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To: Sub-Driver

I didn’t realize that Roe “legalized” abortion. I thought we already had abortions prior, and Roe, more or less, “mandated” abortions.


7 posted on 01/20/2008 5:21:02 AM PST by BobL (http://www.brusselsjournal.com/blog/4556 (here is where the real Europe is going))
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To: BobL
Abortion was legal in some states, but not all states. Different states had varying laws on when an abortion was legal and when it was not. The real "Cliff-notes" version of what Roe v. Wade does is this.

The court holds that the decision to terminate a pregnancy is protected by the "right to privacy" found in the Fourteenth Amendment.* Because of that, and because abortion in the first trimester is not more dangerous to the mother than is full-term child birth, the state may not regulate abortion in any way so long as it is performed by a physician in the first trimester. In the court's words, in the first trimester, "the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State."

After the first trimester, the "State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health." That means things like the licensing of the physician, where it may be performed, and things like that.

Finally, after "viability", state regulation protective of fetal life is valid. After the point of viability, the state may go so far as to proscribe any abortion, except when necessary to preserve the life and health of the mother. In dicta, the court mentioned that viability "is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks."

So, in short, Roe v. Wade holds that the state may not regulate abortion at all in the first trimester, may regulate abortion only to protect the mother from the end of the first trimester to viability, and may proscribe abortion altogether, except those required to preserve the health or life of the mother, after viability.

One interesting point is that Justice O'Connor raised years later is that Roe is on a "collision course with itself." As science and technology push the date of viability up toward the beginning of pregnancy, it may render Roe moot. As it stands, the medically accepted point of viability is 23 weeks, not 28 as it was in the time of Roe, and most hospitals will not perform abortions after the 22nd week.



* Don't ask me how they found that right; it involved a lot of legal gymnastics, including the holding in Griswold v. Connecticut (the case that overturned laws banning contraceptives) that rights specified in the Constitution have "penumbras", which include other rights required to give the specified rights "substance". This is one of the big reasons people say Roe v. Wade is "bad law."
10 posted on 01/20/2008 7:11:23 AM PST by The Pack Knight (Duty, Honor, Country.)
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To: BobL
I didn’t realize that Roe “legalized” abortion. I thought we already had abortions prior, and Roe, more or less, “mandated” abortions.

Only four states had legalized abortion for cases other than rape, incest or the mother's life being endangered before Roe.

15 posted on 01/20/2008 8:37:18 AM PST by Ol' Sparky (Liberal Republicans are the greater of two evils)
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