byrne, 91 N.J. 287, 450 A.2d 925 (1982); Committee to Defend Reproductive Rights v. Myers, 29 Cal. 3d 252, 625 P.2d 779 (1981); Moe v. Secretary of Administration and Finance, 417 N.E. 2d 387 (Mass. 1981).
Scienter is the mental state necessary for criminal prosecution; typically it incorporates intentional, knowing, reckless, or negligent acts.
Justice White, in his Thornburgh dissent, decries this result as illogical because it allows the state to forbid entirely nonnecessary abortions past the point of viability, even if they are safer than childbirth, but prevents the state from imposing any quantum of enhanced risk on the woman in method selection for necessary abortions, even though the state’s interest in the fetus is then at its height. 56 U.S.L.W. at 4635. In a sense he is correct. His response is to allow the state to implement more fully its disfavor of these (or any) abortions. Another response would be to conclude that increased medical risk, which is impermissible, is no greater detriment to the liberty interest at stake than compulsory pregnancy and childbirth, which therefore should be impermissible. Thus one should adopt the doctrinal principles advocated herein.
Lower courts have explicitly adopted this position. See Wynn v. Scott, 449 F.Supp. 1302, 1321 (N.D. Ill. 1978).
The medicalization, and thus social control, of decisions which would otherwise be made by individuals is a common theme in contemporary sociology. See, e.g., Irving Zola, “Medicine as an Institution of Social Control” in Conrad and Kern (eds.), The Sociology of Health and Illness (1981).
La. Rev. Stat. § 1299.35.4.
Ariz. Code § 36–2301.01(B); Ark. Code §41–2564; Mass. Ann. Laws ch. 112, §12(O); Mo. Rev. Stat. §188.030(2); Okla. Stat. Ann. Title 63 §1–732(D); Pa. Code §3210(b) [declared unconstitutional in Thornburgh]; Wis. Code 1985.
Fl. Stat. Ann. §390.001(5); Ill. Rev. Stat. Ch. 38, Par. 81–26(1)(1983) [declared unconstitutional on various grounds in Charles v. Daly, 749 F.2d 452 (7th Cir. 1984), appeal dismissed sub nom. Diamond v. Charles, 56 U.S.L.W. 4418 (April 29, 1986)]; Pa. Code § 3210(b).
Iowa Code Ann. §707.10; Ky. Rev. Stat. §311.780; Minn. Stat. Ann. §145.412 (3)(3).
Ch. 390.001(5).
Arizona; Arkansas; Illinois; Missouri; Wisconsin.
Massachusetts; Oklahoma; Pennsylvania.
Iowa; Kentucky; Minnesota.
With an ultrasound image, the size of certain fetal structures (usually the cranium and the crown-rump length) can be directly measured. These measurements are then compared to standardized charts (e.g., a certain cranial diameter correlates with a certain number of weeks of development). Although the measurements themselves are precise, the age estimates are based on averages; an equivalent process would be guessing the age of a teenager based on height—although 5′6″ might be the average height of Caucasian males at the age of 16, the particular 5′6″ boy might be a short 18 year old or tall 14 year old. See Rhoden, Trimesters and Technology: Revamping Roe v. Wade, 95 Yale Law Journal 639, 659 (1986).
See Rhoden, Trimesters and Technology: Revamping Roe v. Wade, 95 Yale Law Journal at 660.
Colautti v. Franklin, 439 U.S. at 396 n. 15.
See generally Lori Andrews’ position paper, “Alternative Modes of Reproduction,” in this book.
See Justice O’Connor’s dissent in City of Akron v. Akron Center for Reproductive Health, 462 U.S. at 457.
Roe v. Wade, 410 at 160.
The author of one of the articles cited by Justice O’Connor in her dissent in Akron stated: I know of no current research which would lead me to believe that a fetus of less than 22 weeks gestation can be or soon will be sustained outside the uterus... Below 24 weeks gestation, the fetus’ lungs are simply not adequately developed to sustain oxygenation even with ventilator support. Kopelman, letter to Nan D. Hunter.
Another author cited by Justice O’Connor stated: ... [i]t is highly likely that the lower limit beyond which human gestation is simply incapable of survival has already been virtually reached in its entirety, at least insofar as we intend such survival to be possible without the intervention of some form of artificial extrauterine environment that could be provided by the successful creation of an artificial placenta. Stern, letter to Nan D. Hunter.
For prostaglandin instillations, for example, contraindications include hypertension, asthma, glaucoma, and epilepsy. W. Hern, Abortion Practice (1984) at 125. Gastrointestinal side effects, sometimes severe and prolonged, are common in prostaglandin abortions; almost 50 percent of the patients experience nausea, vomiting, and/or diarrhea.
Kerenyi, “Intraamniotic Techniques” in Abortion and Sterilization: Medical and Social Aspects (J. Hodgson, ed. 1981) at 368. Hypertension is also a contraindication for saline injections, as are sickle cell disease, anemia, heart disease, kidney disease, and blood coagulopathy.
Kerenyi, “Hypertonic Saline Instillation” in G.S. Berger, et al., Second Trimester Abortions: Perspectives After a Decade’s Experience (1981) at 179. The most frequent complications are hemorrhage and infection. A disadvantage of both prostaglandin and saline procedures is the length of time patients are incapacitated. The overall injection to abortion interval is approximately 24 hours for saline (somewhat shorter if combined with oxytocin), and 16 hours for prostaglandin.
Binkin, Schulz, Grimes, and Cates, Urea-Prostaglandin Versus Hypertonic Saline For Instillation Abortion, 146 American Journal of Obstetrics and Gynecology 947, 949 (1983). Actual labor, which carries its own set of risks, may last 4–12 hours. Rooks and Cates, Emotional Impact of D & E vs. Instillation, 9 Family Planning Perspectives 276 (1977). The literature contains no contraindications based on the patient’s health condition for the use of D & E. As a surgical procedure, however, it always carries the risk of cervical laceration and even perforation. Other complications include excessive blood loss, hemorrhage, and pelvic infection.
Peterson, et al., Second Trimester Abortion by Dilatation and Evacuation: An Analysis of 11,747 Cases, 62 American Journal of Obstetrics and Gynecology 185 (1983). In assessing the advisability of using D & E, medical experts believe that the primary factor is the individual physician’s level of skill and training. Cates and Grimes, “Morbidity and Mortality of Abortion in the United States” in Abortion and Sterilization at 156–158.
Perhaps the strongest support for the patient’s right to decide is found in the line of cases authorizing the patient or a substituted party to order the withdrawal of life-sustaining technology. Tune v. Walter Reed Army Medical Center, 601 F. Supp. 1452 (D.D.C. 1985); Bouvia v. Superior Court of California, 225 Cal. Rptr. 297 (Ct. App. 1986); Bartling v. Superior Court, 163 Cal. App. 3d 193, 209 Cal. Rptr. 220 (1984); Superintendent of Belchertown v. Saikewicz, 370 N.E.2d 417 (Mass. 1977); Matter of Quinlan, 70 N.J. 10, 355 A.2d 647 (1976).
Grimes, Second Trimester Abortions in the United States at 262–3.
“Conscience means moral awareness, and liberty of conscience means the exercise of moral awareness. Abortion presents a matter for individual moral decision, in a matter of ultimate concern respecting bringing a life into the world.” Harris v. McRae, clergy testimony.
The following passage was contained in a letter written for the National Abortion Rights Action League “Silent No More” campaign, by a woman who was unable to obtain an abortion in 1951: I remember—and believe me, this is something one never forgets—my devastated father weeping over the news, the subterfuge and strategy involved in spiriting me out of sight, the lonely wait in a strange city, and the birth alone amongst strangers, completely devoid of the joy which should rightly accompany this event, the pressure to relinquish my daughter for adoption, then the time of agonizing readjustment, which phased into acceptance but left a never-totally assuaged sense of loss.
See Harrison, Our Right to Choose: Toward a New Ethic of Abortion (1983)
Fost, Chudwin, and Wilder, The Limited Moral Significance of Fetal Viability, 10 Hastings Center Report, December 1980, pp. 10–13;
Macklin, Personhood in Bioethics Literature, 61 Milbank Memorial Fund Quarterly 35 (Winter 1983).
A child born with Tay-Sachs disease for example, with a life expectancy of four years, was found to suffer ... from mental retardation, susceptibility to other diseases, convulsions, sluggishness, apathy, failure to fix objects with her eyes, inability to take an interest in her surroundings, loss of motor reactions, inability to sit up or hold her head up, loss of weight, muscle atrophy, blindness, pseudobulper palsy, inability to feed orally, decerebrate rigidity, and gross physical deformity. Curlender v. Bio Science Laboratories, 106 Cal. App. 3d 811, 165 Cal. Rptr. 477, 480–1 (1980).
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Hunter, N.D. (1989). Time Limits on Abortion. In: Cohen, S., Taub, N. (eds) Reproductive Laws for the 1990s. Contemporary Issues in Biomedicine, Ethics, and Society. Humana Press. https://doi.org/10.1007/978-1-4612-3710-5_5
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