Fwd: Re: "Whole-Birth Abortion" Law

[Bill Funk]

An intact non-viable fetus outside the womb by definition will not
survive even with heroic efforts.  Inasmuch as Casey only protects the
right to abortion of non-viable fetuses, any fetus which by accident
escapes the birth canal intact will not survive outside the womb.
Absent heroic efforts the fetus detached from the placenta probably dies
rather quickly without any human intervention.  Unless we change a lot
of laws, the failure of a doctor or a hospital even to treat a fully
developed adult is not a crime even if death results.
So, I would think the proposed whole birth abortion law would not
achieve the purpose its proponents seek -- a living child.  But I think
it probably would be constitutional because I don't think it would cause
any undue burden on the woman obtaining an abortion of a non-viable
fetus -- whether one defines abortion as the termination of pregnancy or
as a dead fetus.

Bill Funk
Lewis & Clark Law School