Saturday, December 04, 2004

BBC NEWS Americas Abortion battle rages on in US

Gee whiz...

I finally managed to finish reading Roe v Wade yesterday and it didn't so much as legalise abortions but decide when the state would have a compelling interest in overriding the mother's right to privacy (and hence bodily autonomy...please don't ask me how they link, the Justices weren't clear on it. Justice Renquist dissenting).

Point to note, that the Texan abortion laws which Roe was against had not been changed since 1877. But more importantly, it did permit for abortions in the cases where the mother's life was at stake or when it was due to sexual violence.

What is interesting is that the Supreme Court basically determined that much of the then legislated abortion statutes in the various states (and their history) were not so much as to protect the unborn fetus but in the interest of the mother's health and safety because of the high mortality rates these operations entailed in the 19th Century.

Hence, the ratio decidendi (ruling of the Court), is actually very narrow. "A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment." Hence, a) Abortion laws would be deemed unconstitutional if they barred abortions in the first trimester. b) Past that, State may regulate such operations in a manner reasonable to maternal health. c) Past viability, abortions may be banned, subject to the state's determination of the preservation of the mother's life and health (Legal jargon: Best interests). Hence the Texan abortion statutes were unconstitutional.

Interesting point to note is the state in which it places the physician. He can do anything he judges to be in his professional best interests subject to compelling state interets (see current ho haa over the so called Conscience Laws).

Reasoning was rather simple. They weighed the rights of the mother to that of the state and found that the state had two compelling interests. One would be that of the mother and the other, the fetus i.e. ball of cells or unborn child.

With regards to the State's interest to the mother's health, the compelling point is that post first trimester because the mortality and complication rate of such operations in this period would be lower than that of pregnancy.

With regards to the State's interest to 'potential life', it boils down to 'viability' in that the fetus would be capable of meaningful life outside of the mother. Currently, the average is 24 weeks i.e. second trimester, but has been going down due to the advances in medical science.

Personally, I feel the last bit was put in to prevent a situation whereby advances in medical science would render abortions so safe that there would be no basis for the state to legislate against it short of the fetus actually being born and hence having citizenship rights. To be fair, I doubt any Court or Legislature would have accepted such a carte blanc ruling (Singapore prohibits abortions post 24 weeks. Britain's Common law and statutes do recognise certain fetus rights, see Re S cf. St George's NHS Trust v S, as well as Congenital Disabilities (Civil Liability) Act 1976.)

*Sigh*...and now to formulate a case that would call for the overruling of Roe v Wade to establish abortion in US on a firmer basis.


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