Tuesday, June 8, 2010

The Abortion Cases Part Three

The decision in Roe spoke about viability of the fetus as the triggering mechanism for the State's interest in the potential life of the fetus to justify more regulations regarding abortion. The viability issue is further discussed in the case of Planned Parenthood of Central Missouri v, Danforth.

John C. Danforth, Clarence Thomas, and Strom Thurmond

Associate Justice Blackmun again delivered the opinion of a sharply divided Court. It was a 5 to 4 decision, although Justice Stevens concurred in part and dissented in part. So maybe it was more like a 5+ to a 4- decision. The issues in the case revolved around Missouri's abortion statute. John C. Danforth was the Attorney General of the State of Missouri.

The Court ruled that the definition of viability in the Missouri statute did not conflict with the definition in Roe v. Wade. Missouri's definition was that viability meant the fetus is potentially able to live outside the mother's womb, albeit with artificial aid, and is presumably capable of meaningful life outside the mother's womb.

The issues of consent to the abortion were likewise litigated in Planned Parenthood of Central Missouri v, Danforth, The Court said that Missouri could require written consent by the woman, or her parents if she is under 18 and single. These provisions do not apply in emergency situations affecting the life of the mother.

Blackmun said: " The decision to abort, indeed, is an important and often a stressful one, and it is desirable and imperative that it be made with full knowledge of its nature and consequences. The woman is the one primarily concerned, and her awareness of the decision and its significance may be assured, constitutionally, by the State to the extent of requiring her prior written consent."

The Court ruled on whether the State could require the spouse's consent. The decision was that the Missouri cannot delegate to a spouse a veto power which the state itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy.

The Court also said no to the requirement of parental notification. The State may not constitutionally impose a blanket parental consent requirement, as a condition for an unmarried minor's abortion during the first 12 weeks of her pregnancy for substantially the same reasons as in the case of the spousal consent provision, there being no significant state interests, whether to safeguard the family unit and parental authority or otherwise, in conditioning an abortion on the consent of a parent with respect to the under-18-year-old pregnant minor. As stressed in Roe, "the abortion decision and its effectuation must [p54] be left to the medical judgment of the pregnant woman's attending physician."

The Court then struck down Missouri's ban on the most commonly used abortion technique, saline amniocentesis.

Blackmun said the outright legislative proscription of saline amniocentesis fails as a reasonable protection of maternal health. As an arbitrary regulation designed to prevent the vast majority of abortions after the first 12 weeks, it is plainly unconstitutional.

Missouri's statute contained a reporting requirement. This provision was upheld. The Court said the reporting and recordkeeping requirements can be useful to the State's interest in protecting the health of its female citizens. These reports may be of medical value and are not constitutionally offensive in themselves, particularly in view of reasonable confidentiality and retention provisions. They thus do not interfere with the abortion decision or the physician-patient relationship. It is assumed that the provisions will not be administered in an unduly burdensome way, and that patients will not be required to execute spousal or parental consent forms in accordance with invalid provisions of the Act.

Missouri's law required the physician to preserve the life of the fetus during all stages of pregnancy. The Court rejected this part of the law. The first sentence of § 6(1) impermissibly requires a physician to preserve the fetus' life and health, whatever the stage of pregnancy. The second sentence, which provides for criminal and civil liability where a physician fails "to take such measures to encourage or to sustain the life of the child, and the death of the child results," does not alter the duty imposed by the first sentence or limit that duty to pregnancies that have reached the stage of viability, and since it is inseparably tied to the first provision, the whole section is invalid. This is an example of the State not having an elevated interest in the fetus, the pre-viability stage.

Planned Parenthood of Central Missouri v Danforth was decided in 1976.

The parental consent issue reared its head again in Bellotti v. Baird. Massachusetts enacted a parental notification statute requiring consent from the parents be given prior to the procedure. If one or both of the parents refuse consent, then consent can be granted by an order of a judge of the superior court.

Justice Blackmun delivered the Court's opinion. Citing Planned Parenthood of Central Missouri v. Danforth he said the State may not impose a blanket provision . . . requiring the consent of a parent or person in loco parentis as a condition for abortion of an unmarried minor during the first 12 weeks of her pregnancy." Although such deference to parents may be permissible with respect to other choices facing a minor, the unique nature and consequences of the abortion decision make it inappropriate to give a third party an absolute, and possibly arbitrary, veto over the decision of the physician and his patient to terminate the patient's pregnancy, regardless of the reason for withholding the consent.. We therefore conclude that if the State decides to require a pregnant minor to obtain one or both parents' consent to an abortion, it also must provide an alternative procedure whereby authorization for the abortion can be obtained.

Massachusetts law was constitutionally infirm in two respects: First, it permits judicial authorization for an abortion to be withheld from a minor who is found by the superior court to be mature and fully competent to make this decision independently. Second, it requires parental consultation or notification in every instance, without affording the pregnant minor an opportunity to receive an independent judicial determination that she is mature enough to consent or that an abortion would be in her best interests.

Bellotti v. Baird was decided in 1979.

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