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Abortion and the Law
repunk ^ | 5/28/02 | Abbey Carter

Posted on 06/05/2002 5:20:07 PM PDT by katherineisgreat

May 28, 2002

Abortion and the Law
Abbey Carter

Abortion is one of the most defining political and moral issues of the past 30 years. For years Americans have used abortion as a political litmus test to determine a candidates true political ideology. Procured abortion is the purposeful termination of a pregnancy, and that is the type of abortion this paper will discuss. Procured abortion is more commonly referred to as just “abortion.” There are over 4,000 of these abortions a day. [1] About 24% of all pregnancies end in abortion. Also, 43% of all women will have had at least one abortion by the time they are 45 years old. [9] The twisted legal rights to abortion have been the subject of fierce debate since the Supreme Court’s January 22, 1973 decision in the matter of Roe vs. Wade that declared state laws prohibiting abortion unconstitutional. Abortion supporters were jubilant, detractors stunned and deeply saddened, and the legal community was aghast. It was wryly called “Harry’s Abortion” by the law clerks in Harry Blackmun’s office. This was in reference to the high number of illegal abortions among the well off, and scorn because it was feasible that Blackmun’s ruling could possibly be because not based on law. Blackmun wrote the majority opinion in Roe. [10] This decision has made it legally impossible for states to outlaw abortion. Over the course of the nearly thirty years, it has been reduced and nearly overturned twice. Regardless of a person’s opinion about abortion, it can be easily said that Roe is bad law. The court itself questions its validity. [2] Abortion is such an issue because some people claim that it is the taking of an innocent human life. These people call themselves “pro-life.” Other’s claim that it is the woman’s prerogative to decide whether to have a baby. These people call themselves “pro-choice.” There have been many disputes over abortion by various branches of Government and the question is: who has the authority to make abortion law, the States or the Federal Government? Should Roe v. Wade be overturned?

Abortion was not illegal in most states until the 1800’s. This was because scientific knowledge of pregnancy was very limited. So little was known about pregnancy that abortion only became a crime when a fetus was “quickened” or had started to kick in the uterus. In 1867 the New York State Medical Society resolved that from conception “there is a living creature in the process of development..... interruption of this process always results in a destruction of life.” As a result, forty states soon passed laws prohibiting abortion, or built up old laws that also prohibited abortion. [3, 28] Prior to the Courts decision in Roe v. Wade most states had restrictions on abortion, some states like Texas outlawing it in all but very serious circumstances. Other states like California and New York had begun the move to liberalize their abortion laws. The process was moving forward naturally as the views of most Americans became more liberal. Under the name Jane Roe, a Texas woman named Norma McCorvey took the state to court saying that it’s abortion laws were unconstitutional because they violated her 9th and 14th Amendment rights. Since, McCorvey has converted to Catholism and is working to reverse the ruling that bears her name. She testified before the Senate Subcommittee on the Constitution, Federalism and Property Rights saying:
“The affidavit submitted to the Supreme Court didn't happen the way I said it did, pure and simple. I lied! Sarah Weddington and Linda Coffey needed an extreme case to make their client look pitiable. Rape seemed to be the ticket. What made rape even worse? A gang rape! It all started out as a little lie, but my little lie grew and became more horrible with each telling.” [8]

Roe’s sister case, Doe v. Bolton, was a challenge to laws restricting abortion in the state of Georgia. Since Roe was a class action law suit, Doe was decided at the same time as Roe. Therefore Roe has always been the case with higher visibility. Three years later and after two children born by McCorvey in the absence of the abortion option, the case made it to the Supreme Court. The court found that the right to privacy established in Griswold vs. Connecticut and protected by the substantial due process clause of the 14th amendment was enough to strike the law down as unconstitutional. According to Roe v. Wade, the states have no right to outlaw abortion during the first trimester (or three months) of pregnancy. [1] It took abortion from a matter that had been kept to separate states, to one that the federal government now controlled.

Many problems have arisen since the initial decision in Roe vs. Wade. Many people have challenged it’s constitutionality. The ruling has been described as a stark example of when a court jumps it’s constitutional boundaries and becomes involved in the making rather than the interpretation of laws. In Article I, Section I of the Constitution, it is stated: All legislative powers herin granted shall be vested in a Congress of the United States...” Says Michigan probate judge Randall Hekman,

“Who has the authority to say this law is invalid? Courts have no authority to strike a law down unless it violates a specific constitutional provision. Otherwise, the power to make or rescind laws is the sole responsibility of the legislature whose members are directly accountable to the people.” [3, 79-80]

The judge’s words would seem to undermine the concept of judicial review, but not necessarily. The court found that the constitutionality of abortion rested mainly in the right to privacy created by the court in 1965 in Griswold v. Connecticut, which struck down a state law outlawing birth control as being intrusive. Note that the word privacy does not appear in the Constitution once. In Roe, the justices found that the right to privacy established in Griswold was “broad enough to encompass” the right to have an abortion. One may wonder how a right to privacy would make abortion legal. Even if used as such, abortion is much different than birth control. That is because after the point of conception, life begins to form, prior to conception there was no life growing. There is no point after conception at which the court can say: before there was no life, and now there is. Birth control and abortion are fundamentally different because birth control prevents conception, while abortion seeks to destroy and or remove the embryo or fetus that has been created as a result of conception. Justices Rehnquist, Thomas, White and Scalia stated in 1992 in Planned Parenthood v. Casey:

“The Roe Court reached too far when it analogized the right to abort a fetus to the rights involved in Pierce v. Society of Sisters, 268 U.S. 510; Meyer v. Nebraska, 262 U.S. 390; Loving v. Virginia, 388 U.S. 1; and Griswold v. Connecticut, 381 U.S. 479, and thereby deemed the right to abortion to be ‘fundamental.’ None of these decisions endorsed an all encompassing ‘right of privacy,’ as Roe, supra, 410 U.S. at 152-153, claimed. Because abortion involves the purposeful termination of potential life, the abortion decision must be recognized as sui generis, different in kind from the rights protected in the earlier cases under the rubric of personal or family privacy and autonomy.” [2]

State laws restricting abortion would not invade the privacy rights of the masses; à la the state monitoring those women who petition for abortions, that is not their purpose. Attorney Louie Brandeis probably explained it the best- “The right to be left alone has come to encompass privacy.” [7] In the first presentation of Roe, McCorvey’s lawyer could not locate the provisi on of the Constitution that was violated by Texas law. Her opponent “misfired” from the beginning. Roe’s lawyer went back to the second hearing and was finally able to convince the justices that abortion fell under the right to privacy created in Griswold. [1] Further concerns about nature of the court’s ruling have been raised:
“The opinion's [Roe v. Wade] author, Justice Harry A. Blackmun, said in one internal court memo that he was drawing ‘arbitrary’ lines about the times during pregnancy when a woman could legally receive an abortion. In another memo, Justice Potter Stewart, who joined the Blackmun opinion, said the determination in the opinion about these lines was ‘legislative.’” [4]

This would support the theory that the court “made law” in its decision to legalize abortion. What the court did in this case was to take power from not only the states, but the people who in essence approved the laws that made abortion illegal. Such an abuse of power is unacceptable. The methods used to reach the decision reached in Roe illustrate how the court had no right to be melding in the issues that had been stirring in Congress for years. The result is that the constructed right to abortion has stopped in its tracks years of meaningful lawmaking. A case in point is 1976’s Planned Parenthood v. Danforth. Here the court overturned the new restrictions on abortion passed by the legislature of Missouri. If, after Roe, the people of Missouri still saw fit to restrict abortion, then their will should have been honored by the court. Instead, the court overturned these restrictions, building on the lies and the “fundamental right to abortion” as established in Roe. The court also struck down the 1978 anti-abortion restrictions of Akron, Ohio as “unconstitutional” in 1983 in Akron v. Akron. [1] Then things began to change.

When Roe was decided, the New York Times wrote that they hoped the decision would settle the issue for good. The opposite has occurred. Although no decision has overturned it, these rulings have greatly reduced the scope of Roe. Part of the problem with Roe in 1973 was that there were no sonograms and fetal technology was not as it is today. The judges noted in Roe that the right to life was protected by the 14th amendment, and if the time when life began was determined, Roe would be invalid. The point of viability was placed at 24-28 weeks while today with new medical technology it can come as early as 20 weeks. Human gestation is approximately 36 weeks. Viability is the point at which the fetus can survive outside the uterus. The court was concerned that the trimester framework set up would be constitutionally shaky and could result in the destruction of innocent unborn life. This is because, aside from conception, there is no point from which the beginning of life can be established. Therefore, changes to Roe would have to be made. The court ruled that state property could not be used for abortions. It also said that because viability could be miscalculated, tests could be required before late term abortions. [11]

The first case in which the court generally opposed abortion was 1989’s Webster vs. Reproductive Health Services. Missouri had again placed more restrictions on abortion, and this time they hoped that their wishes would be upheld. Portions of the Missouri code sought to stop “abortion on demand”- or abortion in cases other than life, incest, rape, health, or suicide. The beginning of the code also stated that life begins at conception. The court ruled Missouri’s statues Constitutional and allowed the states more rights to limit or restrict abortion. Because the court did not overturn the portion of the law stating that life begins at conception, in essence they also stated that life begins at conception. Webster also stated that state property cannot be used for abortions. Still, post- Webster the only restrictions a state may place on abortion are: Informed consent, Parental consent, Parental Notice, and Viability. [5] Both laws involving parents or guardians must have judicial bypasses however. This means that a minor who is required by law to have a parent’s consent for an abortion can go to a court and tell the judge that she is competent enough to make the decision for herself. Minors in Texas “Court shop”- that is only asking for an abortion from courts they know will be sure to grant one, traveling to more liberal districts to have their hearings. A planned parenthood spokesperson approves of this behavior. [12]

One of the biggest questions involving the abortion issue is whether or not abortion is a state issue. Before Roe, abortion was a matter left to the individual states. In Wisconsin, a law was passed in 1997 that made Partial Birth Abortion illegal in virtually any circumstance and carried a life sentence in prison for any doctor who preformed an it. This form of abortion, also called intact dilation and extraction is literally “3 inches from infanticide.” The doctor induces the woman to go into labor, breeches the fetus (makes sure it comes out feet first,) delivers all but the head, jabs a pair of scissors into the back of the Fetus’ skull, takes a suction machine and vacums out the contents of the brain. The Fetus was inches from the legal protection of the U.S. Constitution. Pro- choicers say that the procedure is rarely used, but then turn around and decry laws banning it. [13] Because of the nature of the procedure, Partial Birth cases have incited much controversy in the U.S. and Congress. [3, 32] But is a child conceived in Wisconsin any different than one conceived in California? State laws today form a confusing “patchwork.” State laws range from many extremes; 28 allow abortion in cases of life , incest or rape only, 5 allow it in cases with life, health, rape and incest only and 15 states allow abortion in virtually any circumstance. [1.] Because of these differences, it should be clear that abortion is fundamentally not a state issue, and that even if restored to the states in it’s entirety abortion law would still not be equal. It is feasible that if Roe was overturned, and abortion law reverted to the states, that those fetuses in states allowing abortion could have a class action law suit brought on their behalf, on the basis that other Fetuses across the country had rights they did not, therefore violating the equal protection clause of the Constitution. With this century's dropping time to viability and it’s knowledge of fetal health via ultrasound and the Constitution’s protection of living beings, Roe’s strict trimester system could be shaky and unconstitutional in and of itself. But that’s where Planned Parenthood of Southeastern Pennsylvania vs. Casey comes in.

Only about three years after the court nearly overturned Roe vs. Wade in Webster, the court allowed more restrictions on Abortion but reaffirmed it’s central idea in PPSP vs. Casey. Pennsylvania prides itself on having strict abortion laws. For years they have attempted to restrict abortion and have always gotten pushed back. They tried again after Webster to push the court farther. Under increasing evidence that the framework laid out by Roe was becoming archaic, the Court threw out the trimester framework. The court now ruled that there is a “fundamental right to abortion” and that states can’t place an “undue burden” on that right. [6] This also touches on the issue of viability. Prior to viability, the court views outlawing abortion as an “undue burden” on the woman. This is because in the court’s eyes the pregnancy is at that point a burden on the woman producing no life. The court here runs amiss of legal objectivity in assuming that pregnancy is a burden. Many woman are highly offended by such a statement that seeks to contradict what they view as their natural role in life. [14] But what about Webster? In Webster didn’t the court concur with the statement that said life begins at conception? This moves society closer to a time and place in which life can be destroyed because it is a burden, regardless of the fact that it is life. Assisted suicide could feasibly be ruled constitutional using Roe as case law: “More recently, the debate over judicial involvement in value-laden issues has been fueled by two federal court rulings that, by extending Roe’s doctrine of the right to privacy into a broad right of personal autonomy, forbade states to illegalize physician-assisted suicide.” [15] Casey did not overturn Roe because of “Consideration of the fundamental constitutional question resolved by Roe v. Wade, 410 U.S. 113, principles of institutional integrity, and the rule of stare decisis [case law] require that Roe's essential holding be retained” [1] The court also noted: “A reexamination of the principles that define the woman's rights and the State's authority regarding abortions is required by the doubt this Court's subsequent decisions have cast upon the meaning and reach of Roe's central holding, by the fact that THE CHIEF JUSTICE [sic] would overrule Roe, and by the necessity that state and federal courts and legislatures have adequate guidance on the subject.” [1] This means that the court had wanted to look at Roe again because a) Cases after Roe had cast doubt on it and b) Chief Justice Rehnquist wanted to overrule Roe. Clearly, there are serious problems with abortion law in America. How should these matters be resolved? Should they be resolved by an act of Congress, a constitutional amendment, separate state laws, or should Roe be overturned?

An Amendment to the Constitution is one answer to the abortion issue. This idea holds several advantages. It would set the abortion debate in stone and would make uniform law throughout the country that could be followed for years to come. However, there would probably be no consensus reached either. 38 out of 50 states must ratify an amendment to the Constitution. [15] Amendments can take years to pass Congress. If you threw open a National Constitutional Convention, there would be no telling what would occur. It is highly likely that any amendment about abortion would never become law. Therefore, this is the least effective way to address abortion law in America.

There is also the chance that the Court will overturn Roe vs. Wade. As stated before, Wisconsin passed a ban on Partial Birth Abortion in 1997. They were immediately challenged in court. A federal court hearing had been set as of 1999. If this case reaches the Supreme Court (Roe took more than three years to reach the high court,) it is very possible that Roe may be overturned. The only problem is that this would bring us back to square one, and once again leave abortion law waiting for another Roe. This is because since Marbury v. Madison the court has barely restrained itself in the broad powers that it has over Congress. Americans rarely challenge this legal precedent. However, some lawyers disapprove of it. A recent article about American Politics from Scotland says: “ In 1803, the decision in the case of Marbury v. Madison established the supremacy of the US Supreme Court - a judicial supremacy that surely cannot be expatriated.” [16] Therefore, to involve the court even more in the soup of legislation would not be a good idea.

Leaving abortion as a state issue and lifting the sanctions on the states imposed by Roe is also an option. This would allow the people of a state to determine if they want abortion to be legal or not. Many pro-lifers take this view because the states would be more likely to collectively reduce the amount of abortions than the federal government would. However, as explained before, this view would violate the fetuses’s rights of due process and what is engraved in the façade of the Supreme Court building- “Equal Justice Under Law.” This is because the rights of a fetus in say North Dakota, a state with roughly two doctors willing to perform abortions, and the rights of a Fetus in New York City would be very different.

An act of Congress would be an excellent way to address the abortion issue. It would affect the entire country, and therefore assure that fetuses conceived in different states would assume the same equal protection. It would also make law about abortion the way it was meant to be made; the Congressmen would be direct representatives of the people acting in their interests, not justices appointed seven presidents ago. However, it would be hard to reach a consensus. Conflicts between the House and the more liberal Senate would be sure to occur. But it is the only way for abortion law to be made in this country. The Congress has legislative powers but is also federal. Abortion is a federal issue, but one that should be decided by the American people, not the court system.

Such an act would not only would it make abortion law standard throughout the nation, it could be repealed much more easily than a court decision could be overturned. As stated before, The United States Congress has a unique position to decide abortion law in this country. The law would be uniform and equal because they are national, and it would also have the authority of the people because they are a legislative body. It would allow the public to voice their opinions about abortion, but would also allow educated individuals with legal background into Roe, Webster and other cases to debate before colleagues. In the end both houses would probably wind up compromising, and the skirmish could continue throughout the Government. However, this time laws would be on a federal basis. Possibly later on, when the waters have calmed, a Constitutional Amendment could be probed as a more permanent solution. The court would be hard put to overturn laws made by the Congress with the stamp of the people if Congress worked hard to reach a consensus and showed how they have the power to dictate abortion law in this country.

To create such an opportunity, pro-life and pro-choice members of both houses could introduce separate bills of what they see as the ideal abortion policy. Bills could be debated on, doctors could be brought in, feminists, priests and any number of persons used as authorities before subcommittees in Congress. If the call was raised and debate thrown open, the energy in Congress would be enough to start such a frenzy of lawmaking. The issue could now be in the Congress’ hands. Congress never saw power it didn’t like. Today, citizens could create this idea in Congress by emailing, writing and petitioning their representatives and writing letters to their newspapers. As previously noted, eventually a Constitutional Amendment could be reached, and finally the issue of abortion could be back in the hands of the American people, for better or for worse.


1. Rein, Mei Ling. Abortion: An Eternal Social and Moral Issue. Gale Group. New York. 2000.

2. “Abortion Law”

3. Hekman, Randall J. Justice for the Unborn. Servant Books. Ann Arbor. 1984.

4. Woodward, Bob. “The Abortion Papers.” The Washington Post. January 22, 1989.

5. “Summary of U.S. State Abortion Laws.”

6. Peterson, Virginia. Abortion: A serious issue. Gale Group. New York. 2000.

7. “The A-word.”

8. “’Jane Roe tells true story behind Roe v. Wade”

9. Alan Guttmacher Insitute.

10. Connolly, D.J..“Harry’s Abortion.” 2000.

11. “Major laws restricting Abortion, U.S. and Canada.”

12. Elliott, Janet. “Pregnant Minors seeking judicial bypass of parental notification laws avoid Harris county courts.” Houston Chronicle. March 25, 2002.

13. “Abortion procedure ban report”

14. “Feminists for Life.”

15. Gordon, Evelyn. “Is it legitimate to criticize the Supreme Court?” Azure Magazine. March 22, 1999.

16. Warner, Gerald. “Dubya is back in the Saddle of Sanity.” Scotland on Sunday. May 19, 2002.

TOPICS: Constitution/Conservatism; Culture/Society; Government
KEYWORDS: abortion; consitution; law; roe; scotus
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Here's the paper I wrote for my issues analysis in my 9th grade (Anti) American Government class.
1 posted on 06/05/2002 5:20:07 PM PDT by katherineisgreat
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To: kinganamort;juliernr21;redlipstick;summer;floriduhvoter;katherineharris4congress;oldfriend...
2 posted on 06/05/2002 5:21:48 PM PDT by katherineisgreat
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To: katherineisgreat
What grade did you get? (curiousity killed the cat, but the satisfaction of knowing brought him back again!!)
3 posted on 06/05/2002 5:23:00 PM PDT by Black Agnes
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To: Black Agnes
I submitted last week. I don't know yet.

The teacher glared at me the whole time I was presenting my case against the whole "abortion is a consitutional right" thing.

She's a liberal, I'm in a public high school and she HATES MY VIEWS. (which is partly why I wrote this-- I have a rep. to uphold.)

4 posted on 06/05/2002 5:29:06 PM PDT by katherineisgreat
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To: katherineisgreat
5 posted on 06/05/2002 5:31:13 PM PDT by SpookBrat
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To: SpookBrat
thanks :)
6 posted on 06/05/2002 5:32:40 PM PDT by katherineisgreat
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To: katherineisgreat
You're welcome. It looks great and I want to read it. I'm just in a hurry right now. I'll be back. :)
7 posted on 06/05/2002 5:35:02 PM PDT by SpookBrat
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To: katherineisgreat
There are links at this site:

Rightgrrl! A Meeting Ground for Conservative and Prolife Women!
... Library What We Think Cartoons. 04-08-02: Rightgrrl has not shut down :)
The guestbook will reopen, and new articles will be posted on 04-10-02. ...
Description: Unlike our feminist sisters, we here at Rightgrrl believe there are many female points of view. Rightgrrl...

which show many of the early proponents of women's rights were staunchly against abortion.

8 posted on 06/05/2002 5:37:59 PM PDT by backhoe
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To: backhoe
I've read about Susan B. Anthony's opposal to abortion... Thanks for the link!
9 posted on 06/05/2002 5:41:09 PM PDT by katherineisgreat
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To: katherineisgreat
43% of all women will have had at least one abortion by the time they are 45 years old.

If this is true, I am afraid abortion is here to stay.

10 posted on 06/05/2002 5:45:42 PM PDT by Jeff Gordon
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To: katherineisgreat
thanks for the ping... its as good a read as the first time i read it before posting to repunk... ;) she better give you an A or im coming over there and regulating... hehe.
11 posted on 06/05/2002 5:56:06 PM PDT by kinganamort
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To: kinganamort

Just found out her college days involved NOW.

Hope by giving me a decent grade (hopefully) she'll have to betray the "sisterhood"

12 posted on 06/05/2002 6:00:27 PM PDT by katherineisgreat
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To: katherineisgreat
Good job and very courageous. (^:

You might be interested in an article at, today (James Dobson's "Focus on Family" website). Mothers with babies suffering from terminal illnesses are now being given the option of hospice care instead of abortion. It's making a profound and positive difference for these mothers....and the attending medical staff who no longer participate in taking a life, but in giving comfort.

13 posted on 06/05/2002 6:15:08 PM PDT by Ragtime Cowgirl
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To: katherineisgreat
Very good work for a 9th-grader! I hope your teacher doesn't take a whole bunch of points off for misspelling "its" (possessive has NO apostrophe, "it's" is the contraction for "it is").
14 posted on 06/05/2002 6:19:34 PM PDT by VeritatisSplendor
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To: VeritatisSplendor;ragtimecowgirl
15 posted on 06/05/2002 6:47:54 PM PDT by katherineisgreat
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To: katherineisgreat
Excellent! I can hardly believe you're so young -- thought your paper was the work of a college student.

As a homeschooling parent, I award you an A+.

16 posted on 06/05/2002 7:01:25 PM PDT by gumbo
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To: gumbo
I'm thinking about homeschooling next year. I hate school, and generally speaking I love it. Do you have any input?

My Mom homeschools my little sister.

17 posted on 06/05/2002 7:07:16 PM PDT by katherineisgreat
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To: katherineisgreat
Excellent deserves an A....still can't believe you are so young and can research & write so well.
18 posted on 06/05/2002 7:18:50 PM PDT by JulieRNR21
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To: JulieRNR21
Everything I need to know I learn from freerepublic!
19 posted on 06/05/2002 7:28:39 PM PDT by katherineisgreat
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To: VeritatisSplendor; gumbo
you guys should check out her other papers: abbey is truly special
20 posted on 06/05/2002 7:29:16 PM PDT by kinganamort
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