Academic journal article Issues in Law & Medicine

A Road Map through the Supreme Court's Bach Alley

Academic journal article Issues in Law & Medicine

A Road Map through the Supreme Court's Bach Alley

Article excerpt

(ProQuest: ... denotes formulae omitted.)

"As today's decision indicates, medical technology is changing, and this change will necessitate our continued functioning as the nation's 'ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States.'"1

"It is certainly difficult to understand how the Court believes that the physicianpatient relationship is able to accommodate any interest that the State has in maternal physical and mental well-being in light of the fact that the record in this case shows that the relationship is non-existent."2

-Justice Sandra Day O'Connor (1983)

I. Introduction

A decade after Roe v. Wade3 and Doe v. Bolton,Ą Justice O'Connor pointed out that the Supreme Court had assumed the role of the National Abortion Control Board. Before effective abortion clinic regulations can be drafted or implemented, the constraints of the Supreme Court's abortion doctrine-that Justice O'Connor only partially outlined-must be thoroughly understood. In the wake of Gonzales v. Carhart,5 clinic regulations need to be reasonably designed to protect maternal health. If clinic regulations are going to meet that standard, the short- and long-term risks of abortion need to be better understood.

Professor Calhoun wants to "bring pro-lifers and pro-choicers together to prevent future Gosnells."6 While preventing "future Gosnells" is a worthy goal, we question several of his assumptions. A majority of people-including pro-lifers and pro-choicers-already support health and safety regulations for abortion procedures. The aim should be effective protection for women's physical and psychological health, not merely the bargain-basement goal of stopping the worst practitioners. The main obstacle to effective health and safety regulations is not a lack of majority support, but rather the Supreme Court's abortion doctrine, which was misguided in its inception and has been contradictory in its application. As we hope to show, clinic regulations are fully justified by the substandard conditions in clinics and by the inherent risks of abortion procedures.

II. The Impact of Roe v. Wade & Doe v. Bolton

The Supreme Court, in its 1973 abortion decisions-Roe v. Wade and Doe v. Bolton- swept away the abortion laws of all fifty states.7 The Court virtually exempted abortion from the state public health systems by declaring it to be the only medical procedure that is a constitutional right, and by holding that there is no compelling interest in regulations that protect maternal health in the first trimester.

Congress could not fill the vacuum. Congress exercised virtually no power over abortion before Roe unless it was tied to an enumerated power, such as the Mail or the Spending Clause.8 Since Roe, Congress's power over abortion is still disputed.9 Since Congress's constitutional authority to fill the gap is doubtful, and the state and local governments have been disabled by the Court, no level of government has clear authority to act without federal court approval.

A. No Record in Roe or Doe

The Court created the vacuum without any trial record in either Roe or Doe. The factual records in Roe and Doe were non-existent-consisting merely of a complaint, an affidavit (unsigned by Jane Roe, signed by Mary Doe), and motions to dismiss.10 In both cases, the three-judge district courts proceeded to hold two-hour oral hearings in which the judges addressed procedural and jurisdictional issues more than substantive constitutional or medical questions. There were no factual hearings. No witnesses testified. No testimony was given. No medical data was reviewed. There was no opportunity for cross-examination. And then, without any intermediate appellate review in either case, the Supreme Court granted review

The Justices took Roe and Doe under the misapprehension that they were merely dealing with the application of Younger v. …

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