The United States Supreme Court Failed to Follow Over Thirty Years of Precedent by Replacing Individualized Medical Judgment With Congressional Findings

• Publication year: 2022

41 Creighton L. Rev. 219. THE UNITED STATES SUPREME COURT FAILED TO FOLLOW OVER THIRTY YEARS OF PRECEDENT BY REPLACING INDIVIDUALIZED MEDICAL JUDGMENT WITH CONGRESSIONAL FINDINGS

Creighton Law Review

Vol. 41

INTRODUCTION

Abortion rates do not appear to be affected by the legality of abortion; instead, the legal status affects the safety of the abortion procedure.(fn1) A recent, global study by the World Health Organization and the Guttmacher Institute concluded that the legal status of abortion does not influence a woman's decision whether to have an abortion.(fn2) The study found that the legality affects and increases the dangers involved with the procedure.(fn3) In an illegal environment, the abortive procedure is likely to be unsafe.(fn4) In contrast, when abortion is legal, the procedure will likely be provided in a safe manner.(fn5) Since the United States Supreme Court decided Roe v. Wade(fn6) in 1973, American women have had the option to obtain safe and sanitary abortive procedures, not only for elective abortions, but also for terminations that are necessary for the health or life of the woman.(fn7) This Note argues that the recent United States Supreme Court decision in Gonzales v. Carhart(fn8) could lead to a chilling effect in medicine and have a detrimental impact on women's health and society.(fn9)

This Note proceeds in three sections.(fn10) First, this Note examines a brief history of the privacy right that encompasses a woman's right to choose whether to terminate her pregnancy.(fn11) This Note then advances the argument that the Supreme Court's decision in Gonzales substantially deviated from its decision in Stenberg v. Carhart(fn12) seven years earlier and, in turn, could have a detrimental effect on society as congressional findings replaced medical judgment.(fn13) Finally, this Note concludes with a brief synopsis of the argument and proposes that the legislative and the judicial branches should leave determinations of medical necessity to licensed, practicing physicians who care for patients on an individualized basis in an effort to provide the best possible medical care.(fn14)

BACKGROUND

A. PRE-ROE HISTORY OF ABORTION IN THE UNITED STATES

Before the United States Supreme Court's decision in Roe v. Wade(fn15) recognized a woman's right to choose whether to terminate her pregnancy, and effectively legalized pre-viability abortion, some American women were desperate to find physicians who would perform abortions in safe and clean environments.(fn16) While some women successfully obtained referrals to skilled physicians, others were unable to obtain such referrals and resorted to inept, non-physician abortionists.(fn17) Prior to Roe, urban police officers confirmed that the image of an unsavory man performing abortions on pregnant women in cheap hotel rooms was an accurate account of some of the abortions performed.(fn18) It was in this type of atmosphere and under these kinds of procedures that a woman could end up hospitalized with an infection, bleeding, or even dead.(fn19) Among other methods, non-physician abortionists used household products and utensils to terminate a woman's pregnancy, such as bicycle spokes, Lysol douche, garden hoses, potassium permanganate corrosive tablets, a slippery elm stick, turpentine by mouth, bleach douche, intrauterine installation of kerosene and vinegar, or a coat hanger.(fn20)

Women had serious complications from these illegal, non-medical abortions, and physicians who cared for the sick women referred to the intensive care units as the "infected OB."(fn21) During the 1950s and 1960s, on any given afternoon in Los Angeles County, the hospital treated fifty to one hundred women in the "infected OB" unit.(fn22) The women in these units were jaundiced from infection, were in shock with foul-smelling substances emanating from their uteruses, and some died, foaming at the mouth, from congestive heart failure.(fn23) In addition, thousands of women died from septic abortions.(fn24) Despite the fact the abortions were illegal, some women in desperate situations sought to terminate their pregnancies, and many paid with their lives.(fn25) For example, a physician in Sedalia, Missouri, was called into the emergency room to assess a woman who had obtained an illegal abortion:

That was when this call came, in the middle of the night, and when Duemler [Robert Duemler, physician] walked into the emergency room what he saw, in more places than he would have thought possible, was blood. There was blood on the walls. There was blood on the floor. There was blood on the gurney and on the towels and on the hands and arms of the emergency crew, who were silent now, and no longer moving rapidly. Beneath them lay a woman whose skin had gone pallid and slack, and when Duemler lifted her legs into the stirrups and cleaned some of the blood away, he saw that someone had pushed inside her vagina with a sharp instrument and aimed it toward the cervix and thrust straight up. The blood vessels to either side of the cervix had emptied all over the air force emergency room and in the car in which the woman's husband had driven her twenty miles, which was the distance between the hospital and the abortionist. The husband told Duemler they had five children already.(fn26)

Before Roe, some women sought to terminate their pregnancies despite the illegality of abortions.(fn27) Many of these women suffered significant health complications, and thousands died from infection.(fn28) Therefore, before Roe, some women were subjected to non-medical, illegal abortions and suffered negative health consequences, including death.(fn29)

B. AMERICAN LAW INSTITUTE'S MODEL PENAL CODE INCLUDED JUSTIFIED ABORTIONS

The American Law Institute ("ALI") proposed a Model Penal Code section on abortion in 1962 that included a subsection on lawful, justifiable abortions.(fn30) Approximately twenty-five percent of the states implemented the ALI Model Penal Code as a pattern for new legisla-tion.(fn31) For example, Georgia's legislature utilized the ALI Model Penal Code to formulate its 1968 criminal abortion statute, replacing statutory language that had been in effect for nearly a century.(fn32) The 1876 Georgia statute, like many other states' statutes, made abortion a crime unless it was necessary to preserve the woman's life.(fn33) In contrast, the abortion provision of the 1968 Criminal Code of Georgia mimicked the ALI Model Penal Code and provided an exception to the crime.(fn34) The exception stated that the criminal statute would not apply if a physician believed, based on medical judgment, the pregnancy endangered the health or life of the woman, or the fetus would suffer from a lethal or irremediable anomaly, or the pregnancy resulted from rape.(fn35) While both the 1968 Criminal Code of Georgia and the ALI Model Penal Code provided an exception to the crime of abortion, the codes also required that the authorizing physician submit a written statement to the hospital describing the circumstances under which the physician believed the abortion was justified.(fn36) An additional physician's judgment had to support the statement.(fn37) Under the ALI Model Penal Code, an abortion could be justified if the physician believed there was a substantial risk to the woman's physical or mental health, the child would be born with a serious defect, or because the pregnancy resulted from felonious intercourse, such as rape or incest.(fn38)

C. GRISWOLD V. CONNECTICUT: THE UNITED STATES SUPREME COURT RECOGNIZED MARITAL PRIVACY WITHIN THE PRIVACY RIGHT GUARANTEED BY THE PENUMBRAS OF THE BILL OF RIGHTS

In Griswold v. Connecticut,(fn39) the United States Supreme Court determined that a number of the guarantees found within the Bill of Rights had penumbras, which supported the enumerated rights.(fn40) To-gether, those penumbras created zones of privacy.(fn41) Without those peripheral rights, the Court noted the specific, enumerated rights in the United States Constitution would be less secure.(fn42) In Griswold, Estelle T. Griswold ("Griswold"), the Executive Director of the Planned Parenthood League of Connecticut, and C. Lee Buxton ("Buxton"), a physician and professor at Yale Medical School, appealed their convictions, as accessories, for violating Connecticut's birth control law by distributing information and medical advice to married couples to prevent conception.(fn43) Connecticut's aiding and abetting statute allowed the state to charge Griswold and Buxton as the principle offenders.(fn44) In the Circuit Court for the Sixth Circuit of Connecticut, Griswold and Buxton were prosecuted and found guilty of violating Connecticut's statute that prohibited the use of contraception because they assisted a married couple in obtaining contraception information.(fn45) Under Connecticut's contraception statute, a guilty party could be fined not less than fifty dollars, imprisoned at most one year, or could be both fined and imprisoned.(fn46) In the circuit court, Griswold and Buxton challenged the Connecticut statutes and argued that the statutes violated the Fourteenth Amendment.(fn47) Griswold and Buxton claimed the statutes deprived their patients, and themselves as the couple's physicians, of their liberty without due process.(fn48) Further, Griswold and Buxton alleged both the aiding and abetting and contraception statutes were an unjustifiable invasion of privacy...