Abortion and Mental Health: HB 727

StBlogostine's Pic of IRMA women-men 2011 MFLDue to some unforeseen transportation issues, I was unable to make it to the Capitol in time to testify on HB 727. But I still think its important to educate people on why this bill is neccessary, so I’m going to share the testimony I had planned, which I will save for the Senate Committee. So here goes…

 

Dr. Mary Calderone, the former medical director of Planned Parenthood, once admitted: “…in almost every case, abortion, whether legal or illegal, is a traumatic experience that may have severe consequences later on.”[1] And she was correct- in addition to the many other health risks associated with induced abortion, there is a documented risk of increased mental health issues such as depression, drug abuse, and suicide. My name is Deanna Candler, I am a law student at LSU, and I’m here today on behalf of Law Students for Life of America, in support of this bill, because Louisiana women deserve to receive informed consent about the mental health risks associated with abortion.

In his book Abuse of Discretion, attorney Clarke Forsythe points to the fact that there have been more than one hundred peer-reviewed studies, published in international medical journals, suggesting an association between abortion and adverse mental health outcomes.[2] Among these studies are:

  • A 2000 study in the American Journal of Drug & Alcohol Abuse finding a “five-fold increased incidence of abuse of alcohol and drugs in those who had aborted compared to those who carried to term.
  • A 2004 study in American Journal of Drug & Alcohol Abuse that found that women who had abortions had a higher rate of subsequent substance abuse than women who had never been pregnant or women who gave birth after unexpected pregnancies.
  • A 2003 Obb-stet-trick-cal & Gynecological Survey found that “induced abortion increased…[the incidence of] mood disorders substantial enough to provoke attempts of self-harm.”
  • A study in the Medical Science Monitor found that women with a history of abortion have a significantly higher risk of experiencing clinical depression than women who carry their children to term. This study was reinforced by a 2005 study in the Journal of Anxiety Disorders.
  • A 2006 study in the Journal of Child Psychology and Psychiatry that concluded “young women who aborted were at a higher risk for various mental health problems compared to women who carried to term…” including:

o   42% reported major depression

o   39% suffered from anxiety disorders, and

o   27% reported suicidal ideation.

  • 2010 study in the Canadian Journal of Psychiatry found that “abortion was associated with an increased likelihood of several mental disorders- mood disorders… substance use disorders…as well as suicidal ideation and suicide attempts.”
  • a 2011 study in the British Journal of Psychiatry, which is a publication of Britain’s Royal College of Psychiatrists, showed a moderate to high increased risk of mental health problems after abortion, specifically:

o   34% higher risk of anxiety

o    30% higher risk of depression

o   110% higher rate of alcohol use

o   220% higher marijuana use

o   155% higher risk of suicidal behavior.

In addition to the studies cited by Forscythe, I’ve provided you with a list of publications dealing with the mental health risks of abortion; this list was compiled by the American Association of Pro-Life Obstetricians and Gynecologists.

In upholding informed consent in Planned Parenthood v. Casey, the Supreme Court stated that “In attempting to ensure that a woman apprehend the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed.”[3] The proposed legislation would uphold the Court’s standard on informed consent, and should be passed to protect Louisiana women.

 

 

 

[1] Calderone, Illegal Abortion as a Public Health Problem, at 951

[2] Forsythe, Clarke D. (2013-09-24). Abuse of Discretion: The Inside Story of Roe v. Wade

[3] Planned Parenthood v. Casey 505 U.S. 833, 882 (1992)

 

The Viability of Roe, Part 5: Is Abortion Good for Women?

Image

“All factors-physical, emotional, psychological, familial, and the woman’s age-relevant to the well-being of the patient…”[1]

“Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases … the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.”[2]

These are the words used by Justice Blackmun in Roe and her companion case Doe v Bolton, to describe the so-called “health exception” in regards to the right to abortion. Additionally, Justice Blackmun implied that abortion was safer for the mother[3]. He also repeats this and go, saying that “advances in medicine and medical techniques have made it safer for a woman to have a medically induced abortion than for her to bear a child.”[4] But the credibility of these sources cited in regards to this claim, has been seriously called into question by many people.[5] Even today, maternal mortality and abortion mortality rates cannot be compared, due to the fact that neither federal nor state governments maintain any system of human form and mandatory reporting of abortion deaths or injuries. The Centers for Disease Control and Prevention depends completely on voluntary reporting systems and estimates the maternal deaths are underreported by 30 to 150 percent.[6] also things that have nothing to do with the biological risks of pregnancy, such as accidents, and homicides are also included in maternal death figures, this means that maternal death numbers are likely inflated, while the lack of reporting requirements means that abortion death figures are likely under  reported.[7]

Even Planned Parenthood, the nation’s largest abortion provider, acknowledges that abortion has many short-term risks, including blood loss, blood clots, incomplete abortions (which occur when part of the unborn child or other products of pregnancy are not completely emptied from the uterus), infections, and injury to the cervix or other organs, including cervical lacerations and incompetent cervix – a condition that can also affect subsequent pregnancies.[8]

Additionally, at that time there had been no studies done on the long-term effects abortion can have on women, both physically and emotionally. In the more than 40 years since Roe, doctors and psychologists have documented at least six long-term risks associated with abortion[9]:

  • Increased risk of preterm birth or premature delivery and future pregnancies.
  • Increased risk of placenta previa and future pregnancies.[10]
  • Increased incidence of drug and alcohol abuse.
  • Increased risk of suicide in psychiatric admission after abortion.
  • Loss of the protective effect against breast cancer of the first full term pregnancy.
  • Increased risk of violence and assault after abortion

Preterm birth occurs when the child is born prior to the 37th week of pregnancy, and it is very dangerous to the child. In fact, according to the US Center for Disease Control premature birth is a leading cause of infant mortality in the United States.[11] Preterm birth can also be a risk factor for later disabilities, including cerebral palsy and behavior problems in the child.[12]

As of right now over 130 published studies have shown statistically significant association between induced abortion and subsequent preterm birth or low birth weight. Three different systematic studies were performed in 2009, and each one demonstrated the risk of preterm birth following induced abortions.[13] The increased risk of preterm birth in these studies fell between 20% and 37%, increasing exponentially to over 100% when the woman had multiple abortions. The Institute of Medicine, a section within the National Academy of Science, also lists first trimester abortion as a risk factor for subsequent preterm birth. [14]

Placenta previa, which is when the placenta covers all or some of the cervix, is another condition associated with previous abortions that can cause serious health risks for women. The mother can experience life-threatening hemorrhaging, and the child is placed in danger of perinatal death or medically indicated preterm birth.[15] Three separate studies showed a 50 percent increase in the risk of placenta previa after an induced abortion,[16] while another study found that the risk of placenta previa can more than double when the mother has had two or more abortions.[17]

The link between breast cancer and abortion has been hotly contested over the years, but it is scientifically indisputable, that a woman’s first full-term pregnancy can reduce her lifetime risk of breast cancer.[18] A 2003 study concluded that “clinicians are obligated to inform a pregnant woman that a decision to abort her first pregnancy. They almost doubled her lifetime risk of breast cancer through loss of the protective effect of a completed full-term pregnancy earlier in life.”[19] Additionally, at least thirty-one studies have raised the possibility that induced abortion is an “independent risk” for breast cancer, or that induced abortion can directly cause breast cancer.[20]

One of the most disturbing consequences of abortion is the mental health impact. While Justice Blackmun focused on the opinion that pregnancy and motherhood could lead to psychological distress or harm, we now have evidence that abortion increases a woman’s risk of mental health problems. As Dr. Mary Calderone, the former medical director of Planned Parenthood, once admitted: “…in almost every case, abortion, whether legal or illegal, is a traumatic experience that may have severe consequences later on.”[21]

In 2011, a groundbreaking study on the effects of abortion on mental health was published in the British Journal of psychiatry, which is a publication of Britain’s Royal College of Psychiatrists. The results of this study showed a moderate to high increased risk of mental health problems after abortion, specifically a 34% higher risk of anxiety, 30% higher risk of depression, 110% higher rate of alcohol use, 220% higher marijuana use, and 155% higher risk of suicidal behavior.[22] In fact, in his book Abuse of Discretion, Clarke Forsythe points to the fact that there have been more than one hundred peer-reviewed studies published in international medical journals, suggesting an association between abortion and adverse mental health outcomes.[23]

Recently there have been disturbing cases of men attempting to force or trick their partners into abortions, such as New York pharmacist Orbin Tercero, who was convicted in 2011 of lacing his partners drink with an abortive drug or Thomas Hill, who sexually assaulted his partner in front of their children after she refused to get an abortion for a subsequent pregnancy.[24]

While not all studies agree with these outcomes, and some come down on both sides of the issue, there’s clearly a need for further research into this issue. At the very least, these studies suggest that the Supreme Court was too hasty in supposing that abortion was good for women.

 

[1]

[2] Doe, 410 US at 192

[3] Roe, 410 US at 149

[4] Doe, 410 US at 190

[5] Abuse of discretion, pages 155-180

[6] Letter of Julie Louise Gerberding, M.D., M.P.H, , director, Centers for Disease Control, July 20, 2004, reprinted in brief amicus cure I have the American Center for Law and Justice in Gonzales v. Carhart, 550 US 124 (2007), Gonzales v Planned Parenthood Federation of America, 2005 US briefs, 1382.

[7] Abuse of discretion, page 175.

[8] See http://www.plannedparenthood.org/health-topics/abortion/in-clinic-abortion-procedures-4359.asp

[9] The cost of choice (Erika bachioci); Reardon, strahan, thorpe and shuping, deaths associated with abortion compared to childbirth, 20 J.contemporary health law and policy, 279, spring 2004; Clarke Forsythe and Stephen B Presser, tragic failure of Roe V Wade: why abortion should be returned to the states, 10 Texas review of law and policy, 87, 2005; abuse of discretion, pages 155 through 180;  Thorpe, hartmann and shadigian, “long-term physical and psychological health consequences of induced abortion.

[11] Jim Thorpe et al, long-term physical and psychological health consequences of induced abortions: review of the evidence, obstrectial and gynecological survey 58(1):67, 68 (2003).

[12] W.M. Callaghan, contribution of preterm birth to infant mortality rates in the US, pediatrics 118(4): 1566 (oct 2006); B.Rooney & B.C Calhoun, induced abortion and risk of  later premature births. Physicisans & Surgeons 8(2): 46, 46-47 (2003).

[13] P. shah et al. induced termination of pregnancy and low birth weight and preterm birth: a systematic review and meta-analysis, B.J.O.G. 116(11):1425 (2009); R.H. van Oppenraaij et al, predicting adverse obstetric outcome after early pregnancy events and complications: a review, Human Reproduction. Update Advance Access 1:1 (Mar. 7, 2009); H.M. Swingle et al., Abortion and the Risk of Subsequent preterm Birth: a systematic review and meta-analysis, J. Repro. Med. 54:95 (2009).

[14] R.E. Behrman, Preterm Birth: Casues, Consequences and Prevention 519 (2006)

[15] J.M Thorpe et al., supra at 75.

[16] see  Forsythe abuse of discretion, page 255

[17] J.M. Thorpe et al., supra at 70-71

[18] Reeves, Kan, Key, et al., Breast Cancer Risk in Relation to Abortion, at 1741. See also Forscythe, Abuse of Discretion, supra pg 263-4

[19] JM Thorpe et al., supra, at 76

[20] See generally, Lanfranchi, The Abortion-Breast Cancer Link; M.C. Pike et al. Oral Contraceotive Use and Early Abortion as Risj Factors for Breast Cancer in Young Women, British Journal of Cancer 43 (1981); L.A. Brinton et al., Reproductive Factors in the Etiology of Breast Cancer, British Journal of Cancer 47 (1983)

[21] Calderone, illegal abortion as a public health problem, at 951.

[22] P. Coleman, Abortion and mental health: quantitative synthesis and analysis of research published 1995-2009, BJP 199:180-186 (2011)

[23] Page 257 ,citing  Letter to office of the United Nations High Commissioner on human rights, November 27, 2009 attachment  two, available at http://www.aaplog.org/internationalissues/aaplog-objection-to-incusion-of-universal-acess-to-reproductive-healthcare-as-a-part-of-mdg-5-letter-to-un-high-commissioner-on-human-rights/.see, e.g., Berlin at all, reasons for induced abortion, 36; Cougle, Rearden and Coleman, generalized anxiety following unintended pregnancies; Gissler et al., injury, death, suicides and homicide; Bradshaw and Slade, the effects of induced abortion or emotional experiences and relationships.

[24] Forsythe, Clarke D. (2013-09-24). Abuse of Discretion: The Inside Story of Roe v. Wade (p. 442). Encounter Books. Kindle Edition.

Over The Edge for Adoption

Over The Edge for Adoption

 

I’ve previously shared with ya’ll that I am adopted, and now I want to ask for your help to connect other foster kids with their forever homes. Currently there are are more than 500 children in Louisiana waiting for their chance at a home like mine, and I want to help by participating in “Over the Edge for Adoption” with Louisiana Family Forum! Please consider donating if you can, or help by sharing with your friends who may be able to contribute! Thank you! 

Testimony on HB 388 before the LA House Health & Welfare Committee

Deanna Candler & HB388 Sponsor Rep. Katrina Jackson before the House Health & Welfare Committee

Deanna Candler & HB388 Sponsor Rep. Katrina Jackson before the House Health & Welfare Committee

My name is Deanna Candler, I am a resident of Baton Rouge, Louisiana, a law student at LSU, and am representing Law Students for Life of America. I am here today to support the proposed regulations in HB 388.

Ladies and gentleman of the committee, you will hear today that these regulations are medically unnecessary, but this simply isn’t true. The proposed regulations are common sense regulations that would protect the health of women who undergo procedures in these clinics.

These regulations are needed in Louisiana- this need is evidenced by the history of violations and complaints against Baton Rouge’s own abortion facility, the Delta Clinic. The Delta Clinic has a history of botched abortions, unsanitary conditions, multiple violations, as well as of protecting rapists, going back to 1974, and continuing to the present day. Additionally, the Delta Clinic previously employed a woman by the name of Eileen O’Neill, who after leaving the Delta Clinic, surrendered her medical license due to Post Traumatic Stress Disorder. Ms. O’Neill  went on to practice medicine without a license, in the Philadelphia abortion clinic of Kermit Gosnell, who was convicted of murdering innocent children who were born as a result of botched abortions, and causing the death of and  countless injuries to, the women who visited his clinic.

The women of Louisiana deserve to be protected when they walk into an abortion clinic, and this regulation would do much to assure their safety.

From a legal standpoint, this regulation will not violate the standards set up by the Supreme Court. In the landmark case, Planned Parenthood v Casey, the Supreme Court noted that “not all burdens on the right to decide whether to terminate a pregnancy will be undue,” and acknowledged that a state’s interests in protecting unborn life,  in preserving the integrity of the medical profession, preventing the coarsening of society’s moral sense, and promoting respect for human life more generally, are strong enough to warrant restrictions prior to viability, even if those regulations might make abortion more difficult or expensive to obtain.

Justice Kennedy also pointed out in the 2007 case Gonzales v. Carhart, that “Medical uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does in other contexts,’ stating that State legislatures are empowered to make their own determinations of what regulations and restrictions are medically necessary.

Under these principles, the Supreme Court has upheld many abortion restrictions and regulations, including informed consent requirements, waiting periods, parental consent for minors, reporting requirements for clinics, funding restrictions, and even a total ban on partial birth abortion.

Requiring doctors to obtain admitting privileges at local hospitals would serve to protect the health and safety of Louisiana women, and since they do not violate the principles the Supreme Court follows in determining whether an abortion regulation is an “undue burden”, I ask you to support this bill.

The Viability of Roe, Part 4: The Misinterpretation of Legal Personhood

Another aspect important to an historical analysis of abortion is that there was widespread disapproval and prohibition of abortion during early pregnancy before, in the view of the science of the time, human life had been infused. Our ancestors’ biologically incorrect notions of when human life begins led Blackmun to assert that, historically, “abortion was viewed with less disfavor than under most American statutes currently in effect” (in January, 1973) and “[p]hrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does … today.”[1]

Regarding this important question, scholarly research reveals that recognition of the unborn as “persons in the whole sense” was largely determined by the biological and medical knowledge of each historical era[2]. The ovum and the actual nature of fertilization were not discovered until the nineteenth century, and prior to this, scientists and contemporaneous jurists supposed that human life commenced at “formation,” “animation,” or “quickening.” Abortion was seen as unquestionably homicidal only after the gestational point at which, in light of the science of the time, human life was finally understood to be present. [3]

Many legal scholars have pointed out that other areas of law, such as torts property and criminal law, all recognize the unborn child as a person with legal protections under the law.

[M]edical authority has recognized long sense that the child is in existence from the moment of conception, and for many purposes. It existence is recognized by the law. The criminal law regards it as a separate entity, and the law of property considers it in being for all purposes which are to its benefit, such as taking by will or dissent… All writers who discuss the problem have joined in condemning the old rule, and maintaining that the unborn child out of an automobile is as much a person in the street as the mother. [4]

In reference to property law, in 1941, a New York Court stated: “it has been the uniform and unvarying decision of all common law courts in respect of the state matters for at least the past two hundred years that a child en ventre sa mère (in its mother’s womb) is ‘born’ and ‘alive’ for all purposes for his benefit.”[5]

The rules of property law have not changed, and pre-born children are still afforded their just legal protections. If property law recognizes the rights of a child in its mother’s womb, it makes no sense that the court would deny them, especially since property was not the only area of law in which those rights were recognized.

By 1971, twenty-nine states and the District of Columbia allowed suits for prenatal injuries based on tort law, and an additional nine rejected the viability distinction and allowing recovery[6]. In 1953, a New York State appellate court found that:

We ought to be safe in this respect. In saying that legal separability should begin where there is biological separability. We know something more of the actual process of conception and foetal development now than when some of the common-law cases were decided; and what we know makes it possible to demonstrate clearly that separability begins at conception.[7]

This rationale was also stated by the Pennsylvania Supreme Court in 1960:

As for the notion that the child must have been viable when the injuries were received, which is claimed the attention of several of the states, we regard it as having little to do with the basic right to recover, when the foetus is regarded as having existence as a separate creature from the moment of conception.[8]

Today, only three states do not provide tort claims for prenatal injuries, nearly 3 thirty states allow for recovery at any point in the pregnancy[9]. This is yet another example of the schizophrenic nature of the Supreme Court denying pre-born children recognition under the law, when the law of torts clearly recognized their rights.

In criminal law, the quickening distinction was dropped my most a legislatures by the 1860s as medical science progressed, and today thirty-eight states have abolished the born alive rule in the lower prosecution for fetal homicide at any time in the pregnancy.[10]him him

Justice Blackmun, writing for the court in Roe, stated that the court did not need to decide the “difficult” question of when life begins, but this is the most important question to be decided. Because it is not the courts job to decide what philosophy or religion is correct, it must be scientific fact which dictates who is covered by the Constitution.  There is no doubt that human life begins at conception (also called fertilization), and even the most cursory glance into the science of fetal development would confirm this fact.[11] The court gave no rationalization for why a human and a person were separate entities, that required separate legal protections under the law, and many have criticized this distinction as similar to the one the Court made in Dred v Scott.[12]


[1] Roe

[2] Roger Resler, Compelling Interest, page 19 – 30

[3] Compelling Interest, page 26

[4] Prof. William Prosser Law of Torts at 335.

[5] In re Holtenhausen’s Will, 175 Misc. 1022, 26 N.Y.S.2d  140 (NY Surr. Ct. 1941).

[6] Abuse of Discretion , page 275

[7] Kelly v. Gregory, 282 App.Div. 542, 125 NYS.2d 696, 697 (1953).

[8]Sinkler v Kneale, 401 Pa. 267, 164 A.2d 93, 96 (1960)

[9] Abuse  of Discretion, page 283 figure 7.

[10] Abuse of Discretion, page 284-5  figure 9.

[11] See e.g.  http://www.princeton.edu/~prolife/articles/embryoquotes2.html (a compilation of quotes from recognized medical textbooks and authorities,  on when human life begins)

[12] See e.g Compelling Interest, page 20;  Justice Scalia’s dissent in Planned Parenthood v. Casey at 998

The Viability of Roe, Part 3: How Roe Re-wrote History

579240-closeup-picture-of-a-row-of-old-history-booksThe court begins its discussion of the merits of the original abortion case, Roe by looking at the history of abortion. While the court notes that it is universally accepted that abortion after quickening (the first movements felt in utero at about 16-18 weeks) was a crime at common law throughout history, they seem unable to decide whether this matters, and rely heavily on two articles by Cyril Means Jr. who was general counsel for NARAL[1].  Means research had a decidedly pro-abortion slant and has been criticized by many.  In fact in 2006 Joseph Dellapenna a professor at Villanova law school wrote a scathing 1200 page book refuting the “history” used in the Roe decision[2].  Historical research that was available in 1973 and has been undertaken since that time has repudiated virtually all of the court’s historical claims.[3]

For instance, apart from remarking that the Persian Empire banned abortion, Justice Blackmun’s survey of the ancient world was limited to Greece and Rome. Yet, numerous other sources indicate that abortion was condemned in the twelfth century B.C. by Assyrians, Hittites, early Hindus, Buddhists of India, and Indian law; and there is some evidence that the ancient Egyptians took a similar attitude.[4] This information was included in the works of Eugene Quay, who Blackmun cited, but failed to incorporate into his opinion.[5]

Despite the availability of other historical sources, Justice Blackmun left a gap of more than a thousand years in his survey of history, jumping from his discussion of ancient attitudes straight to Anglo-American common-law; during this thousand year period, history tells us that the majority of the world opposed abortion.[6]

The Court also claimed that prior to quickening abortion was not indictable offense under law again relying on means his article. However, English common law clearly prohibited abortion and the American colonies adopted this common law.

Before the debate about abortion began in earnest in the 1960s, it was accepted by lawyers, both ‘prolife‘ and ‘pro-choice,‘ that abortion had been prohibited by Anglo-American criminal law for 700 years and that the law’s main, if not sole, purpose was protection of the fetus.  In the 1950s Glanville Williams, the eminent Cambridge University law professor and vigorous pro-choice activist, explained the rationale of the anti-abortion legislation permeating the U.S. and England. The fetus, he wrote, ‘is a human life to be protected by the criminal law from the moment when the ovum is fertilized. ‘[7]

Another part of this “historical survey” involved the legislative history of the Texas abortion law and others like it. This legislative history was later the foundation for the court’s decision regarding personhood of the unborn child. Up until the 1960s, all but a few of the 50 states prohibited abortion except when it was necessary to save the life of the mother[8]. These abortion laws were enforced, updated and strengthened during the nineteenth century as medical understanding progressed[9].  In the oral arguments, Roe’s lawyers argued that most state laws against abortion were implemented solely to protect the woman.  This could not be further from the truth.  In fact, Justice Blackmun acknowledged that it was the attitude of the medical profession that played a significant role in the enactment of the stringent criminal abortion legislation of the late 1800s, and even quoted the American Medical Association’s 1857 report on criminal abortion., in which the AMA called abortion an” unwarrantable destruction of human life,” and called to upon state legislatures to revise their abortion laws and encouraged state medical societies to press the subject.[10]

Clearly, the historical research on which Justice Blackmun relied was at best biased and incomplete, and at worst was a complete revisionist history concocted with the sole purpose of justifying the abortion decision.


[1] Means’ two history articles were funded by the pro-abortion advocacy group, Association for the Study of Part II: Abortion (ASA).  See JOSEPH DELLAPENNA, “Dispelling the Myths of Abortion History” (2006) note 40 at 14, 143-44, 1004.  Justice Blackmun cited Means‘ two articles a total of seven times, and no other source on the history of abortion more than once.  See Roe, 410 U.S. at 136-52, 158 n.54.

[2] JOSEPH DELLAPENNA, DISPELLING THE MYTHS OF ABORTION HISTORY (2006

[3] See JOSEPH DELLAPENNA, DISPELLING THE MYTHS OF ABORTION HISTORY (2006); Robert Byrn, An American Tragedy: The Supreme Court on Abortion, 41 FORDHAM L. REV. 807 (1973); Robert Destro, Abortion and the Constitution: The Need for a Life-Protective Amendment, 63 CAL. L. REV. 1250 (1975); James Witherspoon, Reexamining Roe: Nineteenth Century Abortion Statutes and the Fourteenth Amendment, 17 ST. MARY‘S L.J. 29 (1985); Paul Benjamin Linton, Planned Parenthood v. Casey: The Flight From Reason in the Supreme Court, 13 ST. LOUIS U. PUB. L. REV. 15, 107-31 (1993) (This article, among other things, compiles 64 cases from 40 states demonstrating that the purpose of the nineteenth century state abortion prohibitions was to protect the life of the unborn child); Clarke D. Forsythe, Homicide of the Unborn Child: The Born Alive Rule and Other Legal Anachronisms, 21 VAL. U.L. REV. 563 (1987).

[4] see a Dennis J. Horan and Thomas J Balch, Roe v. Wade: No justification in History, Law, or Logic, in Abortion and the Constitution: Reversing Roe v. Wade Through the Court,  note 24 at 62.

[5] Quay, Justifiable Abortion – Medical and Legal foundations, (pt. 2) ,  49 Geo. L. J. 395 (1961), cited in Roe v. Wade, 410 U.S. 130 n.9.

[6] See Dennis J. Horan & Thomas J. Balch, Roe v. Wade: No Justification in History, Law, or Logic, in ABORTION AND THE CONSTITUTION, supra note 44 at 67.

[7] John Keown, Abortion Distortion: A Review of Dispelling the Myths of Abortion History, 35 J.L. MED. & ETHICS 325 (2007).

[8] Linton, “Enforcement of State Abortion Statutes after Roe,” at 159–161.

[9] Forsythe, Clarke D. (2013-09-24). Abuse of Discretion: The Inside Story of Roe v. Wade, at. 360. Encounter Books. Kindle Edition.

[10] Roe at 141-2

The Viability of Roe, Part 2: From Roe to Carhart

PartialBirth_Method

While Roe did not expressly declare abortion to be a “fundamental right,” in the wake of the decision many lower federal courts certainly interpreted abortion as such.[1] Indeed, many of the abortion cases that the Court heard between Roe and Planned Parenthood v. Casey dealt with overturning this presumption by the lower courts. A brief overview of some of the major pre-Casey abortion cases will be beneficial in illustrating how the Court got from Roe to Casey:

  • Connecticut v. Menillo (1975) – In a per curium decision, the Court upheld Connecticut’s criminal prohibition against non-physicians performing abortions, stating that “Roe did not go that far.”[2]
  • Planned Parenthood v. Danforth (1976) – The Court upheld part of a state statute requiring a woman to give written consent prior to undergoing an abortion, but struck down spousal and parental consent requirements.[3]
  • Bellotti v. Baird (1976) – The Court this time upheld the requirement that a minor seeking an abortion must obtain parental consent, provided that there is the option for a “judicial bypass” whereby the minor can obtain consent from a judge if necessary.[4]
  • Harris v. McRae (1980) – The Court upheld the Hyde Amendment, which forbade federal funding of abortions. The Court reasoned in this case that abortion was not a fundamental right.[5]
  • City of Akron v Akron Center for Reproductive Health, Inc. (1983) – The Court struck down a 24 hour waiting period between the time a woman seeking an abortion received counseling, and when she could undergo the abortion procedure.[6]
  • Thornburg v. American College of Obstetricians and Gynecologists (1986) – The Court struck down a number of state regulations, including informed consent requirements, reporting requirements for abortion clinics, and regulations on the medical aspects of the abortion procedure.[7] Though the majority referred to “a woman’s right to make that choice [abortion] freely [as] fundamental,” they did not apply strict scrutiny in their rationale.[8]
  • Rust v. Sullivan (1991) – The Court upheld federal finding regulations that restricted federal funding from be awarded to family planning clinics that counseled for, or performed abortions. The Court relied on Harris in its decision.[9]

As demonstrated by these sometimes contradictory rulings, the Court seemed unsure of how to apply its own rule from Roe. For example, while Thornburg called abortion a “fundamental right,” the Court chose not to apply a strict scrutiny standard of review in the case.[10] Likewise in Bellotti and Harris, the Court referred only to an “undue burden” or “unduly burdensome” analysis.[11]

A. Planned Parenthood v. Casey

The confusion over abortion law, as seen in the decisions listed above, intensified the national debate over the issue. In 1992, many believed that the Court was poised to overturn Roe, but instead, in Planned Parenthood v. Casey the Court decided to take a much narrower approach to redefining abortion jurisprudence.[12]

In taking a narrow approach, the three judge plurality purported to rely on the concept of stare decisis to reaffirm the central holding of Roe of “the right of the woman to choose to have an abortion before viability.”[13] In defense of this affirmation the plurality claimed Roe had “call[ed] the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.”[14] Furthering this argument, the plurality argued that overturning Roe would “seriously weaken the Court‘s capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law.”[15] The plurality also relied on their belief that:

[F]or two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail.  The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.[16]

 

In response to these claims, Justice Scalia and Chief Justice Rehnquist pulled no punches in their respective dissents. Answering the plurality’s argument that overturning Roe would weaken the Court, Justice Scalia had the following to say:

In my history book, the Court was covered with dishonor and deprived of legitimacy by Dred Scott v. Sandford, an erroneous (and widely opposed) opinion that it did not abandon, rather than by West Coast Hotel Co. v. Parrish, which produced the famous “switch in time” from the Court’s erroneous (and widely opposed) constitutional opposition to the social measures of the New Deal.[17]

 

 

Likewise, Chief Justice Rehnquist’s dissent responded to the plurality’s claim regarding women’s social and economic equality with similar skepticism:

The joint opinion’s assertion of this fact is undeveloped and totally conclusory. In fact, one cannot be sure to what economic and social developments the opinion is referring.  Surely it is dubious to suggest that women have reached their ‘places in society’ in reliance upon Roe, rather than as a result of their determination to obtain higher education and compete with men in the job market, and of society’s increasing recognition of their ability to fill positions that were previously thought to be reserved only for men… The “separate but equal” doctrine lasted 58 years after Plessy, and Lochner’s protection of contractual freedom lasted 32 years. However, the simple fact that a generation or more had grown used to these major decisions did not prevent the Court from correcting its errors in those cases, nor should it prevent us from correctly interpreting the Constitution here.[18]

 

Despite these harsh criticisms from their fellow justices, the plurality still chose to interpret stare decisis in a way that prevented them from overturning Roe. However, while the plurality claimed to be reaffirming the central holding of Roe they made significant changes to the Court’s existing abortion doctrine.

One of the biggest changes Casey made was expressly abandoning abortion as a fundamental privacy right, and the accompanying strict scrutiny standard of review. This shift from privacy to liberty is evidenced in what is sometimes mockingly referred to as Casey’s “Mystery of Life Passage”: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”[19]

In place of the previous standard, the plurality described abortion as a “protected liberty interest” that was measured according to an intermediate level standard of review called “undue burden.”[20] The plurality defined “undue burden” as a regulation that “has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a non-viable fetus.”[21]

But what exactly is “undue”? Under this standard, the Casey Court upheld informed consent, a 24 hour waiting period, reporting requirements for abortion facilities, parental consent (with judicial bypass), and a definition of “medical emergency” related to abortion; the only Casey requirement struck down was spousal consent.[22] But it is only contextually through cases that we can truly determine which burdens the Court believes are “undue’, as the guideline is difficult to interpret in a vacuum.

Justice Scalia has long been a critic of the “undue burden” standard, arguing that it places the Court in the inappropriate position of making legislative decisions regarding abortion legislation that are not guided by the Constitution, but rather are guided by the personal opinions and feelings of the individual Justices.[23]

Another major change the plurality made to Roe was to abandon the trimester framework set down in Roe, and focus solely on viability as the “compelling point.” In their reasoning, the plurality claimed that “there is no line other than viability which is more workable” as a compelling point for state’s interest to take hold.[24] The plurality also justified viability by arguing that there is an “element of fairness” in choosing it, because “in some broad sense it might be said that a woman who fails to act before viability has consented to the State’s intervention on behalf of the developing child.”[25] At this time the Court also recognized that medical technology had advanced to the point that viability was now generally accepted to be at approximately 21 weeks post-fertilization.[26] Finally, the plurality says that “the trimester framework… [did] not fulfill Roe’s own promise that the State has an interest in protecting fetal life or potential life.[27] Justice Kennedy, writing for the plurality, spends a considerable amount of time and space explaining the importance of the State’s “profound interest in potential human life.”[28] This is an argument Justice Kennedy would continue to defend eloquently in abortion subsequent cases.

In the opinion of the dissenters, Chief Justice Rehnquist, Justice White, Justice Scalia, and Justice Thomas, the state’s interest in protecting fetal life is profound enough to require that Roe be overturned in its entirety, so that states were free to ban abortion as they saw fit.[29]

B. Stenberg v. Carhart

The next major legal challenge to abortion came in 2000, when late term abortionist Leroy Carhart challenged Nebraska’s Partial-Birth Abortion Ban in Stenberg v. Carhart.[30] Nebraska’s ban sought to outlaw a specific method of abortion, which is described in gruesome detail in Justice Kennedy’s dissent:

[T]he abortionist initiates the woman’s natural delivery process by causing the cervix of the woman to be dilated, sometimes over a sequence of days. The fetus’ arms and legs are delivered outside the uterus while the fetus is alive; witnesses to the procedure report seeing the body of the fetus moving outside the woman’s body. At this point, the abortion procedure has the appearance of a live birth. As stated by one group of physicians, “as the physician manually performs breech extraction of the body of a live fetus, excepting the head, she continues in the apparent role of an obstetrician delivering a child.” With only the head of the fetus remaining in utero, the abortionist tears open the skull. According to Dr. Martin Haskell, a leading proponent of the procedure, the appropriate instrument to be used at this stage of the abortion is a pair of scissors. Witnesses report observing the portion of the fetus outside the woman, react to the skull penetration. The abortionist then inserts a suction tube and vacuums out the developing brain and other matter found within the skull. The process of making the size of the fetus’ head smaller is given the clinically neutral term “reduction procedure.” Brain death does not occur until after the skull invasion, and, according to Dr. Carhart, the heart of the fetus may continue to beat for minutes after the contents of the skull are vacuumed out. The abortionist next completes the delivery of a dead fetus, intact except for the damage to the head and the missing contents of the skull.[31]

 

Despite these grisly facts, the Court voted 5-4 that Nebraska’s Partial-Birth Abortion Ban was unconstitutionally vague because it did not adequately differentiate Partial-Birth Abortion from method, as well as finding that it violated the “undue burden” standard because it lacked a Roe style health exception.[32]

As the author of Casey, which he thought to be a grand compromise that would end the abortion debate once and for all, Justice Kennedy was furious and this can be seen in his scathing dissent. Justice Kennedy claims the majority in Stenberg has “a basic misunderstanding of Casey,”[33] and “contradict[ed] Casey’s premise that States have a vital constitutional position in the abortion debate.”[34] Additionally, Justice Kennedy accused the majority of “fail[ing] to acknowledge substantial authority allowing the State to take sides in a medical debate, even when fundamental liberty interests are at stake.”[35] To bolster this claim, Justice Kennedy cites the Court’s prior decision in Kansas v. Hendricks, where a man was convicted for refusing to receive the small pox vaccine.[36] In Hendricks, the Court ruled that disagreements among medical professionals “do not tie the State’s hands in setting the bounds of…laws. In fact, it is precisely where such a disagreement exists that the legislatures have been afforded the greatest latitude.”[37]

Justice Kennedy went on to argue that the Court was ignoring “substantial medical and ethical opinion[s]”[38] regarding this procedure, “which, in the State’s reasonable determination, might cause the medical profession or society as a whole to become insensitive, even disdainful, to life, including life in the human fetus.”[39]

Justice Scalia also wrote a scathing dissent in Stenberg, in which he expressed his hope that “one day, Stenberg will be assigned its rightful place in the history of this Court’s jurisprudence beside Korematsu and Dred Scott.”[40]

C. Gonzales v. Carhart

Fortunately for Justice Scalia, he did not have to wait very long. In response to Stenberg, Congress held fact finding hearings on Partial-Birth Abortion, and eventually passed the Partial-Birth Abortion Ban of 2003.[41] The factual findings Congress used to support this Act included, among others, that:

  • A moral, medical, and ethical consensus exists that the practice of performing a partial-birth abortion…is a gruesome and inhumane procedure that is never medically necessary and should be prohibited.
  • [Partial-Birth Abortion is] unnecessary to preserve the health of the mother, [and] in fact poses serious risks to the long-term health of women and in some circumstances, their lives.
  • A prominent medical association has concluded that partial-birth abortion is ‘not an accepted medical practice’…The association has further noted that partial-birth abortion is broadly disfavored by both medical experts and the public, is ‘ethically wrong,’ and ‘is never the only appropriate procedure’.
  • It is a medical fact…that unborn infants at this stage can feel pain when subjected to painful stimuli and that their perception of this pain is even more intense than that of newborn infants and older children when subjected to the same stimuli. Thus, during a partial-birth abortion procedure, the child will fully experience the pain associated with piercing his or her skull and sucking out his or her brain.
  • In light of this overwhelming evidence, Congress and the States have a compelling interest in prohibiting partial-birth abortions. In addition to promoting maternal health, such a prohibition will draw a bright line that clearly distinguishes abortion and infanticide, that preserves the integrity of the medical profession, and promotes respect for human life.[42]

 

Congress, hoping to avoid the impermissibly broad reading the Court used to strike down Nebraska’s Partial-Birth Abortion Ban, carefully crafted the descriptive language of the procedure. However, as seen in the Congressional findings listed above, Congress adamantly stuck by their belief that Partial-Birth Abortion was never medically necessary, and as such, did not include any language regarding a health exception to the ban.

Before it could even be signed into law by President George W. Bush, the Partial-Birth Abortion Ban of 2003 was challenged by abortionist Leroy Carhart, who had previously been the victor in Stenberg The resulting case, Gonzales v. Carhart, Court concluded that the legitimacy of the government’s interests in banning partial-birth abortions disproved the notion that the ban had the impermissible purpose of placing a “substantial obstacle in the path of a woman seeking an abortion.”[43]

Justice Kennedy once again wielded his pen in defense of State’s interests, composing the majority opinion of the Court. Justice Kennedy reasoned that the “central premise of [Casey]” was “that the government has a legitimate and substantial interest in preserving and promoting fetal life.”[44] In seeking to balance “the State’s interest in promoting respect for human life at all stages in the pregnancy,”[45] and a woman’s right to choose abortion, the Court ruled that the Partial-Birth Abortion Ban advanced a legitimate legislative purpose by “express[ing] respect for the dignity of human life,”[46] by promoting the state’s interest in “protecting the ethics and integrity of the medical profession,” and by preventing the “further coarsen[ing] [of] society to the humanity of…all vulnerable and innocent human life.”[47]

In finding that the Act’s lack of a health exception did not impose an “undue burden,” the Court considered the medical findings Congress relied upon to justify the Act.[48] This gave Justice Kennedy the chance to reiterate his arguments from his previous dissent in Stenberg, now held by the majority in Gonzales, regarding the right of a state to take sides in medical debates, ruling once and for that, “[m]edical uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does in other contexts.”[49]

The dissent in Gonzales harshly criticized the majority decision as, “blur[ring] the line, firmly drawn in Casey, between pre-viability and post-viability abortions.”[50]  Outside critics of the Court’s decision have gone even further, claiming that the fact that the ban applied both pre- and post-viability constituted “a direct violation of Roe’s bright line rule,” and that the Court’s decision to uphold it “demonstrated that the fixed point of viability can be bypassed.”[51]


[1] See e.g., Poe v. Gerstein, 517 F.2d 787, 789 (5th Cir. 1975); Friendship Medical Center v. Chicago Board of Health, 505 F.2d 1141, 1148 (7th Cir. 1974); Word v. Poelker, 495 F.2d 1349 (8th Cir. 1974).

[2] Connecticut v. Menillo, 423 U.S. 9, 10 (1975).

[3] Planned Parenthood v. Danforth, 428 U.S. 52 (1976).

[4] Bellotti v. Baird, 428 U.S. 132 (1976).

[5] Harris v. McRae, 448 U.S. 297 (1980).

[6] City of Akron v Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983).

[7]Thornburg v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986).

[8] Id., at 772.

[9] Rust v. Sullivan, 500 U.S. 173 (1991).

[10] Thornburg, 476 U.S. at 772.

[11] Bellotti, 443 U.S. at 640; Harris, 448 U.S. at 235.

[12] Planned Parenthood v. Casey, 505 U.S. 833 (1992).

[13] Id., at 846.

[14] Id., at 867.

[15] Id., at 865.

[16] Id., at 856.

[17] Id., at 998 (Scalia, J., dissenting).

[18] Id., at 956-7 (Rehnquist, C. J., dissenting).

[19] Id., at 851.

[20] Id., at 877.

[21] Id.

[22] See generally, Id.

[23] Supreme Court Justice Antonin Scalia, Remarks to Baton Rouge Federalist Society (October 11, 2013).

[24] Casey, 505 U.S. at 870.

[25] Id.

[26] Id., at 860 (23 weeks LMP).

[27] Id., at 876.

[28] Id.

[29] Id., at 944.

[30] Stenberg v. Carhart, 530 U.S. 914 (2000).

[31] Id., at 959-60.

[32] Stenberg, 530 U.S. 914.

[33] Id., at 964.

[34] Id., at 963.

[35] Id., at 970.

[36] Kansas v. Hendricks, 521 U.S. 346 (1997).

[37] Id., at 360.

[38] Stenberg, 530 U.S at 797.

[39] Id., at 961.

[40] Id., at 953; Korematsu v. United States, 323 U.S. 214 (1944) (Upholding the constitutionality of the military imprisonment of thousands of American citizens of Japanese descent , in internment camps during World War II); Dred Scott v. Sandford, 60 U.S. 393 (1857)(Holding  that an African American slave is not a “person” under the U.S. Constitution; and was therefore the property of the slave owner).

[41] Partial-Birth Abortion Ban Act of 2003, 18 U.S.C. § 1531 (2004).

[42] See 18 U.S.C. § 1531 (note following) (congressional findings for Pub. L. No. 108-105, §2, Nov. 5, 2003, 117 Stat. 1201).

[43] Gonzales, 550 U.S. at 160.

[44] Id., at 157.

[45] Id., at 163 (emphasis added).

[46] Id., at 157.

[47] Id.

[48] Id., at 165.

[49] Id., at 164.

[50] Id. at 186.

[51] Katia Desrouleaux, Banning Partial-Birth Abortion at All Costs-Gonzales v. Carhart: Three Decades of Supreme Court Precedent “Down the Drain”, 35 S.U. L. Rev. 543, 553 (2008); Jason Pill, Constitutional Law: Drawing A New Critical Line Between the State’s Competing Interests in Abortion Regulation to Comport with Social Palpability Gonazales v. Carhart, 127 S. Ct. 1610 (2007), 19 U. Fla. J.L. & Pub. Pol’y 369, 378 (2008).