Chapter 7.B.2 Abortion

Citation for Gonzales v. Carhart is 550 U.S. 124 (2007)

Notes: The Post-Casey Landscape and the Implications of Gonzales

1. Stare Decisis. For articles on the post-Gonzales landscape, see Bonnie Scott Jones & Tracy A. Weitz, Legal Barriers to Second-Trimester Abortion Provision and Public Health Consequences, 99 Am. J. of Public Health 623 (2009); R. Alta Charo, The Partial Death of Abortion Rights, 356 N. Engl. J. Med. 2125 (2007); George J. Annas, Health Law, Ethics, and Human Rights, 356 N. Eng. J. Med. 2201 (2007). See also Richmond Medical Center For Women v. Herring, 570 F.3d 165 (C.A.4 (Va.), 2009) (en banc) (upholding facial challenge to Virginia statute prohibiting “partial-birth infanticide”).

Late term abortions remain extremely controversial. For a sampling of the litigation surrounding the provision of late term abortions by Dr. Edward Tiller in Kansas, see Tiller v. Corrigan, 182 P.3d 719 (Kan., 2008) (setting out rules for production of abortion patient records to grand jury investigating possible criminal activity in provision of late-term abortions) and Joe Stumpe, Jurors Acquit Kansas Doctor in a Late-Term Abortion Case, NY Times at http://www.nytimes.com/2009/03/28/us/28abortion.html. Dr. Tiller was murdered by an anti-abortion advocate. See Monica Davey, Abortion Foe Found Guilty in Doctor’s Killing, NY Times, at http://www.nytimes.com/2010/01/30/us/30roeder.html.

2. A Fundamental Right? For an argument that the decline of federal constitutional abortion rights, represented by Roe, requires finding ways to rely on state constitutional law, see Scott A. Moss & Douglas M. Raines, The Intriguing Federalist Future of Reproductive Rights, 88 B.U. L. Rev. 175 (2008). For a novel argument suggesting that abortion might constitutionally justified as a form of self-defense, see Eugene Volokh, Medical Self-defense, Prohibited Experimental Therapies, and Payment for Organs, 120 Harv. L. Rev. 1813 (2007).

3. A New Court and New Legislative Challenges. See John Leland, Abortion Foes Advance Cause at State Level, NY Times, June 2, 2010, at http://www.nytimes.com/2010/06/03/health/policy/03abortion.html (noting that “At least 11 states have passed laws this year regulating or restricting abortion”).

6. Second Trimester Abortions. See Lisa Haddad et al., Changes in Abortion Provider Practices in Response to the Partial-Birth Abortion Ban Act of 2003, 79 Contraception 379 (2009).

Notes: Thirty-Five Years of Abortion Jurisprudence

2. Government Funding for Abortion. The issue of government funding for abortion arose with new vengeance during the health care reform debates in 2009-10. To secure passage of the Patient Protection and Affordable Care Act, President Obama signed an Executive Order indicating that the provisions of the Hyde Amendment (prohibiting the use of federal funds for abortion except in cases rape or incest or where the life of the woman could be endangered by carrying the pregnancy) would be applied throughout federal programs including to the health care exchanges created under the new health care legislation. Executive Order -- Patient Protection and Affordable Care Act's Consistency with Longstanding Restrictions on the Use of Federal Funds for Abortion, available athttp://www.whitehouse.gov/the-press-office/executive-order-patient-protection-and-affordable-care-acts-consistency-with-longst.

3. Minors and Abortion.

State v. Planned Parenthood of Alaska, 171 P.3d 577 (Alaska, 2007)(striking down provisions of Parental Consent Act under state constitution because found not to be least restrictive way of achieving the state interest in protecting minors from their immaturity and aiding parents to fulfill their parental responsibilities).

Carol Sanger, Decisional Dignity: Teenage Abortion, Bypass Hearings, and the Misuse of Law, 18 Col. J. Gender & L. 410 (2009) (presenting arguments favouring legislative reform).

4. Informed Consent and Waiting Periods.

The New Jersey Supreme Court rejected the imposition of a common law duty to tell a pregnant woman that “an embryo is an existing, living human being” in Acuna v. Turkish, 930 A. 2d 416 (N.J., 2007). The duty of informed consent in New Jersey requires that the physician disclose “medical information that a reasonably prudent pregnant woman in like circumstances would have considered material.” Id. at 420. The court rejected the plaintiff’s claim noting that:

Plaintiff is prepared to present expert testimony to establish, as a biological fact, that her embryo was “an existing human being”-“a member of the species Homo sapiens”-at the time of the abortion. Defendant, however, can present expert witnesses who will dispute the point and who will assert that plaintiff's characterization of the embryo as a living human being is a moral, theological, or ideological judgment, not a scientific or biological one. Clearly, there is no consensus in the medical community or society supporting plaintiff's position that a six- to eight-week-old embryo is, as a matter of biological fact-as opposed to a moral, theological, or philosophical judgment-“a complete, separate, unique and irreplaceable human being” or that terminating an early pregnancy involves “actually killing an existing human being.”

The instructions that plaintiff would have us mandate obstetricians to give are certainly not the medical professional norm within this State, as noted by amicus the New Jersey Obstetric and Gynecology Society. Plaintiff has not pointed out whether even a small minority of physicians currently give such instructions. Plaintiff has not directed us to any jurisdiction or any court that has found a common law duty requiring doctors to tell their pregnant patients that aborting an embryo is the killing of an existing human being-an instruction suggesting that both the doctor and patient would be complicit in committing the equivalent of murder.

Plaintiff cannot find support for creating the legal duty she seeks to impose on doctors in either this State's law or federal law. . . .

Id. at 425-26.

The common law rule can be altered by statute. See Planned Parenthood Minnesota, North Dakota, South Dakota v. Rounds, 530 F.3d 724 (C.A.8 (S.D.), 2008) (rejecting challenge to South Dakota law requiring physicians to 1) provide women seeking an abortion with a written statement that the procedure “will terminate the life of a whole, separate, unique, living, human being,” with whom the woman has a “constitutionally protected” relationship; and 2) certify in writing that the patient understands the information).

See Rebecca Dresser, From Double Standard to Double Bind: Informed Choice in Abortion Law, 76 Geo. Wash. L. Rev. 1599 (2008); Carol Sanger, Seeing and Believing: Mandatory Ultrasound and the Path to a Protected Choice, 56 UCLA L. Rev. 351 (2008).

7. Abortion Protesters. See McCullen v. Coakley, 571 F.3d 167(1^st Cir. (Mass.) 2009)(rejecting facial challenge to constitutionality of Massachusetts legislation providing for a 35 foot buffer zone around reproductive health care facilities), cert. denied 130 S.Ct. 1881 (2010).

Problem: Late Trimester Abortions

See, Randy Beck, Gonzales, Casey, and the Viability Rule, 103 Nw. U. L. Rev. 249-280 (2009); See I. Glenn Cohen, Medical Tourism: The View from Ten Thousand Feet, Hastings Cntr. Rep., March-April 2010.

On the disability discrimination issues, see Janet Malek, Deciding Against Disability: Does the Use of Reproductive Genetic Technologies Express Disvalue for People with Disabilities?, 36 J. Med. Ethics 217 (2010)(finding that the answer is “no”); Dov Fox and Christopher L. Griffin, Jr., Disability-Selective Abortion and the Americans with Disabilities Act, 2009 Utah L. Rev. 845 (discussing evidence indicating that birth-rate of children with Down Syndrome declined after adoption of ADA; discussing possible relationship between legislation, rates of prenatal testing and abortion, and birthrate).