Tuesday, June 15, 2010

The Abortion Cases Part Six

Akron, Ohio, in City of Akron v. Akron Center for Reproductive Health, passed an ordinance regulating abortions. The majority opinion was written by Associate Justice Lewis F. Powell. The Court reaffirmed that the "State's interest in health regulation becomes compelling at approximately the end of the first trimester. The existence of a compelling state interest in health, however, is only the beginning of the inquiry. The State's regulation may be upheld only if it is reasonably designed to further that state interest." Further, "the State is obligated to make a reasonable effort to limit the effect of its regulations to the period in the trimester during which its health interest will be furthered."

The Court considered these aspects of the Akron ordinance:

(i) Section 1870.03 requires that all abortions performed after the first trimester of pregnancy be performed in a hospital

(ii) Section 1870.05 sets forth requirements for notification of and consent by parents before abortions may be performed on unmarried minors.

(iii) Section 1870.06 requires that the attending physician make certain specified statements to the patient "to insure that the consent for an abortion is truly informed consent."

(iv) Section 1870.07 requires a 24-hour waiting period between the time the woman signs a consent form and the time the abortion is performed.

(v) Section 1870.16 requires that fetal remains be "disposed of in a humane and sanitary manner."

The portion of the Akron ordinance requiring second trimester abortions to be performed in a hospital, §1870.03, was invalidated because the requirement placed an impermissible obstacle in the path of women seeking abortions. This unreasonably impinged on a woman's Constitutionally protected right to terminate pregnancy.

The Court invalidated the parental notification section of the Akron ordinance, §1870.05. This section imposed a blanket requirement, without regard for the maturity of the minor to make the decision for herself. The ordinance lacked alternative measures required by Bellotti. Stay tuned, this won't be the last case for the City Akron regarding parental notification

The Court affirmed the Court of Appeals in finding Constitutionally infirm that the portion of the ordinance, §1870.06 (b), where the physician was required to inform the mother that unborn child is a human child from the moment of conception. This requirement was "inconsistent with the Court's holding in Roe v. Wade that a State may not adopt one theory of when life begins to justify its regulation of abortions."

Then the Court affirmed the validity of §1870.06 (c), the portion of the ordinance where the information regarding the risks of the procedure, and shared medical judgments regarding the decision to abort or carry the fetus to term. The section was struck down because it did not permit anyone other than the physician to communicate this information to the patient.

The 24 hour waiting period was struck down as being arbitrary. Powell said that "[i]n accordance with the ethical standards of the profession, a physician will advise the patient to defer the abortion when he thinks this will be beneficial to her. But if a woman, after appropriate counseling, is prepared to give her written informed consent and proceed with the abortion, a State may not demand that she delay the effectuation of that decision."

The Court struck down as impermissibly vague §1870.16 requiring humane disposition of fetal remains. What humane meant was important because failure to comply triggered a criminal sanction. Were the physicians required to provide for embryonic funerals? The Court said that before conduct is criminalized, the actus reus or the criminal act must be set forth specifically.

Associate Justice Sandra Day O'Connor

Associate Justice Sandra Day O'Connor wrote a dissenting opinion She addressed the self collapsing nature of the decision in Roe v. Wade. The three trimester stages designated under Roe was unworkable because advances in science kept moving back the viability date where the fetus could survive ex utereo. These advancements kept moving back to the date where the states' interest in preserving human life attached.

Justice O'Connor's opinion would replace the trimester test with the unduly burdensome standard the Court used in Maher v. Roe. Here the Court rules that it has an interest in maternal health as well as in potential human life. O'Connor says " the point at which these interests become compelling does not depend on the trimester of pregnancy. Rather, these interests are present throughout pregnancy."

Not every statutory scheme or regulation need be examined under strict scrutiny employing the compelling state interest test with its requirement that the state action be narrowly tailored. Rather, as the Court had ruled in Carey v. Population Services, a case about contraceptives, "It was necessary that the state law impose a significant burden on a protected right, or that it burden an individual's right to decide to prevent conception or terminate pregnancy by substantially limiting access to the means of effectuating that decision."

O'Connor said "the Court recognizes that even a "significant obstacle" can be justified by a "reasonable" regulation." She goes on to say " The "undue burden" required in the abortion cases represents the required threshold inquiry that must be conducted before this Court can require a State to justify its legislative actions under the exacting "compelling state interest" standard."

City of Akron v. Akron Center for Reproductive Health was decided in 1983.

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