1974] WOMEN AND THE SUPREME COURT 239 woman's life or seriously and permanently injure her health, (2) the fetus would probably be born with serious defects, or (3) the pregnancy was a result of rape. The Georgia statute also required, inter alia, that the woman be a resident of Georgia, that the abortion be performed in a hospital accredited by the Joint Commission on Accreditation of Hospitals, that two other physicians concur in the treating physician's decision to perform the abortion, and that the procedure be approved by the hospital staff abortion committee. 15 Together, the statutes were similar to those then in force in at least forty-three other States.100 Justice Blackmun, writing for the Court over the dissents of Justices White and Rehnquist, held the Texas and Georgia statutes unconstitutional. The broad outlines of his long and somewhat convoluted opinion in Roe have been sketched by one commentator as follows:" 161 1. The right to privacy, though not explicitly mentioned in the Constitution, is protected by the Due Process Clause of the Fourteenth Amendment.142 2. This right "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.' 99163 3. This right to an abortion is "fundamental" and can therefore be regulated only on the basis of a "compelling" state interest.164 165 4. The state does have two "important and legitimate" interests here, the first in protecting maternal health, the second in protecting the life (or potential life) of the fetus. But neither can be counted "compelling" throughout the entire pregnancy: Each matures with the unborn child. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes "compelling." 5. During the first trimester of pregnancy, neither interest is sufficiently compelling to justify any interference with the decision of the woman and her physician. . . [because] mor 150 Id. at 182-84. GA. CODE ANN. §§ 26-1201 t 1203 (1972). 100 Roe v. Wade, 410 U.S. at 118 n.2, 140 n.37. The following synopsis was taken from Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920, 920-21 (1973) (hereinafter cited as Ely, Roe v. Wade]. Footnotes have been renumbered and somewhat altered. 142 Roe v. Wade, 410 U.S. at 153. 183 Id. 104 Id. at 155. 15 Id. at 150. 104 Id. at 162-63. 240 BROOKLYN LAW REVIEW [Vol. 41: 209 tality rates for women undergoing early abortions . . . “appear to be as low as or lower than the rates for normal childbirth.”’187 Thus the state's interest in protecting maternal health is not compelling during the first trimester. Since the interest in protecting the fetus is not yet compelling either, during the first trimester the state can neither prohibit an abortion nor regulate the conditions under which one is performed.168 6. As we move into the second trimester, the interest in protecting the fetus remains less than compelling, and the decision to have an abortion thus continues to control. However, at this point the health risks of abortion begin to exceed those of childbirth. "It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health." Abortion may not be prohibited during the second trimester, however. 170 7. At the point at which the fetus becomes viable the interest in protecting it becomes compelling, and therefore from that point on the state can prohibit abortions except . . . when they are necessary to protect maternal life or health." Justice Blackmun's opinion in Doe added six points: (1) The Georgia statute's requirement that the physician base his decision to perform an abortion "upon his best clinical judgment. . . [that] . . . an abortion is necessary" was not unconstitutionally vague. Under United States v. Vuitch, 173 all factors relating to the woman's physical or mental health may be considered." (2) The requirement that an abortion be performed in a JCAH accredited hospital was invalid for two reasons: first, as to first-trimester abortions, a hospital requirement was invalid 147 Id. at 149. Id. at 163-64. 100 Id. 170 Id. 171 Id. at 163-65. 172 Doe v. Bolton, 410 U.S. at 183. 1 402 U.S. 62 (1971). 174 Doe v. Bolton, 410 U.S. at 191-92, citing United States v. Vuitch, 402 U.S. at 72. This is a fairly broad interpretation of Vuitch, where the Court merely stated that the word "health" includes "psychological as well as physical well-being." Id. Under such a definition, a physician might still be uncertain as to what type of psychological findings would be necessary to justify an abortion-would a woman's decision against childbearing be sufficient, or would the physician have to find that the woman was seriously depressed or even suicidal at the prospect of bearing a child? The district court's listing in Doe of the factors relevant to health included a broader range of considerations than Vuitch implied, and the Supreme Court ratified the district court's analysis. Doe v. Bolton, 410 U.S. at 192, citing Doe v. Bolton, 319 F. Supp. 1048, 1058 (N.D. Ga. 1970). WOMEN AND THE SUPREME COURT 241 1974) under Roe; 175 second, as to abortions at other stages of pregnancy, the requirement could not be upheld, not only because JCAH accreditation concerns "hospital standards generally and has no present particularized concern with abortion as a medical or surgical procedure," but also because the State did not show that a hospital abortion would be safer than one performed in a specialized clinic or other facility. (3) The requirement of hospital abortion committee approval was invalid as a substantial limitation on the woman's right to receive care in accordance with her doctor's best judgment and her doctor's right to administer it."" (4) The same reasoning applied to the two-physician concurrence requirement.178 (5) The residency requirement was unconstitutional under the Privileges and Immunities Clause of the fourth amendment because it denied protection to persons entering Georgia in search of the medical services available there.179 (6) The argument that the Georgia statutes violated equal protection because they discriminated against the poor, resting as it did on the accreditation, committee approval, and two-physician concurrence requirements, collapsed when those requirements were held invalid.180 182 177 Critical appraisal of the abortion cases has not been lacking, but there have been few attempts to discern what Roe and Doe mean in terms of women's rights. The best, and most concise, feminist analysis of the cases appeared in a feminist publication within a month after the cases were handed down. Its authors, Lucinda Cisler and James Clapp, had been active in the feminist movement, especially in the area of abortion and contraception laws, since 1968. The following is an outline and, hopefully, an expansion upon their arguments. 175 Doe v. Bolton, 410 U.S. at 195. 174 Id. at 193. 177 Id. at 197. 17 Id. at 198-200. 170 Id. at 200. IN Id. at 200-01. See bibliographies in CONGRESSIONAL RESEARCH SERVICE, THE ABORTION CONTROVERSY 282-83 (April, 1974); 1 WOMEN'S RIGHTS L. REP., 42 (No. 5, Summer 1973); 1 WOMEN'S RIGHTS L. REP. 43 (No. 1, Spring 1974). 2 But see Goodman, Schoenbrod & Stearns, Roe and Doe: Where Do We Go From Here? 1 WOMEN'S RIGHTS L. REP. 20 (No. 4, Spring, 1973). Cisler & Clapp, Abortion Ruling: Some Good News... and Some Bad News, Majority Report, (February, 1973) (hereinafter cited as Cisler & Clapp) 1; 1 FEMINIST STUDIES 121-31 (No. 2). (Reprints are available for 20¢ from New Yorkers for Abortion Law Repeal, P.O. Box 240, Planetarium Station, New York, N.Y. 10024). 242 BROOKLYN LAW REVIEW [Vol. 41: 209 First, the Court decisively rejected the basic feminist tenet1 that every woman has a right to control her reproductive functions, and that no right of the state, of any other person, or of any potential person can infringe upon this absolute right. This right, of necessity, must be absolute, for if it is not, women will never truly have the ability to plan and to control their own lives. Instead, the whole fabric of their lives ultimately will be dependent upon other people; more significantly perhaps, they will always be aware of this dependence, as will men. The Court in Roe recognized that pregnancy and childbirth may be a "detriment" to women: Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. 185 184 Justice Douglas, in his concurring opinion in Doe, was even more specific; he noted the abandonment of educational plans, the loss of income, the interruption of career, and the impairment of a woman's mental and physical health-even deaththat may result from pregnancy and childbirth. The seriousness of these consequences cannot be overemphasized. Individual suffering may be so extreme as to be immeasurable and unbearable.187 Yet few men can begin to understand the full ramifications of what women face, for they have not faced it themselves, and they have little in their experiences with which to compare it.188 Congress to Unite Women: Report from the New York City Meeting of November 21, 22, 23, 1969, Resolution on "Reproduction and its Control," in Radical FEMINISM 31214 (A. Koedt, E. Levine & A. Rapone eds. 1973). In Roe v. Wade, 410 U.S. at 153. In Doe v. Bolton, 410 U.S. at 209-21. See D. SCHULDER & F. KENNEDY, ABORTION RAP (1971). Perhaps the closest analogy, for those who lived through the Vietnam years, is to the draft. Young men who hoped that they would not be called, who took certain jobs or exaggerated or invented certain physical or mental conditions in order to avoid being conscripted, who attempted to get conscientious objector status, who tried to enlist in "safe" branches of the military in order to avoid being sent to Vietnam, and some of whom 1974] WOMEN AND THE SUPREME COURT 243 Clearly, the Court did not comprehend this. Thus, it flatly stated: [A]ppellants and some amici argue that the woman's right is Chief Justice Burger, concurring in Doe, went so far as to use the phrase that many feminists had chanted in pro-abortion demonstrations: "Plainly, the Court today rejects any claim that the Constitution requires abortion on demand." One can only hope that the use of this phrase was coincidental rather than intentional. If a woman's right to terminate a pregnancy is "fundamental," what State interests could the Court possibly find so "compelling" as to limit that right? First, the State argued that it "[had] an important and legitimate interest in preserving and protecting the health of the pregnant woman. "192 This is an interesting notion, since no State has ever under other circumstances tried to protect a person's health against his (pronoun used advisedly) own will. The Court cited only two cases for the proposition that one does not have "an unlimited right to do with one's body as one pleases":"3 Jacobson v. Massachusetts and Buck v. Bell.195 Neither of these cases is in any way analogous to the abortion cases. Jacobson had upheld a compulsory vaccination law. Vaccination is not primarily for the protection of the person being vaccinated, but rather, for the protection of society, since the more people vaccinated, the fewer who can transmit the disease. In fact, "[t]he lengths to which the Court went [in Jacobson]. . . to justify a shot in the arm point up the degree were nevertheless sent over to Southeast Asia to risk their lives, their health, and (if they survived intact) their abilities to go back to school or to get a job when they returned perhaps can begin to comprehend the grim reality of how women feel when they are unable to control their own reproductive lives. IN Roe v. Wade, 410 .S. at 153. 190 Doe v. Bolton 410 U.S. at 208 (emphasis added). Roe v. Wade, 410 U.S. at 155-56. 192 Id. at 162. 193 Id. at 154. This right is broader than the right claimed in most cases challenging restrictive abortion laws, i.e., the right to control one's reproductive capacities. The former would include the right to commit suicide and acts of self-mutilation, and is not necessarily a right claimed by all feminists, although it has some support in case law. See Union Pacific Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891). 1197 U.S. 11 (1905). 1274 U.S. 200 (1927). |