H.R. 4292, The Born-Alive Infants Protection Act

[Rick Duncan]

In an off-list post, someone suggested to me that the
purpose of this Bill is to paint abortion advocates
like NARAL into "such an extreme political corner that
they become political poison." No doubt that is a good
reason for pro-life allies to support this Bill,
because it will force abortion rights advocates to
reveal the full breadth of their position.

But I think it is also designed to paint the Supreme
Court in an extreme political corner. Might the Court
strike the law down under Roe-Casey-Stenberg, at least
insofar as it unduly burdens access to abortions or
does not adequately safeguard the woman's "health?"

To the extent that the law forbids a doctor from
completing a pre-viability abortion merely because the
child slips an inch or two out of position prior to
the evacuation of its cranial contents, doesn't it
unduly burden a woman's access to an abortion
procedure that she had a right to choose? Even after
viability, this regulation of abortion does not
contain an exception for the health of the mother and
remember in Doe v. Bolton the Court defined health as
follows: "the medical judgment may be exercised in the
light of all factors--physical, emotional,
psychological, familial, and the woman's age--relevant
to the well-being of the patient." 410 U.S. at 179.
What is "familial" health by the way? The Court could
apply Doe and conclude that a woman's emotional and
psychological and familial "well-being" may not be
well served if a baby somehow survives her scheduled
abortion procedure. Give President Gore a couple of
appointments (with NARAL applying the litmus test) and
you may well have more than enough votes to strike
down the law.

Kudos to Brad Clanton for bringing this Bill to the
attention of the list and to Eugene for bringing
thoughtful non-profs like Brad onto the list.

--Rick Duncan


--- stoke001 <stoke001 at MAROON.TC.UMN.EDU> wrote:
> Lynne Henderson writes:
>
> > I'm a bit unclear here--why is everyone discussing
> *Roe* as if *Casey*
> > didn't substantially change *Roe?* Lynne
>
> Good point.  Push it one step further:  *Carhart*
> arguably expands
> the abortion right considerably.  Is it fair to
> characterize *Carhart*'s
> "health" holding as being that the right to abortion
> must include the
> right to have an abortion in the way safest to the
> women's health
> and that it is (apparently) *irrelevant* whether the
> best way to
> protect a woman's health in such circumstances (the
> circumstances that might be thought to make D&X the
> "health-
> preferred" mode of committing an abortion) might be
> a live-birth c-
> section?  If that is part of the holding of
> *Carhart*, is there an
> argument that Roe-Casey-Carhart in reality embrace a
> right to
> terminate the pregnancy in the manner most likely to
> cause the
> death of the infant?  If not, and if the health
> risks were equal, why
> couldn't the state require that pregnancies be
> terminated by c-
> section rather than dismemberment, just to see if
> the child might
> be able to survive?  (And isn't there a case holding
> it unconst. to
> require an abortionist to use the method most likely
> to result in a
> live birth rather than a death?  I think I've asked
> this before, but I
> don't recall getting an answer.)
>
> I am not endorsing this argument, mind you.  I am
> firmly in the
> Rick Duncan "once you've gone down this road . . . "
> camp.  But
> the "right to kill" -- the right to have a *dead*
> fetus -- does seem to
> follow from the macabre logic of the
> Roe-Casey-Carhart line,
> doesn't it?
>
> Michael Stokes Paulsen
> University of Minnesota Law School
>
>
>
>
>  -----Original Message-----
> > From: Discussion list for con law professors
> > [mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of
> Cornell Clayton
> > Sent: Tuesday, September 26, 2000 4:11 AM To:
> > CONLAWPROF at listserv.ucla.edu Subject: Re: H.R.
> 4292, The Born-Alive
> > Infants Protection Act
> >
> >
> > I take Leslie's point that the right can be
> conceptualized either way.
> > But, in the context of the Roe line of cases
> (extending back through
> > Griswold and Skinner), its seems clear to me that
> the Court is
> > discussing the right to procreate.  (Although the
> right to physical
> > autonomy is certainly important we nevertheless
> recognize all sorts of
> > state limitations/intrusions upon that right --
> blood alcohol tests,
> > x-ray machines at airports, urine tests, etc.)
> I'm interested if
> > others think that under Roe (whatever one's thinks
> of its wisdom), the
> > state retains the authority to force women seeking
> abortions to
> > undergo procedures that would keep the fetus
> alive? CWC
> >
> > At 08:24 AM 9/26/00 -0400, you wrote:
> > >I don't see why it would be silly at all.  It all
> depends whehter the
> > right is
> > >control over the use made of her own body, a
> physical autonomy right,
> > linked to
> > >the common right of control over whether one
> receives medical
> > >treatment, or whether it is a right to decide
> whether one does or
> > >does not produce
> > offspring.
> > >If it is the former, then such things as fetal
> transplants, which are
> > genuinely
> > >within the realm of medical possibility in the
> foreseeable future,
> > >could
> > be made
> > >mandatory upon women who want to rid themselves
> of a fetus perceived
> > >as burdensome.  If it is the right to decide on
> procreating, then the
> > >state
> > could
> > >never mandate, for instance, that the extra
> fertilized eggs produced
> > >in
> > in-vitro
> > >fertility treatment be kept alive and made
> available to people
> > >wanting children.  Of course it might be both.
> LFG
> > >
> > >Cornell Clayton wrote:
> > >
> > >> At 03:08 PM 9/25/00 -0600, Michael McConnell
> wrote:
> > >> >The constitutional right at issue in Roe was
> the right to
> > >> >terminate
> > one's
> > >> >pregnancy... There is no independent right to
> kill the fetus, or
> > >> >to guarantee that the termination of pregnancy
> produces a dead
> > >> >fetus.
> > >>
> > >> My understanding of the Roe line of cases is
> that it protected the
> > >> right
> > to
> > >> decide when and whether to procreate, not
> simply against the
> > >> invasion of one's body or person.  That right,
> as I understand it,
> > >> exists up to the point of natural conception.
> In Roe it was
> > >> conditioned by the state's compelling interests
> (including
> > >> protecting the health and safety of the woman
> and protecting the
> > >> potential for human life).  So construed, one
> > might
> > >> well argue that there is a right to decide
> whether a fetus, once
> > aborted, is
> > >> kept alive by the state against the woman's
> wishes. Wouldn't it be
> > >> silly
> > to
> > >> think that the constitution protects a woman's
> right to have an
> > abortion, if
> > >> the state retained the power to force her to do
> it in a way that
> > >> kept the fetus alive?
> > >>
> > >> Cornell Clayton
> > >> Washington State University
> > >
> >


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