Endnotes
1 See Hope Clinic v. Ryan, 195 F.3d 857 (7th Cir. 1999), stayed, No. 99-A427 (Stevens, Circuit Justice, Nov. 30, 1999). The Seventh Circuit reversed an Illinois district court and affirmed a Wisconsin district court in the consolidated appeal, in which the Center for Reproductive Rights represented two of the Wisconsin plaintiffs. See ibid., rev'g Hope Clinic v. Ryan, 995 F. Supp. 2d 847 (N.D.Ill. 1998) (striking Illinois PBA ban), and aff'g Planned Parenthood v. Doyle, 44 F. Supp. 2d 975 (W.D.Wis. 1999) (upholding Wisconsin PBA ban); see also Planned Parenthood v. Doyle, 162 F.3d 463 (7th Cir. 1998) (ordering preliminary relief).
2 See Little Rock Family Planning Services v. Jegley, 192 F.3d 794 (8th Cir. 1999) (striking Arkansas statute); Planned Parenthood v. Miller, 195 F.3d 386 (8th Cir. 1999) (striking Iowa statute); Carhart v. Stenberg, 192 F.3d 1142 (8th Cir. 1999) (striking Nebraska statute). The Eighth Circuit decision affirmed the decisions of the three lower courts. The Center for Reproductive Rights represented the plaintiffs in the Arkansas and Nebraska cases and represented the plaintiffs in one of the two cases challenging the Iowa statute which were consolidated by the district court.
3 See, e.g., Carhart v. Stenberg, 192 F.3d 1142 (8th Cir. 1999); see also infra at 3-9. Cf. Hope Clinic v. Ryan, 195 F.3d 857, 863-64 (7th Cir. 1999) (despite finding that the statutes at issue "might be read to prohibit" a D&E or induction abortion in certain circumstances, the court upheld the statutes to allow state courts to narrow their scope through, inter alia, case-by-case prosecutions).
4 410 U.S. 113 (1973).
5 505 U.S. 833 (1992).
6 Supra, note 5. Many courts have also held that bans on "partial-birth abortion" are unconstitutionally vague, holding that the statutes do not give physicians performing abortions fair warning as to what conduct is permitted and what prohibited. See, for example, Planned Parenthood v. Doyle, 162 F.3d 463, 469 (7th Cir. 1998); Causeway Medical Suite v. Foster, 43 F. Supp. 2d 604, 615-19 (E.D. La. 1999); Rhode Island Medical Society v. Whitehouse, 1999 WL 683846 at *18-19 (D.R.I. Aug. 30, 1999); Carhart v. Stenberg, 11 F. Supp. 2d 1099 (Neb. 1998), aff'd on other grounds, 192 F.3d 1142 (8th Cir. 1999); Planned Parenthood v. Verniero, 41 F. Supp. 2d 478 (D.N.J. 1998); Planned Parenthood v. Miller, 30 F. Supp. 2d at 1165 (S.D. Iowa 1998), aff'd on other grounds, 195 F.3d 386 (8th Cir. 1999); Evans v. Kelley, 977 F. Supp. 1283, 1305-06 (E.D. Mich. 1997); Planned Parenthood v. Woods, 982 F. Supp. 1369, 1379 (D. Ariz. 1997). The Seventh Circuit completely ignored its duty to review the Wisconsin and Illinois plaintiffs' vagueness challenge to those states' statutes, failing to consider whether the laws would chill constitutionally protected conduct. It did this despite admitting that physicians were at risk of being prosecuted for performing a constitutionally protected, "normal" D&E, sarcastically suggesting that doctors who feared such prosecution are "risk-averse," as if the threat of life imprisonment in the Wisconsin statute was not a severe enough risk to make any reasonable person cautious. Hope Clinic, 195 F.3d at 868-70. This aspect of the decisions will not be addressed here.
7 Cf Little Rock Family Planning v. Jegley, No. LR-C-97-581, slip op. at 44-45 (E.D. Ark. Nov. 13, 1998) (finding that Casey's undue burden standard applied where "[a]ll the Courts considering partial birth abortion bans have analyzed the statute under the Casey standard."). The strict scrutiny standard of review was applied by state courts in challenges to the Alaska and Montana bans on "partial-birth abortion," because those statutes were challenged under the Alaska and Montana constitutions respectively, both of which protect the right to abortion as a fundamental right. See Intermountain Planned Parenthood v. Montana, No. BDV 97-477, slip op. at 11-13 (Mt. Dist. Ct. Jun. 29, 1998); Planned Parenthood v. Alaska, No. 3AN-97-6019, slip op. at 14-15 (Alas. Sup. Ct. March 18, 1998), appeal docketed (Alas. April 15, 1998).
8 162 F.3d 463, 466-67, 470 (7th Cir. 1998) (reversing district court's denial of a preliminary injunction against enforcement of Wisconsin statute and finding that ban on "partial-birth abortion" served no valid state interest).
9 Hope Clinic, 195 F.3d at 862; see also Evans v. Kelley, 977 F. Supp. 1283, 1319 n.38 (E.D. Mich. 1997).
10 The 30 states that adopted such statutes are: Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, New Jersey, North Dakota, Ohio, Oklahoma, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia, Wisconsin.
11 Supra, note 4.
12 Supra, note 3.
13 See Carhart, 192 F.3d at 1148 (noting that results from constitutional challenges have been "almost unvarying").
14 The importance of these two concepts to the right to abortion has been repeatedly reaffirmed by the United States Supreme Court. See, for example, Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood v. Casey, 505 U.S. 833 (1992).
15 A D&E abortion involves gradual dilation of the cervix and the removal of the fetus through the cervix and vaginal canal using a combination of suction and forceps. The fetus may be removed intact or in pieces depending on numerous factors, such as the stage of gestation and amount of cervical dilation achieved. See, for example, Carhart, 192 F.3d at 1146.
16 Women obtain second trimester abortions for a variety of reasons. One study in the U.S. found that when women seeking abortions who had been pregnant for 16 weeks or more were asked about the most important reasons for their delay, a full 48 per cent of them responded that they had had difficulty arranging for the abortion, particularly raising money. A. Torres and J.D. Forrest, "Why do women have abortions?", 20 Family Planning Perspectives 169-76 (1988) ("Torres"). Raising the necessary funds is particularly difficult in the U.S. where most government sponsored health plans do not cover abortions unless the pregnancy is life-threatening or the result of rape and incest, and where many private health plans also fail to cover the procedure. 71 per cent of the women reported that they did not recognize that they were pregnant or had misjudged gestational age, 33 per cent were afraid to tell their parents or partner, and 24 per cent reported great difficulty deciding to have an abortion. Id. Women having an abortion later in pregnancy were also more likely to report personal health problems, possible fetal health problems, rape, or incest. Id. See also Janet E. Gans Epner, Ph. D., Harry S. Jonas, M.D., Daniel L. Seckinger, M.D., "Late Term Abortion," 280 JAMA 724, 725 (Aug. 26, 1998) (citing Torres).
17 See, e.g., Carhart, 192 F.3d at 1147-48.
18 ACOG represents 39,000 physicians and over 90 per cent of the board-certified ob-gyns in the United States.
19 ACOG has defined a procedure it calls "Intact D&X," which involves the following four elements in sequence:
1. deliberate dilation of the cervix, usually over a sequence of days;
2. instrumental conversion of the fetus to a footling breech;
3. breech extraction of the body excepting the head; and
4. partial evacuation of the intracranial contents of a living fetus to effect vaginal delivery of a dead but otherwise intact fetus.
ACOG Statement on Intact Dilation and Extraction, dated January 12, 1997.
20 ACOG Statement on Intact Dilation and Extraction, dated January 12, 1997.
21 Carhart, 192 F.3d at 1147.
22 Much was made in the press concerning discrepancies in statements made by pro-choice activists concerning the numbers of "partial-birth abortions" being performed in the United States. See, for example, Katharine Seelye, "Abortion-Rights Backers Defend Stance on Late-Term Procedure," New York Times, February 27, 1997 at A21. Given the vagueness of the statutes and the confusion resulting from sponsors' inaccurate representations about the scope of these statutes, anti-abortion activists have no one to blame but themselves for the discrepancy in the numbers of so-called "partial-birth abortions" reported; of course, depending on what one means when one refers to "partial-birth abortion," the numbers performed will vary widely. For example, if "partial-birth abortion" were taken to mean only D&X procedures described by ACOG and only those done post-viability - those targeted by the media - the numbers would be very small indeed. Although it is unknown how many procedures are performed using the D&X as described by ACOG, either pre-viability or post-viability, the number of abortions performed nationwide in 1992 by any procedure after 26 weeks was extremely small, estimated at between 320 and 600. An estimated 83 per cent of these post-26 week abortions are performed using some type of D&E and most others by inducing labour. However, it is not possible to quantify the type of D&E procedure used. Janet E. Gans Epner, Ph. D., Harry S. Jonas, M.D., and Daniel L. Seckinger, M.D., "Late Term Abortion," 280 JAMA 724, 725 (Aug. 26, 1998). If, however, the term encompasses pre-viability second trimester abortions performed using the D&E procedure, or even suction curettage procedures, as some courts have held, see, for example, infra at n. 32, the number is much much larger. Because the term has no clear medical - not to mention legal - meaning, and, therefore, no one knows what the term encompasses, it is impossible to say how many "partial-birth abortions" are performed. Moreover, 24 states already proscribe post-viability abortions, by any method; six others prohibit abortions by any method after the second trimester and five more prohibit abortions by any method after 24 weeks of pregnancy. Research on file with Center for Reproductive Law & Policy.
23 See, for example, Rhode Island Medical Society v. Whitehouse, 1999 WL 683846, at *22 (D.R.I. August 30, 1999) (contrary testimony against medical necessity of D&X is "unbelievable"); Richmond Medical Center for Women v. Gilmore, 1999 U.S. Dist. LEXIS 10755 at *158-59 (E.D. Va. July 16, 1999); Causeway Medical Suite v. Foster, 43 F. Supp. 2d 604, 608, 613-14 (E.D.La. 1999); A Choice For Women v. Butterworth, 54 F. Supp. 2d 1148, 1153, 1156-57 (S.D.Fla. 1998); Planned Parenthood v. Verniero, 41 F. Supp. 2d 478, 484-85 (D.N.J. 1998); Hope Clinic v. Ryan, 995 F. Supp. 847, 852 (N.D.Ill. 1998); Evans v. Kelley, 977 F. Supp. 1283, 1296 (E.D.Mich. 1997); Voinovich v. Women's Medical Center, 911 F. Supp. 1051, 1070 (S.D.Oh. 1995). Prior to the Seventh Circuit's decision, only one federal court - the Wisconsin trial court - had upheld a PBA ban, accepting the testimony of a single doctor that the ban proscribed a medically unnecessary procedure. See Planned Parenthood v. Doyle, 44 F. Supp. 2d 975 (W.D.Wis. 1999).
24 Carhart, 11 F. Supp. 2d at 1120.
25 Carhart, 11 F. Supp. 2d at 1122. See also Carhart, 192 F.3d at 1146 (accepting Dr. Carhart's testimony). Specifically, the district court found that such women would suffer risk of "(1) longer operating time; (2) greater blood loss and infection; (3) complications from bony fragments; (4) instrument-inflicted damage to the uterus and cervix; (5) exposure to the most common causes of maternal mortality . . . [and] (6) 'horrible complications' arising from retained fetal parts." Ibid. at 1123.
26 The only exception to this was the Ohio statute enacted in 1995 which did not use the term "partial-birth abortion," but instead banned what it called "D&X." Women's Med. Prof'l. Corp. v. Voinovich, 130 F.3d 187 (6th Cir. 1997), cert. denied, 523 U.S. 1036 (1998). The definition of "D&X" used in that statute, viz., "the termination of a human pregnancy by purposely inserting a suction device into the skull of a fetus to remove the brain," O.R. C. § 2919.15(A), though, was far broader than the ACOG definition, and was subsequently held to be unconstitutionally overbroad because it would criminalize many D&E abortions. Voinovich, 130 F.3d at 190. The Ohio statute also explicitly excluded suction curettage procedures from its scope, which none of the subsequent statutes have. O.R.C. § 2919.15(A).
27 See, e.g., Carhart, 192 F.3d at 1145.
28 Wis. Stat. § 895.038(a). The definition of "partial-birth abortion" used in the most recent bills introduced in the United States Congress differs somewhat from that used in these earlier bills. In the new proposed legislation, "partial-birth abortion" is defined as "an abortion in which the person performing the abortion deliberately and intentionally - (A) vaginally delivers some portion of an intact living fetus until the fetus is partially outside the body of the mother, for purpose of performing an overt act that the person knows will kill the fetus while the fetus is partially outside the body of the mother ..." H.R. 3660, 106th Cong. _2(a) (2000) (emphasis added). See also S. 1692, 106th Cong. _2(a) (1999). However, this language does nothing to limit the scope of the bans. For example, during a D&E abortion, part of a fetus can pass through the vaginal introitus - and thus be "partially outside the body of the mother" - prior to fetal demise, thereby triggering the prohibitions of the Act. This can occur spontaneously, or as a result of part of the fetus being pulled by forceps through the cervix. It is not infrequent, avoidable, or medically undesirable for part of a fetus to pass through the vaginal introitus, given the size of the fetus and the fact that the distance between the cervix and vaginal introitus is shortened when pressure is applied to bring the fetus through the cervix. Indeed, when a woman has a prolapsed uterus, there is no distance between her cervix and vaginal introitus, so it is even more common for these women that, during D&E procedures, part of a living fetus would protrude through introitus.
29 Little Rock Family Planning Services v. Jegley, No. LR-C-97-581, slip op. at 38 (E.D. Ark. Nov. 13, 1998), aff'd, 192 F.3d 794 (8th Cir. 1999).
30 Indeed, the only abortion procedures that fall clearly outside the statutes' reach are hysterotomy or hysterectomy abortions in which the fetus is not removed through the vagina, but rather through the abdominal wall. These procedures are rarely used as abortion methods, in large part because their rates of maternal mortality and morbidity far exceed that of D&E and induction abortions, which involve removal of the fetus through the vagina. Carhart, 11 F. Supp. 2d at 1109.
31 See, for example, Carhart, 192 F.3d 1142 (8th Cir. 1999); Little Rock Family Planning Services, 192 F.3d 794 (8th Cir. 1999); Planned Parenthood v. Miller, 195 F.3d 386 (8th Cir. 1999).
32 Planned Parenthood v. Miller, 195 F.3d at 388-89; Little Rock Family Planning Services v. Jegley, 192 F.3d 794, 797-98 (8th Cir. 1999); Planned Parenthood of Central New Jersey v. Verniero, 41 F. Supp. 2d 478, 493 (D.N.J. 1998), appeal docketed, No. 99-5042 (3rd Cir. argued Nov. 19, 1999); Causeway Med. Suite v. Foster, 43 F. Supp. 2d 604 (E.D. La. 1999), appeal docketed, No. 99-30324 (5th Cir. Apr. 5, 1999); Hope Clinic v. Ryan, 995 F. Supp. 847, S.D. Ill.1998), rev'd, 195 F.3d 857 (7th Cir. 1999), stayed, No. 99-A427 (Stevens, Circuit Justice, Nov. 30, 1999). But see Hope Clinic, 195 F.3d at 863-64. Even in Hope Clinic, the court undermined its ruling that the Wisconsin and Illinois statutes banned only the D&X procedure by admitting that the statutes could be read to ban D&E and induction abortions and by ordering the trial courts to issue "precautionary injunctions" - an unprecedented use of federal supervisory power - preventing the states from applying the bans to "a normal D&E or induction," until Wisconsin and Illinois clarified the laws "by statutory amendment, regulation, or judicial interpretation. . .". Hope Clinic, 195 F.3d at 863-64.
33 Cong. Rec. S10510 (daily ed. Sept. 17, 1998) (statement of Sen. Hutchinson).
34 Ibid. at § 940.16(b). See also, La. R.S. § 14:32.9(A)(2) (defining "fetus" and "infant" as "biological offspring of human parents").
35 Causeway Medical Suite, 43 F. Supp. 2d at 619.
36 Ibid.
37 Petition for writ of certiorari, filed November 15, 1999 in Stenberg v. Carhart, No. 99-830, at 12-16.
38 Ibid. at 3.
39 Causeway v. Foster, No. 97-2211, Defendants' Memorandum in Support of Motion for Summary Judgment at 20.
40 (Jan. 12, 1997).
41 ACOG Statement at 1.
42 Ibid. at 2.
43 AMWA Statement on HR 1122.
44 Report 26 of the AMA Board of Trustees (A-97) on Late-Term Pregnancy Termination Techniques at 2.
45 Booz Allen & Hamilton Management Audit of the American Medical Association Decision-Making Processes, Final Report Volume II, Appendix D at D-1 (October 13, 1998) ("Booz Allen Audit").
46 Ibid. at D-21. The Report further criticized the AMA's decision-making process, finding that "[r]ather than focusing on its role as 'steward' for the profession and the public health, the board got enmeshed in operational issues of lobbying, and lost sight of its responsibility for making decisions which, first and foremost, benefit the patient; and protect the physician-patient relationship." Booz Allen Audit at D-19-20. See also Robert Pear, "Inquiry Criticizes A.M.A. Backing of Abortion Procedure Ban," New York Times, December 4, 1998 at A27.
47 Lori Tighe, "AMA reproached for supporting partial-birth abortion ban," Star Bulletin, at A-4 (Tues. Dec. 8, 1998).
48 Carhart, 192 F.3d at 1146 n.4. Numerous other courts have struck down the bans on these grounds. For decisions addressing vagueness, see supra, at note 6; for decisions addressing lack of health exception, see, for example, Voinovich, 130 F.3d at 209; Causeway, 43 F. Supp. 2d at 613-14; Verniero, 1998 U.S. Dist. LEXIS 21488 at *71; Eubanks, 28 F. Supp. 2d at 1042; Woods, 982 F. Supp. at 1378. See also Doyle, 162 F.3d at 468.
49 195 F.3d at 863-64.
50 Ibid.
51 195 F.3d at 875.
52 Moreover, the court further weakened the "undue burden" standard of review by holding that "'undue' means not only 'substantial' . . . but also that the burden must be undue in relation to the women's interests, rather than undue in relation to the court's assessment of society's interests," 195 F.3d at 874, language that appears nowhere in Casey or indeed in any other case.
53 The plaintiffs in the challenges to the Wisconsin and Illinois statutes sought a stay of the Seventh Circuit's decision, indicating their intent to file petitions for a writ of certiorari. On November 30, 1999, Justice Stevens granted the stay pending the timely filing and disposition by the Supreme Court of a petition for a writ of certiorari. Hope Clinic v. Ryan, No. 99A427, Order (Stevens, Circuit Justice, Nov. 30, 1999). In the event the petition is granted, the stay shall remain in effect until judgment is issued by the United States Supreme Court. Ibid.
54 The State of Arkansas declined to appeal the Eighth Circuit's decision striking Arkansas' ban on "partial-birth abortion," stating publicly its opinion that an appeal would be too costly and likely unsuccessful. Associated Press, "Pryor waits on appeal of late-term abortion," (December 21, 1999).
55 505 U.S. 833.
56 410 U.S. 113.
57 Casey, 505 U.S. at 850; ibid. at 857 (noting that "Roe stands at an intersection of two lines of decisions" and emphasizing the distinction between the two strands).
58 Casey, 505 U.S. at 849 (emphasis added) (parallel citations omitted); ibid. at 857 (noting that the case "may be seen not only as an exemplar of Griswold liberty but as a rule (whether or not mistaken) of personal autonomy and bodily integrity, with doctrinal affinity to cases recognizing limits on governmental power to mandate medical treatment or to bar its rejection."). See also Roe, 410 U.S. at 211-13 (contrasting "freedom of choice in the basic decisions of one's life" with "freedom to care for one's health and person, freedom from bodily restraint . . . ") (Douglas, J., concurring). In addition, although not at issue in Roe because that case involved a statute criminalizing abortion, not any threatened disclosure of confidentiality per se, the Court has since recognized that the right to informational privacy is also part of the right to abortion. Relying on cases recognizing that the right to privacy included the right to keep certain information about oneself private, the Court noted in Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 247 (1986), "[t]he decision to terminate a pregnancy is an intensely private one that must be protected in a way that assures anonymity." Ibid. at 766 (striking Pennsylvania reporting requirements that would have allowed identification of women who had obtained abortions, thus "rais[ing] the specter of public exposure and harassment of women who choose to exercise their personal, intensely private, right, with their physician, to end a pregnancy.") Thornburgh, 476 U.S. at 767 (citing Lamont v. Postmaster General, 381 U.S. 301 (1965); Talley v. California, 362 U.S. 60, 64-65 (1960); and NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462-65 (1958)). See also Bellotti v. Baird, 443 U.S. 622, 644 (1979) (requiring that judicial bypass procedures maintain a minor's anonymity). Cf. Danforth, 428 U.S. at 80 (upholding reporting requirements that were "reasonably directed to the preservation of maternal health and that properly respect a patient's confidentiality and privacy").
59 405 U.S. 438, 453.
60 141 U.S. 250, 251 (1891) (right at issue is right to "control of [one's] own person").
61 504 U.S. 1084, 1085 (1992) (Stevens, J., dissenting) (a woman's right to choose abortion has "two components - her decision to terminate the pregnancy and her decision concerning the method of doing so."). The full Court did not address the privacy arguments raised by Justice Stevens, concluding that the issue was not properly before the Court. Ibid. at 1084.
62 462 U.S. 416, 427 (1983) ("The physician's exercise of this medical judgment encompasses both assisting the woman in the decision making process and implementing her decision should she choose abortion.").
63 476 U.S. at 760 ("state may not require the delivery of information designed 'to influence the woman's informed choice between abortion or childbirth'").
64 497 U.S. 502, 510 (1990) (bypass procedure required to prevent another person from having "absolute veto power" over a minor's decision).
65 476 U.S. at 768-69 (striking statute because it did not make maternal health "physician's paramount consideration").
66 505 U.S. 833 (1992).
67 Ibid. at 877.
68 Ibid. at 877-78 (emphasis added).
69 Ibid. at 878 (emphasis added).
70 That Casey was solely directed towards the state's interest in dissuasion is supported by then Chief Justice Burger's dissent in Thornburgh, where he criticized the majority for rejecting information requirements that "might have the effect of 'discouraging abortions.'" Thornburgh, 476 U.S. at 783-84 & n.* (Burger, C.J., dissenting) (quoting majority at 762). The Chief Justice criticized this as an "astounding rationale," ibid. at 783 n.*, claiming that Roe was never meant to prevent the state from discouraging abortions and that the majority was taking the principles of Roe too far. Ibid. at 783-84. In other words, there had been a movement to create a new state interest in discouraging abortion, at least since 1986. When the court did, in 1992, establish that the state did have such an interest, a new standard, the undue burden standard was needed to set some kind of limit but still allow most attempts to dissuade.
71 Rochin v. California, 432 U.S. 165 (1952).
72 494 U.S. 210 (1990).
73 Colautti, 439 U.S. at 387; see also Akron, 462 U.S. at 427 ("The physician's exercise of this medical judgment encompasses both assisting the woman in the decision making process and implementing her decision should she choose abortion").
74 Akron, 462 U.S. at 427 (quoting Doe v. Bolton, 410 U.S. 179, 192 (1973)).
75 Union Pacific Ry. Co. v. Botsford, 141 U.S. at 251.
76 Ibid.
77 504 U.S. 127 (1992).
78 497 U.S. 261 (1990). See also ibid. at 289 (O'Connor, J., concurring).
79 470 U.S. 753.
80 342 U.S. 165. See also Gray v. Romeo, 697 F. Supp. 580, 586 (D.R.I. 1988) (finding that "the right to control fundamental medical decisions is an aspect of the right of self-determination and personal autonomy"); In re A.C., 573 A.2d 1235, 1244 (D.C. 1990) (en banc) ("the right to accept or forego medical treatment is of constitutional magnitude").
81 Cruzan, 497 U.S. at 287 (O'Connor, J., concurring). Although the Supreme Court recently held that a state may forbid a physician from assisting a patient's suicide in Washington v. Glucksberg, 65 U.S.L.W. 4669, 117 S.Ct.2258 (1997) the Court reaffirmed that medical treatment decisions generally rest with the patient, not the state. Glucksberg, 65 U.S.L.W. at 4674 n. 17, 4675 (recognizing that "right to refuse unwanted medical treatment [is] so rooted in our history, tradition, and practice as to require special protection under the Fourteenth Amendment"); ibid. at 4680-81 (Stevens J., concurring) (recognizing that the Constitution "embraces, not merely a person's right to refuse a particular kind treatment, but also her interest in dignity, and in determining the character of memories that will survive long after her death"); ibid. at 4686, 4691 (Souter J., concurring) (noting constitutional protection for patient's choice of medical treatment); ibid. at 4695 (Breyer J., concurring) (noting Constitution's protection of "interests relating to personal dignity, medical treatment, and freedom from state-inflicted pain"); Vacco v. Quill, 65 U.S.L.W. 4695, 4699 (U.S. June 26, 1997) (No. 95-1858) (recognizing that right to decline medical treatment flows from "well established, traditional rights to bodily integrity and freedom from unwanted touching"). The Court carved out an exception to this principle for the case of assisted suicide, based on a "consistent and almost universal tradition," of prohibiting assisted suicide - a tradition stretching over 700 years. Glucksberg, 65 U.S.L.W. at 4671-74, 4675. By contrast, the Glucksberg Court reaffirmed constitutional protection for a woman's abortion decision, finding no similar tradition precluding constitutional protection. Ibid. at 4675-76 (reaffirming Casey).
82 Canterbury v. Spence, 464 F.2d 772, 780 (D.C. Cir. 1972) (quoting Schloendorff v. Society of New York Hosp., 211 N.Y. 125, 129-30 (1914)).
83 Glucksberg, 65 U.S.L.W. at 4691 (Souter J., concurring).
84 505 U.S. at 857.
85 Ibid. at 896.
86 Ibid. at 927.
87 Ibid. at 927 (Blackmun J., concurring in part and dissenting in part).
88 428 U.S. 52.
89 Ibid. at 76-78.
90 Ibid. at 78.
91 Ibid. See also Wolfe v. Schroering, 541 F.2d 523, 527 (6th Cir. 1976) (striking ban on saline abortions); Wynn v. Scott, 449 F. Supp. 1302, 1325-26 (N.D. Ill. 1978) (same), aff'd, 599 F.2d 193 (7th Cir. 1979).
92 Thornburgh, 476 U.S. at 768-69. See also Schulte v. Douglas, 567 F. Supp. 522, 525-26 (D. Neb. 1981) (striking "choice of method" statute), aff'd, Women's Services, P.C. v. Douglas, 710 F.2d 465 (8th Cir. 1983); Margaret S. v. Edwards, 488 F. Supp. 181, 194-202 (E.D. La. 1980) (same), aff'd, 794 F.2d 994 (5th Cir. 1986); Jane L. v. Bangerter, 61 F.3d 1493, 1504 (10th Cir. 1995), rev'd on other grounds (sub nom. Leavitt v. Jane L.), 116 S. Ct. 2068 (1996).
93 Supra, note 93.
94 Supra, note 93.
95 Benten, 504 U.S. at 1085 (Stevens J., dissenting).
96 Colautti, 439 U.S. at 387; see also Cruzan, 497 U.S. at 289 (O'Connor J., concurring) (denying a patient the right to choose or reject life-sustaining treatment "burdens [her] liberty, dignity, and freedom to determine the course of her own treatment").
97 Danforth, 428 U.S. at 78.
98 470 U.S. at 766.
99 342 U.S. at 174.
100 Lefkowitz v. Cunningham, 431 U.S. 801, 807-08 (1977); Simmons v. United States, 390 U.S. 377, 394 (1968).
101 See, e.g., Akron, 462 U.S. at 436-37 (noting evidence of safety and availability of D&E procedure).
102 55 F. Supp. 2d 441, 449-57 (E.D. Va. 1999), stay granted on other grounds, No. 98-1930(L) (4th Cir. Sept. 14, 1999).
103 Ibid. Even where altering the course of one's medical treatment would clearly benefit a third party, the state may not mandate that an individual do so. See A.C., 573 A.2d at 1243-44 ("courts do not compel one person to permit a significant intrusion upon his or her bodily integrity for the benefit of another person's health"); McFall v. Shimp, 10 Pa. D & C.3d 90, 91 (Pa. Ct. C.P. Allegheny Cty. 1978) (declining to "force one member of society to undergo a medical procedure which would provide that part of that individual's body would be removed from him and given to another so that the other could live"). A fortiori, no asserted interest in potential life can justify limiting the woman's choice of method prior to viability. After all, "a fetus cannot have rights . . . superior to those of a person who has already been born". A.C., 573 A.2d at 1244. In fact, if a state had an overriding interest in proscribing a method of abortion before viability based on fetal interests alone, all forms of abortion, which by definition end in fetal demise, would be subject to prohibition.
104 Casey, 505 U.S. at 877-78; Doyle, 162 F.3d at 467.
105 162 F.3d at 466 -67, 470 (reversing denial of preliminary injunction against Wisconsin "partial-birth abortion" statute). Across the range of constitutional rights cases, the Supreme Court has required at least a reasonable relationship between state regulation and the purported state interest. Taking just one example from abortion jurisprudence, the Court struck down a Minnesota requirement that two parents be notified of a minor's seeking abortion, because the law did not "reasonably further any state interest" because it actually undermined, and did not advance, the "usual justification" for parental consent or notice laws. Hodgson v. Minnesota, 497 U.S. 417, 450 (1990).
106 Doyle, 162 F.3d at 467. Post-viability the state can "proscribe abortion, except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother". Roe v. Wade, 410 U.S. at 165. Even then, "life and health", i.e., the woman's bodily integrity, must predominate.
107 See, for example, Doyle, 162 F.3d at 470.
108 Doyle, 162 F.3d at 471.
109 Ibid. at 470.
110 195 F.3d at 862 (ban supporters "deem the D&X procedure needlessly cruel and bordering on infanticide").
111 Hope Clinic, 195 F.3d at 879.
112 Ibid. at 879-81.
113 Doyle, 162 F.3d at 477 (Manion, J., dissenting).
114 410 U.S. 113 (1973).
115 505 U.S. 833 (1992).
This article has been peer-reviewed.
Ashcroft Strikes Out
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