Rubio: Life begins at conception

[GMDino]

http://healthcare.findlaw.com/patient-rights/how-did-abortion-become-legal.html

Quote:So how did abortion become legal? In a landmark decision, the U.S. Supreme Court decided that the right to an abortion was part of a woman's right to privacy.

Roe v. Wade

Federal law has protected a woman's right to choose an abortion since the U.S. Supreme Court's Roe v. Wade decision in 1973.

Norma McCorvey, the plaintiff, was an unmarried pregnant Texas woman who sought an abortion, but was denied one under Texas law. She filed a federal lawsuit under the pseudonym "Jane Roe" to have the Texas law declared unconstitutional. Roe argued that a law prohibiting her from obtaining an abortion violated her constitutional right to privacy.

The U.S. Supreme Court, in 7-2 vote, agreed with Roe that Texas's law criminalizing abortion violated her right to privacy. But the Court held that states do have an interest in ensuring the safety and well-being of pregnant women, as well as the potential of human life.

Acknowledging that the rights of pregnant women may conflict with the rights of the state to protect potential human life, the Court defined the rights of each party by dividing a pregnancy into three 12-week trimesters:

• During a pregnant woman's first trimester, the Court held, a state cannot regulate abortion beyond requiring that the procedure be performed by a licensed doctor in medically safe conditions.
  

• During the second trimester, the Court held, a state may regulate abortion if the regulations are reasonably related to the health of the pregnant woman.
  

• During the third trimester of pregnancy, the state's interest in protecting the potential human life outweighs the woman's right to privacy, and the state may prohibit abortions unless abortion is necessary to save the life or health of the mother.
  

The Court further held that a fetus is not a person protected by the constitution. The decision in Roe v. Wade did not eliminate the controversy surrounding abortion, however. The laws surrounding abortion, ranging from methods, to funding, to parental consent and more, continue to be debated and shaped to this day. The following are a few examples.

Planned Parenthood v. Casey

In 1992, the Supreme Court reaffirmed its position that abortion should be legal in the case of Planned Parenthood v. Casey.

The case challenged a series of Pennsylvania regulations -- ranging from a mandatory waiting period for abortion to a spousal consent provision -- which limited a woman's access to abortion.

Though the Supreme Court upheld most of the Pennsylvania laws, the Court struck down the spousal consent requirement as an "undue burden" on married women seeking abortions.

Gonzales v. Carhart

Most states no longer try to ban abortions. Instead, legislatures tend to limit the time period during which a woman can have an abortion, as well as the procedures used to perform abortions.

One common restriction is a limitation on a procedure known as a "partial birth" or late term abortion.

In 2003, Congress passed the Partial-Birth Abortion Ban Act, which prohibited the intact dilation and extraction abortion procedure. The procedure was typically used during the second trimester, sometimes after the point of viability.

In 2007, the Supreme Court's ruling in Gonzales v. Carhart upheld the ban on partial birth abortion as constitutional, concluding that it did not impose an undue burden on a woman's right to choose an abortion.

- See more at: http://healthcare.findlaw.com/patient-rights/how-did-abortion-become-legal.html#sthash.gSa8ittK.dpuf





https://www.law.cornell.edu/supremecourt/text/410/113#writing-USSC_CR_0410_0113_ZO

Quote:Opinion

BLACKMUN, J., Opinion of the Court
MR. JUSTICE BLACKMUN delivered the opinion of the Court.


This Texas federal appeal and its Georgia companion, Doe v. Bolton, post, p. 179, present constitutional challenges to state criminal abortion legislation. The Texas statutes under attack here are typical of those that have been in effect in many States for approximately a century. The Georgia statutes, in contrast, have a modern cast, and are a legislative product that, to an extent at least, obviously reflects the influences of recent attitudinal change, of advancing medical knowledge and techniques, and of new thinking about an old issue.


We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one's thinking and conclusions about abortion.
In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem.


Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection. We seek earnestly to do this, and, because we do, we [p117] have inquired into, and in this opinion place some emphasis upon, medical and medical-legal history and what that history reveals about man's attitudes toward the abortion procedure over the centuries. 


We bear in mind, too, Mr. Justice Holmes' admonition in his now-vindicated dissent in Lochner v. New York, 198 U.S. 45, 76 (1905):


[The Constitution] is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.


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V

The principal thrust of appellant's attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant would discover this right in the concept of personal "liberty" embodied in the Fourteenth Amendment's Due Process Clause; or in personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras, see Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); id. at 460 (WHITE, J., concurring in result); or among those rights reserved to the people by the Ninth Amendment, Griswold v. Connecticut, 381 U.S. at 486 (Goldberg, J., concurring). Before addressing this claim, we feel it desirable briefly to survey, in several aspects, the history of abortion, for such insight as that history may afford us, and then to examine the state purposes and interests behind the criminal abortion laws.



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VI

It perhaps is not generally appreciated that the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage. Those laws, generally proscribing abortion or its attempt at any time during pregnancy except when necessary to preserve the pregnant woman's life, are not of ancient or even of common law origin. Instead, they derive from statutory changes effected, for the most part, in the latter half of the 19th century. [p130]




1. Ancient attitudes. These are not capable of precise determination. We are told that, at the time of the Persian Empire, abortifacients were known, and that criminal abortions were severely punished. [n8] We are also told, however, that abortion was practiced in Greek times as well as in the Roman Era, [n9] and that "it was resorted to without scruple." [n10] The Ephesian, Soranos, often described as the greatest of the ancient gynecologists, appears to have been generally opposed to Rome's prevailing free-abortion practices. He found it necessary to think first of the life of the mother, and he resorted to abortion when, upon this standard, he felt the procedure advisable. [n11] Greek and Roman law afforded little protection to the unborn. If abortion was prosecuted in some places, it seems to have been based on a concept of a violation of the father's right to his offspring. Ancient religion did not bar abortion. [n12]




2. The Hippocratic Oath. What then of the famous Oath that has stood so long as the ethical guide of the medical profession and that bears the name of the great Greek (460(?)-377(?) B. C.), who has been described [p131] as the Father of Medicine, the "wisest and the greatest practitioner of his art," and the "most important and most complete medical personality of antiquity," who dominated the medical schools of his time, and who typified the sum of the medical knowledge of the past? [n13] The Oath varies somewhat according to the particular translation, but in any translation the content is clear:

I will give no deadly medicine to anyone if asked, nor suggest any such counsel; and in like manner, I will not give to a woman a pessary to produce abortion, [n14]




or




I will neither give a deadly drug to anybody if asked for it, nor will I make a suggestion to this effect. Similarly, I will not give to a woman an abortive remedy. [n15]



Although the Oath is not mentioned in any of the principal briefs in this case or in Doe v. Bolton, post, p. 179, it represents the apex of the development of strict ethical concepts in medicine, and its influence endures to this day. Why did not the authority of Hippocrates dissuade abortion practice in his time and that of Rome? The late Dr. Edelstein provides us with a theory: [n16] The Oath was not uncontested even in Hippocrates' day; only the Pythagorean school of philosophers frowned upon the related act of suicide. Most Greek thinkers, on the other hand, commended abortion, at least prior to viability. See Plato, Republic, V, 461; Aristotle, Politics, VII, 1335b 25. For the Pythagoreans, however, it was a matter of dogma. For them, the embryo was animate from the moment of conception, and abortion meant destruction of a living being. The abortion clause of the Oath, therefore, "echoes Pythagorean doctrines," [p132] and "n no other stratum of Greek opinion were such views held or proposed in the same spirit of uncompromising austerity." [n17]



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VII

Three reasons have been advanced to explain historically the enactment of criminal abortion laws in the 19th century and to justify their continued existence. [p148]




It has been argued occasionally that these laws were the product of a Victorian social concern to discourage illicit sexual conduct. Texas, however, does not advance this justification in the present case, and it appears that no court or commentator has taken the argument seriously. [n42] The appellants and [i]amici contend, moreover, that this is not a proper state purpose, at all and suggest that, if it were, the Texas statutes are overbroad in protecting it, since the law fails to distinguish between married and unwed mothers.




A second reason is concerned with abortion as a medical procedure. When most criminal abortion laws were first enacted, the procedure was a hazardous one for the woman. [n43] This was particularly true prior to the [p149] development of antisepsis. Antiseptic techniques, of course, were based on discoveries by Lister, Pasteur, and others first announced in 1867, but were not generally accepted and employed until about the turn of the century. Abortion mortality was high. Even after 1900, and perhaps until as late as the development of antibiotics in the 1940's, standard modern techniques such as dilation and curettage were not nearly so safe as they are today. Thus, it has been argued that a State's real concern in enacting a criminal abortion law was to protect the pregnant woman, that is, to restrain her from submitting to a procedure that placed her life in serious jeopardy.




Modern medical techniques have altered this situation. Appellants and various amici refer to medical data indicating that abortion in early pregnancy, that is, prior to the end of the first trimester, although not without its risk, is now relatively safe. Mortality rates for women undergoing early abortions, where the procedure is legal, appear to be as low as or lower than the rates for normal childbirth. [n44]Consequently, any interest of the State in protecting the woman from an inherently hazardous procedure, except when it would be equally dangerous for her to forgo it, has largely disappeared. Of course, important state interests in the areas of health and medical standards do remain. [p150] The State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient. This interest obviously extends at least to the performing physician and his staff, to the facilities involved, to the availability of after-care, and to adequate provision for any complication or emergency that might arise. The prevalence of high mortality rates at illegal "abortion mills" strengthens, rather than weakens, the State's interest in regulating the conditions under which abortions are performed. Moreover, the risk to the woman increases as her pregnancy continues. Thus, the State retains a definite interest in protecting the woman's own health and safety when an abortion is proposed at a late stage of pregnancy.



The third reason is the State's interest -- some phrase it in terms of duty -- in protecting prenatal life. Some of the argument for this justification rests on the theory that a new human life is present from the moment of conception. [n45] The State's interest and general obligation to protect life then extends, it is argued, to prenatal life. Only when the life of the pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or fetus not prevail. Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance of the belief that life begins at conception or at some other point prior to live birth. In assessing the State's interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone. [p151]





...


Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer. [p160]



...


There has always been strong support for the view that life does not begin until live' birth. This was the belief of the Stoics. [n56] It appears to be the predominant, though not the unanimous, attitude of the Jewish faith. [n57] It may be taken to represent also the position of a large segment of the Protestant community, insofar as that can be ascertained; organized groups that have taken a formal position on the abortion issue have generally regarded abortion as a matter for the conscience of the individual and her family. [n58] As we have noted, the common law found greater significance in quickening. Physician and their scientific colleagues have regarded that event with less interest and have tended to focus either upon conception, upon live birth, or upon the interim point at which the fetus becomes "viable," that is, potentially able to live outside the mother's womb, albeit with artificial aid. [n59] Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks. [n60] The Aristotelian theory of "mediate animation," that held sway throughout the Middle Ages and the Renaissance in Europe, continued to be official Roman Catholic dogma until the 19th century, despite opposition to this "ensoulment" theory from those in the Church who would recognize the existence of life from [p161] the moment of conception. [n61] The latter is now, of course, the official belief of the Catholic Church. As one brief amicus discloses, this is a view strongly held by many non-Catholics as well, and by many physicians. Substantial problems for precise definition of this view are posed, however, by new embryological data that purport to indicate that conception is a "process" over time, rather than an event, and by new medical techniques such as menstrual extraction, the "morning-after" pill, implantation of embryos, artificial insemination, and even artificial wombs. [n62]





...




In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake. We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a nonresident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches [p163] term and, at a point during pregnancy, each becomes "compelling."



...


XII

Our conclusion that Art. 1196 is unconstitutional means, of course, that the Texas abortion statutes, as a unit, must fall. The exception of Art. 1196 cannot be struck down separately, for then the State would be left with a statute proscribing all abortion procedures no matter how medically urgent the case.[/i]