Friday, August 1, 2014

Doe takes Roe from Bad to Worse

[Today's guest post by Chris Rostenberg is part of our paid blogging program.]

When I first heard, in the 1990’s, that abortion was legal through all nine months of pregnancy, I couldn’t believe it. If that were true, why would it not be common knowledge? Why would there be debate over where life began?

I had just abandoned the pro-choice movement and was researching the pro-life position. I was finding most of what they said quite persuasive. But how could abortion be legal until birth? Many other people who I have spoken to also could not believe the law could be so extreme. So I snuck into a local law library and read Roe vs. Wade—and, importantly, I also read its companion case, Doe vs. Bolton. I discovered that the pro-lifers were telling the truth: abortion really is legal through all nine months, in every state, for any reason, and has been since 1973.

Either by design or by accident (and my vote is for the former), our law is confusing in the extreme. The Supreme Court in Roe vs. Wade made it seem as if only early abortion was legal, saying that the states, if they wished, could make late abortion illegal. They can’t. The moderate-sounding threads of the Roe opinion are completely unraveled in Doe.

The details are important. Roe said the states could make third trimester abortion illegal unless the woman’s “life or health” was endangered. (We should already be suspicious; why mention “life” if “health” is enough to get a third trimester abortion? If a woman’s life is endangered, surely her health is too.) The Roe opinion says that it should be "read together" with Doe—and in Doe, the Supreme Court defined “health” as “all factors, physical, emotional, psychological and familial," including the woman’s marital status and age.

So to recap, the states can prohibit late abortion... except when one of “all factors” comes to pass. Which is a really convoluted way of saying that the states cannot prohibit late abortion.

The Justices did not need to write their opinions in such a confusing way, of course. The whole thing could have been resolved by including the definition of "health" within the main Roe opinion. The only reason to go about it the way they did is to make it easier for the abortion movement, and its allies in the media, to conceal how extreme the law is.

To take but one example: in his presidential debate with Senator McCain, then-Senator Obama said, “I am completely supportive of a ban on late term abortion … as long as there’s an exception for the woman’s health and life.” As a former law professor, Obama knew exactly what that really meant. But McCain had trouble explaining the health loophole, because it's too complicated to fit into a 15-second sound bite.

The Supreme Court backed off slightly in Gonzales v. Carhart, the partial-birth abortion case, but for all other abortion methods the "health" loophole remains wide enough to drive trucks through. We'll soon find out whether or not the current Court is committed to keeping up the charade. In recent years, several states, working together with pro-life legal scholars, have passed laws banning abortions after 20 weeks. One or more of those laws will surely find its way to the High Court, and when it does, we must take full advantage of the opportunity to educate the public. Because for over 40 years, the media has consistently failed to accurately report on the reality of American abortion law. If it had, people would know that Doe instituted legal abortion through all nine months of pregnancy. As it stands, many Americans have never even heard of Doe!


Acyutananda said...

Doe does not allow the states to enact meaningful laws to protect the unborn. Which states have chosen to enact no laws at all?

Where can I find a good state-by-state summary of laws arguably enacted under Roe's late-term abortion clause (as watered down by Doe)?

(I am not asking about laws that may indirectly reduce abortions by setting medical standards, requiring sonograms, etc.)

Kelsey said...

AUL has a state-by-state analysis for all abortion-related laws; both what you're looking for, and regulations permitted by Casey.

Acyutananda said...

Thanks. That's exactly what I wanted.

I was surprised that the worst state, Washington, has a law that "No abortion may be performed after viability unless necessary to protect the woman’s life or health," and Calif. has something similar. Hollow though those laws may be, in light of Doe, those states were not required to enact anything even suggesting protection of the unborn.

No abortion may be performed after viability
unless necessary to protect the woman’s life or
No abortion may be performed after viability
unless necessary to protect the woman’s life or

JDC said...

True. Granted, Doe made it so that any law with a "life and health" exception is really no protection at all.

someone45 said...

So you care nothing about the protection of the health and life of the pregnant woman? It is all about protecting the fetus for you?

Michelle Ewing said...

When health means she has dandruff or isnt married, then no, im not for protecting the mothers health. Also at late stages it would be just as safe (if not more) to deliver the baby.

Acyutananda said...

Of course we should protect both. But Michelle Ewing's answer was good. The main point of the article was that thanks to Doe, "the protection of the health and life of the pregnant woman" means, for all legal intents and purposes, the protection of abortion on demand.

someone45 said...

No woman is going to carry a pregnancy to the third trimester and just decide she does not want to be pregnant any more. 99.99% of abortions that late of for the health of the woman or a fetal defect.

someone45 said...

The life of the pregnant woman should come first. She is the one with an actual life and she should not be forced to risk her life for the potential life.

Coyote said...

"No woman is going to carry a pregnancy to the third trimester and just decide she does not want to be pregnant any more."

Unless circumstances in her life (dramatically and/or surprisingly) change and/or there is a shortage of adoptive parents.

someone45 said...

"there is a shortage of adoptive parents.">> So what happened to the claim that there is a waiting list for people just waiting to adopt the unwanted babies?

Besides I would rather risk one woman having an abortion for that reason in the third trimester instead of not allowing it and having many women die because they were denied an abortion.

Acyutananda said...

The fetus is not alive?

dudebro said...

If its viable, it can be delivered.

Guest said...

Potter's Syndrome isn't always fatal. Were you asleep when all the pro-choicers got really mad because Rep. Beutler decided not to be a good woman and have an abortion?

someone45 said...

It is not a viable human being and its right to life should not come at the cost of the life of the pregnant woman.

dudebro said...

Well it's a good thing that you have zero sympathy for the suffering woman.

Keep on truckin!

someone45 said...

To anti-choicers the pregnant woman is only a thing incubating the fetus until it can be born. She means nothing to them.

Acyutananda said...

I would go farther than you and say that even in the cases of those unborn children who are viable, their right to life should not come at the cost of the life of the pregnant woman. However, "life" is not the issue we have been discussing, but rather "health" as defined by Doe. (I had said that Washington's law "No abortion may be performed after viability unless necessary to protect the woman’s life or health" was hollow, meaning that it pretends to protect the viable unborn but really provides no protection, because in the exception "unless necessary to protect the woman’s life or health," "health" can mean anything -- such as dandruff. Any apparent protection for the unborn disappears.) My criticism was about the Doe interpretation of "health," not "life," and you seemed to have been defending Doe against my criticism, thus defending the Doe interpretation of "health."

Anyway, now that you have clarified that the unborn is alive, it is clear that when you say, "the potential life" of the unborn, you mean that some of the development of the unborn is still potential. This is true.

But whatever benefits of life or health a woman will obtain from an abortion, those benefits lie at least somewhat in her future. The woman does not feel improved health while lying on the operating table, or filling out forms, or paying her money. Those things are an investment for her future, her potential. In other words, she is getting an abortion in order to realize her potential.

So essentially you are saying:

1. the potential of a woman should be taken into account, and therefore she has a right to kill her unborn child

2. it's okay to kill an unborn child, because its potential should not be taken into account.

Any reason that might be given for abortion always gives weight to the woman's future, her potential.

Ann Morgan said...

I don't know. Is an ova alive? If so, why shouldn't it have it's 'right to life' (meaning a woman should be required by law to concieve every time she ovulates lest the ova die and be menstrated out) protected? Other than it inconveniencing the right-to-lifers whose real agenda is punishment for sex.

Acyutananda said...

You've arrived in the middle of a discussion. Perhaps you got the impression that I was saying that everything alive should be protected. No, I wasn't saying that.

Ann Morgan said...

Oh, I am well aware of that. The so-called 'right-to-lifers' always gerrymander away the right to life of homeless people, 3rd world children, ova, and anything else that might require any sacrifice or inconvenience on their part.

dudebro said...

And there are different varieties of Potter's Syndrome, the majority of which are always fatal:

In recorded medical and research history BRA has proved to be lethal
in all cases of singleton births. Various other forms of the sequence
are, or are near, lethal in 100% of the cases.
An infant girl born in July 2013 to US Congresswoman Jaime Herrera Beutler has the condition and is still alive as of May 2014.
A few weeks before she was born, a new experimental procedure was
performed on the baby. A saline solution was injected on several
instances into the mother's womb to help the baby's lungs to develop.
After she was born, the procedure was considered a success. The infant did not need artificial respiration and could breathe on her own. She is now on kidney dialysis and is awaiting a kidney transplant between the ages of one and two

So yeah, if you have the resources, and access to the top doctors in the world, then maybe, just maybe, the experimental cure MIGHT work.

Ann Morgan said...

No. The point of both posts is that not all life, not even all 'human life' is protected, particularly when the human in question does not have a functioning brain, and that the 'right to life' is not synonymous with a blank check claim on other people's organs or property merely because they are 'needed' to save that life, and the so-called 'pro-lifers' constantly and hypocritically gerrymander the definition of which 'human lives' must be protected at the cost of whose expense, responsibility, and sacrifice, so that it includes SOME 'human life' without a mind, but strangely, only that 'human life' - specifically embryos - which allows them to punish people for having sex, but not such 'human life' as ova or sperm, the 'protection' of which might possibly inconvenience them, and also when it comes to humans who do have a mind, it apparently includes random toddlers in people's garages and on busy streets, but not homeless people or toddlers in 3rd world countries whose 'right to life' might come at some cost to the pro-lifers.

The ONLY consistent criteria in the 'lives' that pro-lifers want to 'protect' is that either protecting the 'lives' acts as an excuse for punishing people for having sex, and that the cost of protecting those 'lives' be borne by anyone and everyone EXCEPT themselves. There is no other possible criteria that explains all the complex gerrymandering, such as the claim by Myintx that a toddler in a 3rd world country is somehow 'different' than a toddler in the garage of someone other than herself.

dudebro said...

i am currently talking to a poster on another board who sadly shook her head at me, sighing about how callous I could be, for daring to compare the life of a severely disabled child to financial concerns. Surely life *always* trumps mere financial concerns, yes?

I told her that if resources are infinite, then she should mortgage her house and pay to save the life of a sick child somewhere - be it medication or surgery. Surely, she should be able to remake any money spent, since finances are literally a non-issue when it comes to saving a life!

She, not surprisingly, refused to do so, and stated that handing out bibles and food at the soup kitchen is all that she needs to do and besides, unless *I* have mortgaged my house out who am I to talk??


Michelle Ewing said...

My aunt had an autoimmune disease caused by her being pregnant with her son. in her second trimester she got put on bed rest. this caused painful bed sores and loss of muscle. at the same time her liver and kidneys were starting to shut down. she managed to carry her son to 25 weeks and gave birth to him via C-section and they are both perfectly healthy.

This kind of stuff is what makes many pro lifers think that abortion is not needed. but my aunt and her son were a medical miracle. in a typical case the mother would not make a full recovery carrying the child that far, she would be risking her life, and she may never be able to work again because of health issues. the child would normally have a 50/50 chance of living and have live long health problems if they did survive. if my aunt chose to abort her son, I would want it to be legal.

Cases like this is what the health exception should be for, but Doe made it so any thing regarding health, no matter how small, no matter if it even relates to the pregnancy or not, you can have an abortion up until birth.

Acyutananda said...

If I run into any pro-lifers whose views match your picture, I will pass on your remarks. Regarding anything I have said myself, the only point you seem to disagree with is that the unborn should normally be protected. You express some concern about some people's lives, and a refusal to help with costs is not by definition part of the pro-life position, so why your unconcern about the unborn? You suggest that those humans with less brain development should be considered inferior. Regarding that, please see my reply below to someone45 ("I would go farther than you . . .").

dudebro said...

and a refusal to help with costs is not by definition part of the pro-life position

Not by definition, no, but in practical terms, pro-life tends to coincide with an utter disregard for the wellbeing of others.

Acyutananda said...

Guttmacher Institute statistics?

Even if what you say were true, it wouldn't vindicate Doe or Roe.

lady_black said...

How perfectly HORRIBLE of you to give this insensitive answer! This woman is being forced to carry to term, knowing she will give birth at risk to her own life, and plan a funeral in the same week. How cruel of you. No compassion for this woman or her family for the mental torture they are going through. You're a MIRACLE. No heart and no brain, yet you go on living.

lady_black said...

Yeah, states are NOT required to enact laws to "protect the unborn" because you can't do that. The woman still has bodily autonomy rights. Learn to live with the disappointment that women aren't property.

lady_black said...

Of course the fetus is alive. I am STILL not obligated to bodily donation for the benefit of the fetus, just as I am not obligated to bodily donation to benefit YOU, and there is no doubt you're alive.

lady_black said...

Doe and Roe don't need vindication. The woman comes first. PERIOD.

Acyutananda said...

I was replying to someone45, whose argument, at that point, seemed to be that the pregnant woman should come first because she is alive and the fetus is not. (In reply to my question, someone45 later clarified their position.)

Your argument is different. Regarding the bodily-rights argument, I have written here: said...

Only to possibly be miserable later on due to being unwanted. said...

"So what happened to the claim that there is a waiting list for people just waiting to adopt the unwanted babies?"

My scenario here was *hypothetical.*

"Besides I would rather risk one woman having an abortion for that reason
in the third trimester instead of not allowing it and having many women
die because they were denied an abortion."

Thank you for your response here.