what is the state's interest in a woman's pregnancy? [View All]

[iverglas]

I'm reposting this from a thread on the recent US Sup Ct decision in LBN. It's the core question. It's something everybody needs to answer before forming or expressing an opinion on how the state and the law can and should deal with abortion.


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Megahurtz wrote (I'm PMing directions to here):

what's the deal with one of the Supreme Court Justices (I think, have to look for a link)
that said in part something like:

"The Government has an interest in Fetal Life"

:wtf: :wtf: :wtf: :wtf: :wtf:

For what???

I heard this on a local News Station last night!!!

Sounds pretty sick to me and pretty weird to say the least. :wow:

Did anyone else hear that one?

On EDIT: Here it is:

>>>The majority (Conservative, emphasis mine) opinion written by Justice Anthony Kennedy rejected the argument the law must be struck down because it imposed an undue burden on a woman's right to abortion, that it was too vague or broad and it failed to provide an exception for abortions to protect the health of a pregnant woman.

"The government has a legitimate and substantial interest in preserving and promoting fetal life," Kennedy wrote in the 39-page opinion. He said the law would reduce the number of late-term abortions.<<<

http://www.reuters.com/article/newsOne/idUSWBT00684520070419

Now they want our Kids!

and I answered:




Well, I've been asking that forever -- because it actually comes from Roe v. Wade.

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0410_0113_ZO.html

From Blackmun:

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

... 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. 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.

Alrighty then, what IS this interest?

The reason we need to know is that once an individual establishes that a law interferes with the exercise of a right or freedom, the state (in the generic sense; this is how it works in Canada too, e.g.) has to show that it has an interest that it is advancing by interfering in the exercise of that right or freedom.

If a law prohibited the eating of pizza for breakfast, the state would have to show that eating pizza for breakfast causes the trains to run late, or something.

The state then has to justify the interference. I'm most familiar with the Canadian tests, so I'll use them just for demonstration purposes (the US tests vary somewhat, but the principles are similar): the interest being advanced is important ("compelling", at the top of the scale), the interference with the exercise of the right or freedom is rationally connected and proportionate to the advancement of the interest, the interference is the least possible in order to achieve that goal, etc.

But it all starts with identifying and proving the state's interest.

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. Appellant's arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman's sole determination, are unpersuasive. The Court's decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision.

Can the state just say it has an interest in controlling what I eat for breakfast? If not, why can it just say it has an interest in protecting "prenatal life"?

Without knowing *what* that interest IS, how can we tell how important it is, or how any particular law is meant to advance that interest, or how any interference with an individual right or freedom is rationally connected to that interest, or whether any such interference is proportionate to the state's interest??

And then there's this utter nonsense:

With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. 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.

Why on earth is the "compelling" point at viability?? If the state's interest is in perpetuating its population, for instance, what does (hypothetical, always remember) viability have to do with that? How can we know whether the state's interest is compelling if we don't know what it is?

To summarize and to repeat:

... (c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

... This holding, we feel, is consistent with the relative weights of the respective interests involved, with the lessons and examples of medical and legal history, with the lenity of the common law, and with the demands of the profound problems of the present day. The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests.

The state's interest in "protecting prenatal life", or in "the potentiality of human life" -- which are not even the same thing, and the second of which doesn't even make sense -- is the lynchpin of the whole thing. Pull it out, and the whole construct collapses.

If you ask me, it was never there in the first place. Texas simply never established what its interest was in women's pregnancies.


In Canada, the criminal law provision on abortion was struck down in 1988 (by then, nobody was paying much attention to it) on an appeal of Dr. Henry Morgentaler's conviction. The decision was based on very different grounds from the US decision. Here, it was the procedure for authorizing abortions that was challenged. A woman's need for an abortion had to be certified by a hospital committee (rubber-stamping was the rule by 1988, but practice was uneven across the country). It was that procedure that was found to violate women's rights to life, liberty and security of the person in a way that was not in accordance of the rules of fundamental justice (which include, e.g., due process).

What happened then was nothing. The federal govt could have re-legislated, in an attempt to create a procedure that did comply with the rules, but it didn't. So we have no law on abortion. Life is just fine.

In point of fact, NO procedure for permitting/deying abortion could ever comply with those rules. Any woman can die, or be harmed, by pregnancy or delivery, unpredictably. So a woman who had been denied an abortion that she just wanted on a whim and who then died of post-partum haemorrhage would have had her right to life violated by the decision to deny the abortion, and there is no way that due process could have been met, since she had done absolutely nothing wrong to deserve a death sentence.

What I'm getting at, though, is that the Supreme Court of Canada decision contains some of the same foolishness as Roe.

Even the estimable former Madam Justice Bertha Wilson wrote:
http://scc.lexum.umontreal.ca/en/1988/1988rcs1-30/1988rcs1-30.html
(her reasons start at p. 161 there, and they should be read by all)

In my view, the primary objective of the impugned legislation must be seen as the protection of the foetus. It undoubtedly has other ancillary objectives, such as the protection of the life and health of pregnant women, but I believe that the main objective advanced to justify a restriction on the pregnant woman's s. 7 right is the protection of the foetus. I think this is a perfectly valid legislative objective.

Why???

And if it is a valid legislative objective, perhaps it could justify legislation prohibiting the selling of tuna with mercury in it -- but how could it justify violating a woman's right to life, liberty and security in such a way that she could DIE?


So yes, your question is the fundamental one. What is the state's interest in a woman's pregnancy?

Unless we have an answer to that, we can't assess the legitimacy of what the state does to advance that interest.