Until a more significant ruling is handed down by the United States Supreme Court, its decisions of January 22, 1973 will be considered the reference points for future discussions about most of the legal aspects of the abortion question. On that day the Court, in separate cases, struck down dissimilar statutes from two different states. Howr- ever it instructed that its opinions in each case be con
sidered in tandem as providing a broad constitutional formula for dealing with the issues involved.
The purpose of this chapter is to review the Court's decisions from two perspectives. First, it is appropriate to summarize the general highlights for those rulings in order to establish the context of this discus
sion. Second, those special elements cf the Court's decisions which are applicable to this study will be ab
stracted and developed.
The Two Decisions
1. Roe vs. Wade^ found invalid an older type restrictive criminal statute of the State of Texas which
limited occasions for abortion to saving a mother's life.
The Court held such statutes unconstitutional and
violative of a woman's fundamental rights. Some of the
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more pertinent 'rulings of the Court in its rather lengthy opinion on this case follow.
a. A. mother and her physician have a consti
tutional right to decide whether or not to terminate her pregnancy.
b. However, this right is not absolute;
at certain compelling points it is subject to important and legitimate interests of the state.
c. On the otherhand the state may not indiscriminately restrict abortions to specified circumstances and/or conditions without regard to the stage of pregnancy.
d. During the first trimester the rights of the pregnant woman are pervasive and are not subject to any special regulation by the state.
e. At the end of the first trimester a compelling point is reached at which the state may have a legitimate interest in regulations pertaining to maternal health.
f. Between the first and third trimesters a state may regulate only concerning
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the abortion procedure (not the fact) and only to the extent that such interventions relate to maternal health.
g. State interests grow in substantiality as a woman approaches term. A second compelling point takes place at viability when the fetus is assumed to have achieved
the capability of meaningful life out
side the womb.
h. The Court observes that viability is usually placed at about twenty-eight weeks but may occur earlier, even at
twenty-four weeks. At this second compelling point during the third tri
mester, the Court rules that: "If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period except when it is necessary to preserve the life or health of the . mother."
2. Doe vs. Bolton^ the Court held invalid parts of a more recent, less restrictive statute of the State of
Georgia which imposed residential and certain procedural requirements as conditions for abortion.
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It made reference to the basic enabling principles set forth in Roe vs. Wade and then went on to make several rulings relevant to this more liberal statute.
a. Georgia's residency requirements
limiting abortions to state residents was ruled unconstitutional since it
could not be shown to be related to the legitimate interest of the state and it violated the constitutional right to travel.
b. The Court found three procedural statutes, requiring
(1) that abortions be performed only in Joint Commission on Accreditation of Hospitals accredited hospitals, (2) that the attending physician's
judgment be confirmed by two other licensed physicians, and
(3) that abortions be approved by the hospital's medical staff abortion committee to be constitutionally defective.
In each instance it found the requirements to be unreasonable and over broad infringe
ments of the patient's stated rights, and/or the physician's right to practice in that
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such procedure did not relate to the particular medical problems of the abortion operation,
c. The Court sustained a lower court's approval of the Georgia statute's language requiring a physician to use his best clinical judgment since its intent was for the benefit, rather than the disadvantage of the pregnant woman.
The Rights at Issue
In both cases the Supreme Court made rulings or enunciated principles which are particularly pertinent to the question of an individual or an institution.refusing to participate in an abortion. These statements are basically propositions about various rights which the Court seeks to assert, guard and/or deny as they interact with each other.
Right of Privacy
The fundamental enabling right cited in Wade is the constitutional right of personal privacy as embodied in the l^th Amendment. The Justices make no special ap
peal to the mother's freedom of conscience. The Court is thus clearly ruling that the abortion decision, at least in the earlier stages, is not a matter of values in conflict
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where one right (or conscience) must he given precedence over another right (that of the fetus, the state, etc.).
The Gourt confirms this view more explicitly in its repeated reference to the abortion decision as a medi
cal question. It regards the choice of whether to bring to term or to terminate a pregnancy as essentially two sides of the same coin. In the Bolton opinion abortion is seen in principle as not unlike any other medical or surgi
cal procedure.
The thrust of this viewpoint is that the mother (and her physician) have specific rights, that there are no contravening rights or interests at certain stages, and, thus, there are, presumably, some persons and institutions with the responsibility for making possible the free
exercise of such rights.
Fetal Rights
The Court declined to participate in the debate about when life (and hence personhood, humanness) begins.?
Instead it shaped its opinions in terms of viability. For legal purposes, prior to viability the fetus is regarded as a non-person; after viability a state might show a legi
timate interest in potential life.
There are three important points involved here.
While the state may indicate an interest in the health of the mother after the first trimester, the status of the fetus prior to viability is completely irrelevant.
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Second, the Court does not mandate restrictive regulations by the state on behalf of the fetus at any stage, it merely permits a limited intervention at the point of viability.
Third, even in the final stages of pregnancy, the state is viewed as having no legitimate interest in the decisions arising from conflicts between maternal health and life and the continued existence of the fetus. (It should be noted that health is broadly interpreted and includes also
the various components of mental health.)
The impact of these rulings can be concretely ex
pressed in the following question.
If a pregnant woman has certain constitutional rights to a procedure which is viewed as a medical need, if the fetus in question is a juridical non-person, and if this matter is of such little import that the state is free to show legislative indifference at all stages of pregnancy, should not a health facility which is equipped to service such rights and needs also be required to do so?
The Right to Refuse
The question, of course, leads directly to the sub
ject of this study. That is, whether physicians, other health professions and/or equipped health facilities should be required to perform an abortion, or to participate in such a procedure by reason of statutory or case law.
In the Bolton decision the Court provides a general guideline to its own intent in this matter. In that case
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it specifically cites with approval the language of the
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Georgia statute0 , which reads:
Nothing in this section shall require a hospital to admit any patient under the provisions hereof for the purpose of per
forming an abortion, nor shall any hospital be required to appoint a committee... a physician, or any other person who is a member of, or associated with, the staff
of the hospital, or any employee of a hospital in which an abortion has been authorized, who shall state, in writing, an objection to such an abortion on moral or religious grounds, shall not be re
quired to participate in the medical procedures which result in the abortion, and the refusal of any such persons to participate therein shall not form the basis of any claim for damages on account of such refusal, or for any disciplinary or recriminatory action against such person.
However, even given the liberality of the Justices approval of a "conscience clause", it still remains that the right to refuse to perform an abortion is far less clearly amplified than the right to have one. The license to decline participation in such procedures is almost an aside in a document which is substantially devoted to the power of the state itself to regulate or prohibit the per
formance of abortions.
Publicly-owned hospitals are a case in point. The Wade and Bolton decisions restricted the state from inter
fering in the right to privacy of a pregnant woman. Sub
sequently a number of suits have been filed against govern mental hospitals to require them to provide this service.
The lower courts have been virtually unanimous in ruling that governmental hospitals may not set roadblocks in a
woman's exercise of this right by limiting the use of pub
licly-owned health care facilities. In 197^* "the Supreme Court confirmed that such thinking was in conformity with its previous equation. It denied a writ of certiorari in a case where a lower federal court had ordered a municipal hospital to open its facilities for voluntary, induced abortions.^
The Supreme Court rulings of 1973 and 197^ could also have some impact upon health professionals who might
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refuse to participate, or directly cooperate, in an abortion procedure by reason of religious beliefs. However, there has been no significant challenge on these grounds to this point. Further, given American law's propensity to enhance personal and individual freedoms, it seems unlikely that a court would compel a physician, or nurse, to participate in an abortion against their beliefs.
The principal unresolved question is the impact of the Judiciary's thinking upon the voluntary, non-profit denominational hospital. (For our purposes in this matter, proprietary hospitals may be regarded as private businesses offering only restricted and selective services, without any intent of all-embrasive public service.)
For some voluntary hospitals the Court's decisions are a legal relief. They enable an institution to offer, without legal consequence, whatever it is philosophically and medically prepared to do. However, those voluntary hospitals whose principles forbid the performance of such
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procedures face a dilemma which has yet to be resolved.
There are several issues concerning the legal status of these institutions and the contravening rights of pa
tients which are being raised and/or tested in the courts.
The details of these challenges follow. They are often being settled on a case-by-case basis until a construct of law, or a further decision by the Supreme Court determines the conditions and the priorities that govern institutional exercise of the conscience clause.
5. Roe vs. Wade, 93 Sup. Ct. 705 (1973) 6. Doe vs. Bolton, 93 Sup. Ct. 739 (1973) 7- - Cf Quotation, p. 5
8. Georgia Statute, #26-1202(e)
9- Nyberg vs. City of Virginia, 9^ Sup. Ct. 192 (197^)
CHAPTER III