Alfred L. Scanlan

English

St. John's University School of Law

The Catholic Lawyer Volume 21 Number 4 Volume 21, Autumn 1975, Number 4 Article 7 April 2017 Recent Developments in the Abortion Area Alfred L. Scanlan Follow this and additional works at: https://scholarship.law.stjohns.edu/tcl  Part of the Catholic Studies Commons, and the Family, Life Course, and Society Commons Recommended Citation Alfred L. Scanlan (1975) "Recent Developments in the Abortion Area," The Catholic Lawyer: Vol. 21 : No. 4 , Article 7. Available at: https://scholarship.law.stjohns.edu/tcl/vol21/iss4/7 This Diocesan Attorneys' Papers is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in The Catholic Lawyer by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact selbyc@stjohns.edu. RECENTDEVELOPMENTS IN THEABORTION AREAALFRED L. SCANLAN, ESQUIRESHEA & GARDNERWASHINGTON, D.C.I. INTRODUCTIONA. It is a pleasure, up to a point, to be invited to speak to theDiocesan Attorneys' meeting once again.1. While this meeting is not, as Marsilius of Padua once saidof a general council of the Church, "the gathered intellig-ence of Christiandom,' I nevertheless it is certainly the"gathered intelligence" of Catholic lawyers throughout thecountry.B. The subject assigned to me could have been presented by menmore competent and experienced than myself.1. Dennis Horan, Professors Noonan, Byrn, and Witherspoon,for example.2. My own litigation experience and my recent function asgeneral counsel to the National Committee for a HumanLife Amendment, Inc.3. I have attempted to keep reasonably conversant. Perhaps,in the words of Father John Courtney Murray to a youngJesuit, Charles Whelan: "It isn't that I understand it, butnow I misunderstand it less."II. GENERAL REMARKS AND OBSERVATIONSA. The general topic assigned to me.B. I have subdivided it into four parts.1. The recent abortion cases following in the wake of Roe andDoe- as far as Catholic moral principles are concerned, itwas truly a "wake."2. The conscience clause issue, especially as it affects denomi-national or religious-related hospitals.3. The contraction, thank God, of the state or governmentalaction theory.W. DURANT, THE RENAISSANCE 363 (1953).21 CATHOLIC LAWYER, AUTUMN 19754. Very briefly, some comments on pending proposals for ahuman life amendment to the Constitution.Im. RECENT ABORTION CASESA. These I have divided into several categories including spousalor parental consent, state regulation of conditions and facilities,the viability issue, and the issue of whether the taxpayers mustpay for abortions under Medicaid-obviously not under Medi-care.B. Perhaps at this point it might be fruitful to summarize theessence of the holdings of the Supreme Court in Roe v. Wade,410 U.S. 113 (1973) and Doe v. Bolton, 410 U.S. 179 (1973).1. In Roe v. Wade, the Supreme Court held that the fourteenthamendment "right of personal privacy includes" a woman'sdecision to abort and that the word "person" as used in thefourteenth amendment does not include the unborn. As aconsequence, said the Court:A state criminal abortion statute of the current Texas type,that excepts from criminality only a life-saving procedure onbehalf of the mother, without regard to pregnancy stage andwithout recognition of the other interests involved, is viola-tive of the Due Process Clause of the Fourteenth Amend-ment.(a) For the stage prior to approximately the end of the firsttrimester, the abortion decision and its effectuationmust be left to the medical judgment of the pregnantwoman's attending physician.(b) For the stage subsequent to approximately the end ofthe first trimester, the State, in promoting its interestin the health of the mother, may, if it chooses, regulatethe abortion procedure in ways that are reasonably re-lated to maternal health.(c) For the stage subsequent to viability, the State, in pro-moting its interest in the potentiality of human life,may, if it chooses, regulate, and even proscribe, abortionexcept where it is necessary, in appropriate medicaljudgment, for the preservation of the life or health of themother.22. Discussion of this language, including the Court's specificreference that the considerations of health embrace physi-cal, emotional, psychological, familial, the woman's age,distress for life and future, the unwanted child, unwanted1 410 U.S. at 164-65.DEVELOPMENTS IN ABORTIONmotherhood, etc. In other words, the word "health" as usedby the Supreme Court in Roe v. Wade, supra, means abor-tion on demand or request.3. The Supreme Court overturned an ALI-type of statute inthe Georgia Doe v. Bolton case.4. In short, the Supreme Court's decisions have removed allbut the most minimal constraints or protections for the un-born and, as Dennis Horan has pointed out, leave a consti-tutional amendment as the only avenue through which tocorrect the situation if, dear Lord, it is to be corrected.5. A passing comment on Professor Witherspoon's thirteenth(antislavery) amendment argument, i.e., the concept of a"human being" embodied implicitly in the thirteenthamendment.a. Express my doubts as to its validity-what is constitu-tionally guaranteed under the Supreme Court's inter-pretation of the fourteenth amendment cannot be con-stitutionally precluded by the thirteenth amendment.The only hope is to revise the fourteenth amendment byadding an amendment which repeals pro tanto the grossgloss which the Supreme Court has put on it by itsdecisions in Roe and Doe.C. SPOUSAL CONSENT1. In the cases decided since Roe and Doe, the courts haveconsistently upheld a woman's right to abort without ob-taining the consent of, or without the interference of, pro-spective fathers. Doe v. Doe, 314 N.E.2d 128 (Mass. 1974);Jones v. Smith, 278 So.2d 339 (Fla. Ct. App. 1973), cert.denied, 415 U.S. 958 (1974). The basic reason for these deci-sions disallowing the requirement of spousal consent is thatif the state itself cannot prohibit abortion within the peri-meters set forth in the Supreme Court decisions, supra, thestate cannot assign that power to husbands or boyfriends.Coe v. Gerstein, 376 F. Supp. 695, 697 (S.D. Fla. 1973), cert.denied, 417 U.S. 279 (1974).2. In a 1974 case, for example, the highest court in Massachu-setts refused a husband's attempt to enjoin his wife fromhaving an abortion and declared that a husband cannotinterfere with his wife's decision to abort "at least before thefetus is viable and in the absence of any danger to naturallife or health." Doe v. Doe, 314 N.E.2d at 132.21 CATHOLIC LAWYER, AUTUMN 1975D. PARENTAL CONSENT CASES1. Here, the score is no better. Almost without exception thecourts have found parental consent requirements unconsti-tutional even in cases of females below the legal age of ma-jority. In this context courts have not considered abor-tion equivalent to other surgical procedures where parentalconsent may be required. Murray v. Vandevander, 522 P.2d302 (Okla. Ct. App. 1974); In re P.J., 12 Crim. L. Rep. 2549(D.C. Super. Ct. 1973); Doe v. Ramptan, 366 F. Supp. 189(D. Utah), vacated on other grounds, 410 U.S. 950 (1973).See the recent case of State v. A. Frans Koome, 84 Wash.2d 901, 530 P.2d 260 (1975) (en banc) in which the SupremeCourt of the State of Washington, in a 5 to 4 ruling, heldthat the parental consent provisions of the State's 1970abortion law were unconstitutional. The dissenting opinionin the Koome case concluded that the State's interest "inthe quality of the minor's abortion decision as well as in themental health of a pregnant minor is of a compelling naturefrom the time of conception . .. ."2. All that can be said is that perhaps the Supreme Court'sdecision in Roe and Doe may leave open the possibility thata putative father or a parent may have some interest inapproving the abortion decision of wife or daughter at orafter viability but before that time it is extremely doubtfulthat any court can be induced to depart from the ratherbroad reading that federal and state courts thus far haveafforded the Supreme Court's decision and rationale in theRoe and Doe cases, supra.E. STATE REGULATION OF CONDITIONS AND FACILITIES1. Since Roe and Doe were decided, a number of states, includ-ing Indiana and Illinois, have revised their abortion statutesin an attempt to somewhat, at least, make access to abor-tion less than free and easy.2. Recall that the Supreme Court apparently recognized somepower on the part of states to protect viable unborn childrenalthough, because of the Court's wide definition of health,not much scope is afforded for the protection of such chil-dren.3. In Hodgson v. Anderson, 378 F. Supp. 1008 (D. Minn.),appeal dismissed 420 U.S. 903 (1974), a three-judge federalcourt invalidated the recently enacted antiabortion statuteof Minnesota which prohibited an abortion when the fetusis potentially viable unless the attending physician certifiedDEVELOPMENTS IN ABORTIONin writing that in his best medical judgment abortion wasnecessary to preserve the life or health of the pregnantwoman. The statute also contained a provision requiringmedical attention for a live born child which was abortedbut born in the state of potential viability. Incredibly, thecourt found that a state could not constitutionally protectthe life of a live born child resulting from an abortion occur-ring at or after 20 weeks. Insensitively, the three-judge courtsaid:[Tihe statute as worded would take away from thephysician his right to determine, in the exercise of hisprofessional medical judgment under the technologyand medical knowledge available to the profession,when a fetus is viable.34. Fortunately, the jury in the Edelin case in Massachusettsrefused to treat manslaughter as "the exercise of . . . pro-fessional medical judgment."5. Dennis Horan's testimony before the Senate Subcommitteeon Constitutional Amendments on April 11, 1975 refers inAppendix B thereof to cases of live births following abortion.One such child survived and was adopted. This situationcould become more common as the science of fetology prog-resses.6. The wrongful death cases which have permitted suit in be-half of a fetus whose death was caused by the negligence ofa third party. See, e.g., Chrisafogeorgis v. Brandenberg, 55Ill. 2d 368, 304 N.E.2d 88 (1973). However, cases of this kindwere called to the court's attention and argued in extensoin the amicus curiae brief which we submitted in the Roeand Doe cases. In short, the mother is to be preferred, thestranger isn't, even though the former is a party to an inten-tional killing while the latter has only been negligent.F. ABORTIONS UNDER PUBLIC ASSISTANCE PROGRAMS1. In this area the cases seem to hold that when a wide rangeof medical services is made available to indigent peoplefrom public funds, abortion cannot be ruled out as one kindof medical service. Doe v. Rose, 499 F.2d 1112 (10th Cir.1974); Klein v. Nassau County Medical Center, 347 F.Supp. 496 (E.D.N.Y. 1973), vacated, 412 U.S. 925 (1973)(mem.).2. The defeat of the Bartlett Amendment to the Departmentof Health, Education, and Welfare Appropriation Bill also378 F. Supp. at 1017.21 CATHOLIC LAWYER, AUTUMN 1975means that recipients of public assistance can continue toobtain abortions under Medicaid.3. The equal protection argument is misused in this area. Still,the states try to do their best. Arizona, for example, hasproscribed the use of certain public property for the pay-ment of medical assistance benefits for the performance ofabortions except to save the life of the mother. This statuteis now under challenge in Roe v. Harrison Board of Regents,No. 149243 (Ariz. Super. Ct. 1975).4. As Professor Witherspoon has observed, courts which strikedown these attempts to restrict the use of public money forprivate abortions fail to distinguish the difference betweena regulatory statute enforced by criminal sanctions, such asthe statutes involved in the Roe and Doe cases, and rulesand regulations which deal with the use of public funds andpublic property.IV. HOSPITALS AND ABORTIONSA. Up until now, the federal courts have held that public hospitalsmay not refuse the performance of elective abortions, even whenovercrowded facilities and staff unwillingness have been as-signed as the reasons for nonperformance. Doe v. Hale Hospital,500 F.2d 144 (1st Cir. 1974), cert. denied, 420 U.S. 907 (1975);Nyberg v. City of Virginia, 495 F.2d 1342 (8th Cir. 1974);McGarvey v. Magee-Womens Hospital, 340 F. Supp. 751 (W.D.Pa. 1972), aff'd 474 F.2d 1339 (3d Cir. 1973).B. Suits against private hospitals have been unsuccessful even inthe face of the so-called "state action" theory. Doe v. BellinMemorial Hospital, 479 F.2d 756 (7th Cir. 1973).C. The same is true in the case of denominational hospitals.Chrisman v. Sisters of St. Joseph of Peace, 506 F.2d 308 (10thCir. 1974).1. The conscience clause aspect of the matter.2. Justice Blackmun's dicta concerning the protections af-forded to religious-related hospitals.D. Our argument in the Holy Cross Hospital case.1. The conscience clause is not necessary; we stand on the freeexercise of religion clause.2. The conscience clause statutes illustrate the high place thatsociety assigns to the free exercise of religion.3. Repudiate the tenuous argument that a religious corpora-DEVELOPMENTS IN ABORTIONtion owned and operated by its religious members cannothave a "conscience."E. The contraction of the "state action" attack as manifested inrecent decisions, especially the Supreme Court's decision in theJackson case. Jackson v. Metropolitan Edison Co., 419 U.S. 345(1974).1. Lucas' reaction to Jackson in the Holy Cross case.V. PROPOSED CONSTITUTIONAL AMENDMENTSA. The difficulty in securing their passage.B. The difference of opinion concerning a states' rights amend-ment.C. An allusion to Professor Noonan's constitutional proposal whichI think makes a great deal of sense and would have as good achance as any other type to get through the Congress and to thestates for ratification.D. A caution about opposing the Equal Rights Amendment on anytheory, not justified by the legislative history of the ERA, thatits passage would somehow affect abortion laws or a subse-quently enacted Human Life Amendment.VI. CONCLUSIONA. The future is bleak so far as halting the flow of abortions thatis now occurring.B. The Catholic and other religious-related hospitals seem se-cure-conscience clause or no conscience clause.C. The nonreligious private hospitals are less secure but if the con-science clause holds up, they will be all right.D. It is only, however, a constitutional amendment that couldeffectively turn the tide.1. Chance for its passage, as I have said, is not sanguine.2. Therefore, I think a Noonan type of states' rights amend-ment represents the best outside chance.

Recent Developments in the Abortion Area

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Recent Developments in the Abortion Area

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