EXCERPTS FROM THE 1973 ROE V WADE SUPREME COURT DECISION
1) Jane Roe, a single woman who was residing in Dallas County, Texas, instituted this federal action in March 1970 against the District Attorney of the county. She sought a declaratory judgment that the Texas criminal abortion statutes were unconstitutional on their face, and an injunction restraining the defendant from enforcing the statutes. Roe alleged that she was unmarried and pregnant; that she wished to terminate her pregnancy by an abortion “performed by a competent, licensed physician, under safe, clinical conditions”; that she was unable to get a “legal” abortion in Texas because her life did not appear to be threatened by the continuation of her pregnancy; and that she could not afford to travel to another jurisdiction in order to secure a legal abortion under safe conditions. She claimed that the Texas statutes were unconstitutionally vague and that they abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. By an amendment to her complaint, Roe purported to sue “on behalf of herself and all other women” similarly situated.
2) John and Mary Doe, a married couple, filed a companion complaint to that of Roe. They also named the District Attorney as defendant, claimed like constitutional deprivations, and sought declaratory and injunctive relief. The Does alleged that they were a childless couple; that Mrs. Doe was suffering from a “neural-chemical” disorder; that her physician had “advised her to avoid pregnancy until such time as her condition has materially improved” (although a pregnancy at the present time would not present “a serious risk” to her life); that, pursuant to medical advice, she had discontinued use of birth control pills; and that, if she should become pregnant, she would want to terminate the pregnancy by an abortion performed by a competent, licensed physician under safe, clinical conditions. By an amendment to their complaint, the Does purported to sue “on behalf of themselves and all couples similarly situated.”
3) 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 …. or among those rights reserved to the people by the Ninth Amendment….
4)It is thus apparent that, at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity to make this choice was present in this country well into the 19th century. Even later, the law continued for some time to treat less punitively an abortion procured in early pregnancy.
5) In 1970, after the introduction of a variety of proposed resolutions and of a report from its Board of Trustees, a reference committee noted “polarization of the medical profession on this controversial issue”; division among those who had testified; a difference of opinion among AMA councils and.committees; “the remarkable shift in testimony” in six months, felt to be influenced “by the rapid changes in state laws and by the judicial decisions which tend to make abortion more freely available; ” and a feeling “that this trend will continue.” …The resolutions asserted that abortion is a medical procedure that should be performed by a licensed physician in an accredited hospital only after consultation with two other physicians and in conformity with state law, and that no party to the procedure should be required to violate personally held moral principles….
6) The position of the American Public Health Association. In October, 1970, the Executive Board of the APHA adopted Standards for Abortion Services. These were five in number:
“a. Rapid and simple abortion referral must be readily available through state and local public health departments, medical societies, or other nonprofit organizations.”
“b. An important function of counseling should be to simplify and expedite the provision of abortion services; it should not delay the obtaining of these services.”
“c. Psychiatric consultation should not be mandatory. As in the case of other specialized medical services, psychiatric consultation should be sought for definite indications, and not on a routine basis.”
“d. A wide range of individuals from appropriately trained, sympathetic volunteers to highly skilled physicians may qualify as abortion counselors.”
“e. Contraception and/or sterilization should be discussed with each abortion patient.”
“Recommended Standards for Abortion Services… (1971). Among factors pertinent to life and health risks associated with abortion were three that ‘are recognized as important’: ”
“a. the skill of the physician,”
“b. the environment in which the abortion is performed, and above all”
“c. the duration of pregnancy, as determined by uterine size and confirmed by menstrual history.”
7) Three reasons have been advanced to explain historically the enactment of criminal abortion laws in the 19th century and to justify their continued existence. 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. The appellants and 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.
8) 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. This was particularly true prior to the 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.
9) ….This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.
10) We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified, and must be considered against important state interests in regulation.
11) We note that those federal and state courts that have recently considered abortion law challenges have reached the same conclusion. A majority, in addition to the District Court in the present case, have held state laws unconstitutional, at least in part, because of vagueness or because of overbreadth and abridgment of rights. …
To summarize and to repeat:
A state criminal abortion statute of the current Texas type, that excepts from criminality only a lifesaving 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…. it is so ordered.
Now, a reading from the proposed REPRODUCTIVE HEALTH CARE ACT
AN ACT RELATING TO HEALTH AND SAFETY –
12) THE REPRODUCTIVE HEALTH CARE ACT
Introduced By: Representatives Ajello, Walsh, Casimiro, Donovan, and Ranglin- Vassell
Date Introduced: January 31, 2018 Referred To: House Judiciary
It is enacted by the General Assembly as follows:
SECTION 1. Title 23 of the General Laws entitled “HEALTH AND SAFETY” is hereby
amended by adding thereto the following chapter:
CHAPTER 4.13 REPRODUCTI
VE HEALTH CARE ACT
(a) Neither the state, nor any of its agencies, or political subdivisions shall:
(1) Restrict an individual person from preventing, commencing, continuing, or terminating that individual’s pregnancy prior to fetal viability;
(2) Interfere with an individual person’s decision to continue that individual’s pregnancy after fetal viability;
(3) Restrict an individual person from terminating that individual’s pregnancy after fetal when necessary to preserve the health or life of that individual;
(4) Restrict the use of evidence-based, medically recognized methods of contraception or abortion except in accordance with evidence-based medically recognized standards; or
13) (5) Restrict access to evidence-based, medically recognized methods of contraception or abortion or the provision of such contraception or abortion except in accordance with evidence- based medically recognized standards.
(b) For purposes of this section, “fetal vi
ability” means that stage of gestation where the attending physician, taking into account the particular facts of the case, has determined that there is a reasonable likelihood of the fetus’ sustained survival outside of the womb with or without artificial support.
(c) Notwithstanding the foregoing, this section shall not be construed to:
(2) Prevent the department of health from applying to licensed health care facilities that provide abortion, any generally applicable regulations or standards that are in accordance with evidence-based, medically accepted standards for the provision of abortion, provided that such adoption or enforcement is not a pretext for violating subsection (a) of this section.
14) SECTION 2. Chapter 11-3 of the General Laws entitled “Abortion” is hereby repealed in its entirety:
SECTION 3. Chapter 23-4.8 of the General Laws entitled “Spousal Notice for Abortion” is hereby repealed in its entirety.
SECTION 4. Chapter 23-4.12 of the General Laws entitled “Partial Birth Abortion” is hereby repealed in its entirety
SECTION 5. Section 11-23-5 of the General Laws in Chapter 11-23 entitled “Homicide” is hereby repealed
SECTION 6. Section 27-18-28 of the General Laws in Chapter 27-18 entitled “Accident and Sickness Insurance Policies” is hereby repealed
15) SECTION 7. Section 36-12-2.1 of the General Laws in Chapter 36-12 entitled “Insurance Benefits” is hereby amended to read as follows:
(a) The state of Rhode Island or any city or town shall not include in any health insurance contracts, plans, or policies covering employees, any provision which shall provide coverage for
2 induced abortions (except where the life of the mother would be endangered if the fetus were
3 carried to term, or where the pregnancy resulted from rape or incest).
16) This act would prohibit the state from restricting any person from terminating any pregnancy prior to fetal viability which is defined as that stage of gestation where the fetus could survive outside of the womb. It would also repeal the laws regulating abortion, spousal notice of abortion, partial birth abortion, and abortion as murder. It would also prohibit any health insurance contracts from not covering procedures involving abortion.
This act would take effect upon passage