Abortion law. Historical precedence.
After the american revolution, abortion
was legal and practiced (mostly by
midwives) in all colonies. Recipes for
abortifacients (sp?) and contraceptives
were openly advertised and traded. 1/3
of all puritan women at the time were
already pregnant when they married.
Opposition to abortion arose as a response
against midwives. Women were forced out
of medicine and abortion was criminalized.
Effective contraception also became
illegal and only a man could obtain
condoms.
Prior to 1973, abortion was regulated
individually by the states. Some states
such as new york, had already
de-criminalized abortion before roe v.
Wade.
In 1960, the pill was invented, however,
contraception was still mostly illegal.
In 1965, the supreme court found in
griswold v. Connecticut that a right to
privacy does indeed exist and it protects
fundamental decisions on planning
children. While this was a step in the
right direction, this right to privacy, at
first, only extended to married people.
In 1972, the supreme court found in
eisenstadt v. Baird that single people
also have protection under the law (the
14th amendment) and denying them
contraception is unconstitutional.
Justice brennan, writing for the majority
held, "if the right of privacy means
anything, it is the right of the
individual, married or single, to be free
from unwarranted governmental intrusion
tino matters so fundamentally affecting a
person as the decision to whether to bear
or beget a child." ( http://www.Oyez.Org/
oyez/resource/case/630/ )
in 1973, using griswold and eisenstadt as
precedent, roe v. Wade was heard before
the supreme court. In roe, several
important factors emerged. While the
right to privacy was used as precedent, a
right of bodily autonomy resulted in roe.
Meaning that it is unconstitutional to
compell women to remain pregnant when it
poses risks to their health and life and
that men did not have to take these risks.
Therefore, equal protection under the
law (14th amendment) meant that a woman
could choose not to undergo these risks.
Thus women have a right to their own
bodies and to decide what is best for
their own bodies.
Also, the trimester framework was
established. During the first trimester,
the state could not prohibit abortions
because the state's interest did not
outweigh a woman's right to bodily
autonomy. In the second trimester, the
state's interest in the safety of the
procedure could allow the state to impose
certain restictions but could not enforce
a complete prohibition. In the third
trimester, the state has the right to
prohibit abortions except in cases where
the health or life of the woman is at
stake. Only approximately 1% of
abortions take place in the third
trimester and can only be obtained when
the woman's life and health are in
jeopardy.
The backlash ensues.
Justice blackmun who penned the roe
opinion thought that the court was putting
an end to the abortion debate once and for
all. On the contrary, the decision only
fueled a resulting backlash.
The court once again was asked to question
its standing on abortion in planned
parenthood v. Casey in 1992. At the
time, choice supporters feared that this
decision would eliminate roe and the
decision of restricting abortion would
again fall to the state's. In planned
parenthood v. Casey, the supreme court
upheld the fundamental principles of roe.
However, they replaced the trimester
framework with a viability standard.
Now, a woman has the right to seek an
abortion before viability. After
viability, the state may restrict abortion
to cases where the life, health, and
future fertility of the woman are at
stake. The court also ruled that the
states could impose various restrictions
and rulings even if said restrictions made
obtaining an abortion harder. Thus, the
undue burden standard was established. A
state may impose restrictions as long as
they do not present an undue burden to the
woman seeking an abortion.
Today.
Roe still stands today but much of it is a
front window display. Women in many
states find their states restrictions make
it very hard for them to exercise their
right to a safe, legal abortion.
Should roe fall.
Should roe fall, it is estimated that more
than 70 million women in 30 states would
lose their right to a safe abortion the
very next day. The 30 states are:
alabama, arizona, arkansas, colorado,
delaware, georgia, idaho, illinois,
indiana, iowa, kansas, kentucky,
louisiana, michigan, mississippi,
missouri, nebraska, new hampshire, north
carolina, north dakota, ohio, oklahoma,
pennsylvania, rhode island, south
carolina, south dakota, texas, utah,
virginia, and wisconsin. Only an
estimated 20 states would maintain a
woman's right to choose. Women who live
in the 30 "risk" states would soon find
themselves travelling a great distance to
obtain an abortion.
Also, the legality of abortion has
mattered very little in the history of
humanity. Women have always sought an
abortion when they felt for whatever
reason that they could not continue a
pregnancy. A legal abortion tends to be
safer than an illegal abortion.
Therefore overturning roe is likely to
result in the amount of deaths and injury
seen before roe was decided. Before roe
(and after should it ever be overturned),
women were maimed and died from illegal,
botched, and home abortions. Whole wings
of hospitals were devoted to women
recovering from horrific infections, loss
of blood, and other related symptoms from
attempted home abortions. Many women
lost their lives trying to exert control
over their lives and bodies.
|
jenn_smithson
Active User, Really EHEALTHy
Joined: 15 Nov 2004 Posts: 808 Location: Texas
Posted: 12-16-04 22:01pm
I thought someone was eager to discuss the
law which is why I started this thread?
Was I mistaken?
|
neo_1978
Experienced User , Rather EHEALTHy
Joined: 15 Dec 2004 Posts: 50 Location: somewhere
Posted: 12-17-04 00:46am
I have an uncomfortable feeling that roe
v. Wade was just thrown into my face.....
Well since we went there let’s discuss,
as I have mentioned in my previous post I
don’t quite understand "reproductive
rights" based primarily on roe v. Wade
itself. The following section of roe
should shed some light: this is the only
time roe cited a legal situation for
abortion.
"(2) within 20. Weeks after the
commencement of the pregnancy [or after
20. Weeks only if the physician has
reasonable cause to believe (i) there is a
substantial risk that continuance of the
pregnancy would endanger the life of the
mother or would gravely impair the
physical or mental health of the mother,
(ii) that the child would be born with
grave physical or mental defect, or (iii)
that [410 u.S. 113, 147] the pregnancy
resulted from rape or incest, or illicit
intercourse with a girl under the age of
16 years].
You see this passage effectively outlaws
abortion for women who simply find
pregnancy to be inconvenient; it did
however protect women from dangers to
their body, which can in no way be
perceived as some type of "reproductive
right"
|
jenn_smithson
Active User, Really EHEALTHy
Joined: 15 Nov 2004 Posts: 808 Location: Texas
Posted: 12-17-04 02:13am
neo_1978
wrote:
well since we went there
let’s discuss, as I have mentioned in my
previous post I don’t quite understand
"reproductive rights" based primarily on
roe v. Wade
itself.
reproductive rights are
based on a good number of precedent cases,
not only roe. One precedent cited for
griswold (which for the life of me I can't
remember at this time) was a case
involving forced sterilization of common
criminals after their third conviction.
This practice was found to be
unconstitutional because it unduly
suppressed that person's right to
reproduce. Therefore, a right *to*
reproduce was established long ago (i want
to say that case was sometime in the
1800's, post civil war era, ugh, it's
driving me nuts that I cannot remember
it).
Another case, where mentally disabled
people were being sterilized was also
reversed. People have for a very long
time had a "right" *to* reproduce. The
right to keep from reproducing by various
methods came later with griswold,
eisenstadt, and then finally roe.
Quote:
the following
section of roe should shed some light:
this is the only time roe cited a legal
situation for abortion.
"(2) within 20. Weeks after the
commencement of the pregnancy [or after
20. Weeks only if the physician has
reasonable cause to believe (i) there is a
substantial risk that continuance of the
pregnancy would endanger the life of the
mother or would gravely impair the
physical or mental health of the mother,
(ii) that the child would be born with
grave physical or mental defect, or (iii)
that [410 u.S. 113, 147] the pregnancy
resulted from rape or incest, or illicit
intercourse with a girl under the age of
16 years].
You see this passage effectively outlaws
abortion for women who simply find
pregnancy to be inconvenient; it did
however protect women from dangers to
their body, which can in no way be
perceived as some type of "reproductive
right"
also found in roe:
"thus, it was recommended that abortions
in the second trimester and early
abortions in the presence of existing
medical complications be performed in
hospitals as inpatient procedures. For
pregnancies in the first trimester,
abortion in the hospital with or without
overnight stay "is probably the safest
practice." an abortion in an extramural
facility, however, is an acceptable
alternative "provided arrangements exist
in advance to admit patients promptly if
unforeseen complications develop."
standards for an abortion facility were
listed. It was said that at present
abortions should be performed by
physicians or osteopaths who are licensed
to practice and who have "adequate
training." id., at 398...The constitution
does not explicitly mention any right of
privacy. In a line of decisions, however,
going back perhaps as far as union pacific
r. Co. V. Botsford, 141 u.S. 250, 251
(1891), the court has recognized that a
right of personal privacy, or a guarantee
of certain areas or zones of privacy, does
exist under the constitution...*on the
basis of elements such as these, appellant
and some amici argue that the woman's
right is absolute and that she is entitled
to terminate her pregnancy at whatever
time, in whatever way, and for whatever
reason she alone chooses. With this we do
not agree*."
specifically stated by justice blackmun
who penned this opinion, are areas and
zones of privacy that do exist under the
constitution. The court also found in
the very sentence above that the woman's
right was not absolute.
The court then begins to define when a
woman can obtain an abortion, "although
the results are divided, most of these
courts have agreed that the right of
privacy, however based, is broad enough to
cover the abortion decision; that the
right, nonetheless, is not absolute and is
subject to some limitations; and that at
some point the state interests as to
protection of health, medical standards,
and prenatal life, become dominant. We
agree with this approach...Those striking
down state laws have generally scrutinized
the state's interests in protecting health
and potential life, and have concluded
that neither interest justified broad
limitations on the reasons for which *a
physician and his pregnant patient might
decide that she should have an abortion in
the early stages of pregnancy*."
the early stages of pregnancy are safe
times for a woman to exercise her rights
as is stated above. Moreover, roe
specifically defines personhood as well in
the following: "the constitution does not
define "person" in so many words...But in
nearly all these instances, the use of the
word is such that it has *application only
postnatally*". Persons protected under
the law are born.
The court also went to great lengths
within roe to give adequate attention to
the age old question of "when does life
begin?" and should it matter within the
law?
Then the court gets specific on when
abortions may be performed: "this is so
because of the now-established medical
fact, referred to above at 149, that until
the end of the first trimester mortality
in abortion may be less than mortality in
normal 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...*this means, on the other hand,
that, for the period of pregnancy prior to
this "compelling" point, the attending
physician, in consultation with his
patient, is free to determine, without
regulation by the state, that, in his
medical judgment, the patient's pregnancy
should be terminated. If that decision is
reached, the judgment may be effectuated
by an abortion free of interference by the
state*...*if the state is interested in
protecting fetal life after viability, it
may go so far as to proscribe abortion
during that period, except when it is
necessary to preserve the life or health
of the mother*."
specifically stated again in the
conclusion of roe, the court explicitly
spells out this new ruling. Before the
end of the first trimester, the woman has
a right to obtain an abortion without
state interference. At viability, the
state's interest in protecting maternal
life begin to outweight. A woman whose
life or health is in danger is always
covered by the right to an abortion.
I am certainly happy that those who have
been appointed to interpret supreme court
decisions have some idea of what they are
doing...You see its not difficult to see
your agenda in your interpretation of
these decisions, and it is still odd that
you read and "understand" this much case
law and you still can't classify
"reproductive rights" as natural or
personal, I mean after all that was the
original question. And oh by the way are
you yet worried that your newly elected
president owes a huge favor to your arch
enemy....The religious right, just
checking..You know those vacant federal
judge seats, not to mention the supreme
court seat soon to be vacant would be very
bad for your cause if they were to be
filled with conservatives....
Oh it’ so nice to not really care either
way, besides i’m in the military, so i’ve
my fair share of killing so I cant really
condemn anyone who gets an abortion.
|
jenn_smithson
Active User, Really EHEALTHy
Joined: 15 Nov 2004 Posts: 808 Location: Texas
Posted: 12-17-04 15:01pm
neo_1978
wrote:
you see its not difficult to
see your agenda in your interpretation of
these decisions, and it is still odd that
you read and "understand" this much case
law and you still can't classify
"reproductive rights" as natural or
personal,
in every case I have
cited, the rights that emerged were
defined as fundamental human rights, i.E.,
natural rights. However, in none of the
cases is the term "natural rights" used
(to my knowledge I would have to search
them all). The term that has emerged the
most and with the most frequency is
*fundamental human right*.
Quote:
and oh by the way
are you yet worried that your newly
elected president owes a huge favor to
your arch enemy....The religious right,
just checking..You know those vacant
federal judge seats, not to mention the
supreme court seat soon to be vacant would
be very bad for your cause if they were to
be filled with
conservatives....
first, I have no
enemies that I know of. I don't feel
that "the other side" is my enemy. I
simply feel that they are misinformed.
Secondly, I have no problem with the
religious right as long as they keep their
religion to themselves. I don't want it
forced on me.
Thirdly, I am well aware of the
frightening prospects of neoconservatives
reaching both the federal and the supreme
courts. I am a member of several
internet watch groups and have written
quite a number of letters to my congress
persons urging them to vote against or
fillibuster certain candidates.
Fourthly, to overturn roe, the court would
have to overturn all the precedent cases
as well and all of the cases that have
used roe as their own precedent (namely
lawrence v. Texas). We would cease to
have many rights that we enjoy today.
Essentially a vast majority of privacy,
autonomy, and even speech and assembly
rights would have to be overturned as
well.
Quote:
oh it’ so nice to
not really care either
way,
out of curiosity, if
you don't care either way, why are you so
concerned over natural vs. Personal
rights?
Quote:
besides i’m in
the military, so i’ve my fair share of
killing so I cant really condemn anyone
who gets an
abortion.
I am sorry for you.
You seem to have an aversion to your job
and I also support your right not to do
it. I also support other organizations
devoted to bringing the military home as
quickly as possible.
A small question. I thought you were a
law student?
|
neo_1978
Experienced User , Rather EHEALTHy
Joined: 15 Dec 2004 Posts: 50 Location: somewhere
Posted: 12-17-04 17:15pm
All good questions and yes i'm a student
of military law also known as the uniform
code of military justice, and no I dont
have and bad feelings about what we do,
its part of our job and not our choice.
And you are the first one to ever tell me
that all cases citing roe would be
overturned if roe were changed, i'm not
aware of what procedure would allow that,
do you happen to have a resource?
|
neo_1978
Experienced User , Rather EHEALTHy
Joined: 15 Dec 2004 Posts: 50 Location: somewhere
Posted: 12-17-04 17:51pm
Oh, by the way, don't take my inquiry
about a source the wrong way, I must
confess i'm not all that familiar with the
procedures of the court as the law I study
has only been affected by the supreme
court on very few occasions.
|
Tazzy D
Advanced Support Team
Joined: 30 Oct 2004 Posts: 3717 Location: , va
Posted: 12-17-04 19:49pm
Okay well there is only one law in my eyes
and the supreme court is not it. There is
only one judge either way you look at
it...
|
jenn_smithson
Active User, Really EHEALTHy
Joined: 15 Nov 2004 Posts: 808 Location: Texas
Posted: 12-17-04 20:11pm
neo_1978
wrote:
all good questions and yes
i'm a student of military law also known
as the uniform code of military justice,
and no I dont have and bad feelings about
what we do, its part of our job and not
our choice. And you are the first one
to ever tell me that all cases citing roe
would be overturned if roe were changed,
i'm not aware of what procedure would
allow that, do you happen to have a
resource?
i've never studied military law or even
read up on it but I think that all facets
of the law are interesting in their own
way.
As for your question of the procedure to
overturn all cases resting on roe, there
isn't one to my knowledge. However, it
follows a logic that if you overturn
something that is somewhat like the middle
card in a house of cards, then other cards
or rights would fall as well. Most
likely it would not happen all at once,
but it does seem to me that other
challenges would quickly arise to strike
down the other rights that have come about
since roe. The first case that I think
would be challenged right after that would
probably be lawrence v. Texas. There
are also some other cases, ones involving
compulsory blood testing by the police
that also could be challenged successfully
as they are based on the right to bodily
autonomy founded in roe.
To answer your question, it would not
happen all at once. However, there is a
propensity for it to occur gradually
through new challenges being raised.
|
jenn_smithson
Active User, Really EHEALTHy
Joined: 15 Nov 2004 Posts: 808 Location: Texas
Posted: 12-17-04 20:28pm
jlee77
wrote:
he can be a law student in
the military. And you knew that as well
but are catching on to being abnoxious
which is what this forum is about so
congrats!!!
I believe it's spelled
obnoxious, with an '.O'. If you're going
to be insulting me, the least you could do
is spell it correctly.
Actually, this whole thread is about the
law which you commented on in a different
thread. I made this thread specifically
for you since you were finding other
subjects "completely boring". You said
you were interested in the law and that
you had been around the law for quite some
time. I started this so you would have a
place to post and on a subject you
actually found interesting, instead of
sociology.
|
neo_1978
Experienced User , Rather EHEALTHy
Joined: 15 Dec 2004 Posts: 50 Location: somewhere
Posted: 12-17-04 20:57pm
Thanks for the reply jenn, I could easily
see all those cases reviewed under the new
circumstance if roe were to be overturned,
but a direct overturning of those cases
would be unlikely due to other
circumstances unique to each case...But
like you pointed out i'm having trouble
find the exact course of action.
And military law is quite interesting,
much faster than civilian law, not always
as "fair" but that is a vague term at
best...
|
jenn_smithson
Active User, Really EHEALTHy
Joined: 15 Nov 2004 Posts: 808 Location: Texas
Posted: 12-17-04 23:12pm
jlee77
wrote:
oh, and you are extremely
obnoxious. Tata!
pot...Kettle...Black.
And, yes, I do know that I just called
myself obnoxious but I can understand how
someone like you would think that about
someone like me. In fact, I find you
calling me that rather ironic as well.
That's quite a few ironies all packed into
just a few days.
|
jenn_smithson
Active User, Really EHEALTHy
Joined: 15 Nov 2004 Posts: 808 Location: Texas
Posted: 12-17-04 23:25pm
Anyway.
Neo, i'm curious. I have been hearing
reports about lawsuits being filed by
soldiers against the various branches of
the military because they are having their
tours of duty expanded. From a military
law perspective, do their arguments hold
water? Will they be taken seriously?
Do they have any chance of winning at
all?
Peace,
jenn
|
neo_1978
Experienced User , Rather EHEALTHy
Joined: 15 Dec 2004 Posts: 50 Location: somewhere
Posted: 12-18-04 00:21am
Very good question and that is a very
interesting facet of military law, as many
don't know this but when a civilian takes
the oath to enlist in the armed forces
they voluntarily relinquish their
rights....This being said, it’s quite hard
for a member of the military to sue the
government. Well it’s difficult for
anyone, much less someone without the
rights that a civilian would enjoy. So
with that fact in mind, as a general rule,
these types of suits rarely have merit.
Now in these particular suits, it seems
the soldiers are on very shaky ground,
they are trying to fight a policy enacted
by the very congress that is mostly still
in office following the last election.
Without a full understanding of military
law that would seem as a mute point, but
for a member of the military the process
is different. Whereas a civilian would
hire a lawyer to fight their battles,
service members most often petition their
congressional representatives to plead
their case....So a paradox exists in
asking a politician to argue against his
own decision. So to sum up, these
soldiers have little chance of overturning
the stop-loss policy in its current form,
unless the public outcry becomes loud
enough to embarrass those in charge.
My personal opinion, which counts for very
little considering my rank, is that these
few soldiers show that the majority of our
service members are dedicated and willing
to make the ultimate sacrifice. I am not
condemning these men, but after serving I
cannot imagine leaving my peers to do the
work I should be helping with, and these
men signed on for one-year contracts while
we have active duty marines, sailors, and
soldiers that have been in country for 21
months at last count…..So I will leave you
with those facts to form your own opinion
about these men….
Please forgive the long post, you have hit
on a subject that is close to home...
|
Moira
Experienced User , Rather EHEALTHy
Joined: 21 Nov 2004 Posts: 302 Location: somewhere where it rains a lot
Posted: 12-18-04 07:21am
neo_1978
wrote:
very good question and that
is a very interesting facet of military
law, as many don't know this but when a
civilian takes the oath to enlist in the
armed forces they voluntarily relinquish
their rights....
excuse my stupidity, but is there a list
of what rights they lose ie a contract?
Is it clearly outlined?
|
jenn_smithson
Active User, Really EHEALTHy
Joined: 15 Nov 2004 Posts: 808 Location: Texas
Posted: 12-18-04 18:36pm
I don't know about that, moira, but I do
know that when you join the military, they
ask you to sign a loyalty oath and a few
other contracts on top of that. However,
it is unconstitutional to force or demand
a civilian to sign a loyalty oath. So,
right there at the beginning, they have to
do something that a civilian is protected
from doing at all.
I'd be interested in hearing a run down of
their rights as well. I do understand
that due to the structure the military has
to be, that they couldn't have soldiers
arguing rights in a battle zone.
|
neo_1978
Experienced User , Rather EHEALTHy
Joined: 15 Dec 2004 Posts: 50 Location: somewhere
Posted: 12-18-04 18:43pm
I expected that to be hard to understand,
just understand that members of the
military lose all rights under the
traditional bill of rights, but also gain
rights under the ucmj upon entering into
the military...Which is effectively when
they take the oath. Now, the rights
under the ucmj are quite different than
what is found in the bill of rights.
Here is a decent site for a breakdown of
the ucmj.
don't forget to fix the h in the link, why
is this forum so quirky about that????
|
steen
Extremely EHEALTHy
Joined: 18 Nov 2004 Posts: 1797 Location: Upper Midwest
Posted: 12-18-04 19:54pm
Neo, american legal codes are rooted in
british common law.
A case example was sent to me, referring
to a case in the middle ages, called the
"twin slayer," where abortion was found to
be legal.
Here is the reference that was sent to me.
I am sure you can get it through your
law library
the title is:
the phoenix of abortional freedom: is a
penumbral or ninth-amendment
right about to arise from the ashes of a
fourteenth-century
legislative common-law liberty?
Pages 335 to 410
by cyril c. Means, jr.
|
neo_1978
Experienced User , Rather EHEALTHy
Joined: 15 Dec 2004 Posts: 50 Location: somewhere
Posted: 12-18-04 23:42pm
Steen,
thanks, I will look it up and give a
review as soon as I track it down. Not
surprising, as the practice of abortion
was around long long ago...
The site is not a replacement for professional medical opinion, examination, diagnosis or treatment. Always seek the advice of your medical doctor or other qualified health professional before starting any new treatment or making any changes to existing treatment. Do not delay seeking or disregard medical advice based on information written by any author on this site. No health questions and information on eHealth Forum is regulated or evaluated by the Food and Drug Administration and therefore the information should not be used to diagnose, treat, cure or prevent any disease without the supervision of a medical doctor. Posts made to these forums express the views and opinions of the author, and not the administrators, moderators, or editorial staff and hence eHealth Forum and its principals will accept no liabilities or responsibilities for the statements made.
Schizophreniahealth
This page was last updated on June 11, 2008
