restricted access Chapter 7: The Regulation of Abortion
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CHAPTER 7 The Regulation of Abortion CHAPTERS 4 AND 5 ARGUED that the Supreme Court interprets the First Amendment religion guarantees according to what I call the epistemological standard. Chapter 6 maintained that beliefs about the personhood or humanity of fetuses twenty weeks or younger are religious according to this epistemological standard. Thus, legislation bearing upon abortions performed before the twenty-first week of pregnancy touches significantly on a matter of religious belief. The religion guarantees therefore apply to all such legislation. Because the Establishment Clause is the religion guarantee of greater relevance to most such legislation, I call the approach employed here the "Establishment Clause approach." By this I mean the approach to abortion-related legislation that reflects a recognition of the religious dimension of abortion and, consequently, of the relevance of the religion guarantees to the constitutionality of such legislation. The present chapter and the one to follow are devoted primarily to applying the Establishment Clause approach to selected areas of legislative concern. There is no attempt at completeness. In the present chapter some issues are discussed because their treatment helps explain the meaning, implications, and advantages of the Establishment Clause approach . These include issues surrounding required pathology reports, written consents and recordkeeping. The discussion of these issues shows that the Establishment Clause approach entails what I call the Neutrality Principle. This principle is sometimes acknowledged and employed by the Court and is, I maintain, superior to reliance on accepted medical practict:, which is the Court's most common alternative. The Establishment Clause approach is also shown to be free of the defects 191 192 Chapter 7 that Justice O'Connor correctly attributes to Roe's trimester framework . In addition, the chapter discusses state requirements designed to protect the life chances of older fetuses. Chapter 8 discusses restrictions on public funding for abortions, information requirements, required spousal and parental consent, and required parental notification. The Trimester Framework and Its Exceptions Justice Blackmun, writing for the Court in Roe v. Wade, divided pregnancy into three roughly equal segments, or trimesters. In the first of these, "the abortion decision and its effectuation must be left to the medical judgement of the pregnant woman's attending physician."! In the second trimester, "the State ... may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health."2 Finally, in the last trimester, "the stage subsequent to viability, the State in promoting its interest in the potentiality of human life, may ... regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgement, for the preservation of the life or health of the mother."3 While the Court continues to discuss abortion in terms of these trimesters , exceptions allowed by the majority and criticisms leveled by Justice O'Connor provide ample justification for abandoning this framework. The present chapter reviews reasons for abandoning the trimester framework and proposes an alternative. This alternative, which is based on the Establishment Clause analysis in Chapter 6, provides a principled basis for most of the Court's decisions concerning the state's regulation of abortion. It also answers the concerns expressed well by Justice O'Connor. According to the trimester approach, state abortion regulations that are "reasonably related to maternal health" cannot be applied before the second trimester. The reason is that "abortion in early pregnancy, that is, prior to the end of the first trimester, although not without its risk, is now relatively safe. Mortality rates for women undergoing early abortions, where the procedure is legal, appear to be as low as or lower than the rates for normal childbirth."4 This restriction on state regulations generated confusion almost immediately . On the one hand, states could not regulate first-trimester abortions. On the other hand, such abortions were to be left to the medical judgment of physicians. Where does this leave a state require- Regulation of Abortion 193 ment that first-trimester abortions be performed by licensed physicians? The Court seems to allow this requirement when it leaves first-trimester abortion decisions up to the medical judgment of the attending physician . But if a state allows only physicians to perform first-trimester abortions because the state is concerned about maternal health, then this physicians-only requirement is an exception to the rule that state regulations designed to protect maternal health may not be applied to abortions performed during the first trimester. Faced with the choice, the Court had no difficulty accepting physicians -only requirements as exceptions to its rule...