Health Care Law and Legislation, Statistics Policies

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Procreation and Ethical Dilemmas

Chapter 15

LEARNING OBJECTIVES

Discuss the 1973 Supreme Court ruling in Roe v. Wade and the continuing controversy over abortion.

Describe the flow of abortion cases beginning with Roe v. Wade, concentrating on counseling, spousal consent, parental consent, and funding.

Explain the legal issues of sterilization artificial insemination, and surrogacy.

Describe the legal and moral issues of wrongful birth, wrongful life, and wrongful conception.

Abortion

Premature termination of pregnancy.

It can be classified as spontaneous or induced.

It may occur as an incidental result of a medical procedure or it may be an elective decision on the part of the patient.

U.S. Supreme Court Decisions

Right to Abortion Roe v. Wade – 1973

First Trimester

abortion decision between woman & physician.

Second Trimester

state may reasonably regulate abortion procedure.

Third Trimester

state may prohibit all abortions except those deemed necessary to protect maternal life or health.

Abortion Committee Requirement Doe v. Bolton – 1973

To Restrictive

Requirements struck down

residency

performance of abortion by Joint Commission approved hospital

approval of abortion by a medical staff committee

consultations

Abortion Funding

Not Required for Elective Abortions

In Beal v. Doe, 1977

Court ruled that it is not inconsistent with the Medicaid portion of the Social Security Act to refuse to fund unnecessary medical services.

Maher v. Roe

Supreme Court voted 6 to 3 states may refuse to spend public funds to provide non-therapeutic abortions.

Not Required for Therapeutic Abortions

Funding Bans Unconstitutional in California

If the state cannot directly prohibit a woman's right to obtain an abortion, may the state by discriminatory financing indirectly nullify that constitutional right?

Can the state tell an indigent person that the state will provide him with welfare benefits only upon the condition that he join a designated political party or subscribe to a particular newspaper that is favored by the government?

Funding Bans Unconstitutional in California

Can the state tell a poor woman that it will pay for her needed medical care but only if she gives up her constitutional right to choose whether or not to have a child?

Discrimination in Funding Prohibited Simat Corp. v. Arizona Health Care Cost Containment Sys.

The Arizona Supreme Court in Simat Corp. v. Arizona Health Care Cost Containment Sys., found that the state's constitution does not permit the state & the Arizona Health Care Cost Containment System to refuse to fund medically necessary abortion procedures for pregnant women suffering from serious illness while, at the same time, funding such procedures for victims of rape or incest or when the abortion was necessary to save the woman's life.

States May Protect Viable Fetus Colauti v. Franklin 1979

The Supreme Court in Colautti v. Franklin voted 6 to 3 that states may seek to protect a fetus that a physician has determined could survive outside the womb. Determination of whether a particular fetus is viable must be a matter for judgment of the physician.

Consent – I

Missouri: Parental Consent Statute Ruled Unconstitutional

Massachusetts: Parental Consent Statute Ruled Unconstitutional

Utah: Notifying Parent for Immature Minor Constitutional

Consent Not Required for Emancipated Minor

Consent – II

Parental Notification Not Required

Minor’s Decision to Abort Found Sufficient

Abortion Case Returned to Lower Court

Minor’s Decision to Abort Not Sufficient

State Interest Not Compelling

Consent – III

Spousal Consent Requirement Unconstitutional

Father of Unborn Fetus Could Not Stop Abortion

Spousal Consent Undue Burden

Parental Consent Bellotti v. Baird – 1979

Parental consent requirement struck down.

MA statute too restrictive.

statute as written & construed, no minor, no matter how mature & capable of informed decision making, could receive an abortion without the consent of either both parents or a superior court judge, making minor's abortion subject in every instance to an absolute third-party veto.

Parental Notification Not Req’d Planned Parenthood v. Owens – 2000

Colorado Parental Notification Act, Colo. Rev. Stat. § § 12-37.5-101, et seq. (1998), which required physician to notify parents of a minor prior to performing an abortion upon her, violates minor's rights protected by the U.S. Constitution.

The act generally prohibited physicians from performing abortions on an unemancipated minor until at least 48 hours after written notice has been delivered to minor's parent, guardian, or foster parent.

Immature Minors H.L. Matheson 1981

Statute requiring physician to notify parents of minor, when possible, upheld.

Parental notice does not violate constitutional rights of immature, dependent minor.

State may not, however, legislate a blanket un-reviewable power of parents to veto their daughter’s abortion.

Emancipated Minors In re Anonymous – 1987

Consent Not Required for Emancipated Minor.

Spousal Consent Not Required Doe v. Zimmerman – 1975

Provisions Pennsylvania Abortion Control Act requiring written consent of the husband unconstitutional.

Provisions impermissibly permitted husband to withhold his consent either because of his interest in potential life of the fetus or for capricious reasons.

Although father's interest in the fetus was legitimate, it did not outweigh the mother's constitutionally protected right to an abortion.

Abortion Rights Reaffirmed Planned Parenthood v. Casey – 1992

Restricting Right to Abortion Affirmed

right of women to have an abortion.

State’s power to restrict abortions after fetal viability.

principle that state has legitimate interests in protecting woman & life of fetus.

Abortion Rights Reaffirmed Casey, con’t - 1992

Undue burden to require spousal notification

Not undue burden to require:

informed consent of nature of abortion procedure & risks involved.

informed consent be provided before abortion

information be provided on the fetus & alternatives to abortion

parental consent be given a minor seeking abortion, providing for judicial bypass option

24-hour waiting period before any abortion can be performed.

Abortion Counseling City of Akron v. Akron Center – 1983

Physician Counseling of Patient Upheld

States cannot mandate what information physicians provide abortion patients.

Hospital deliveries

States cannot mandate that abortions for women over 3 months pregnant be performed in hospital.

Prohibition Abortion Counseling Rust Sullivan – 1991

Regulations prohibiting abortion counseling & referral by family planning clinics that receive funds under Title X were held to be constitutional.

24-Hour Waiting Period Not Burdensome

State may place some restrictions on previability abortions.

Restrictions must not impose an “undue burden” on woman.

Incompetent Persons

An abortion was found to have been proper by a family court in In re Doe

for retarded woman

court properly chose welfare agencies as guardian

mother apparently had little contact with her daughter

Viability Test Required Webster v. Reproductive – 1989

Statute upheld providing that no public facilities or employees should be used to perform abortions.

Physicians should conduct viability tests before performing abortion.

Partial Birth Abortion – I

D&E Ban Constitutionally Vague

Women’s Medical Professional Corp. v. Voinovich

Partial-Birth Abortion Ban Act Unconstitutional

Little Rock Family Planning Services v. Jegley

Partial-Birth Abortion Statute Vague

Planned Parenthood of Cent. N.J. v. Farmer

Partial Birth Abortion II

Partial-Birth Abortion: Ban Unconstitutional

2002 Stenberg v. Carhart

ban lacked an exception to protect the health of the mother

2003: President Bush signs federal restrictions banning late term abortions.

Partial Birth Abortion – III

2005 Partial-Birth Abortion Act

2005: Bush administration asked the Supreme Court to review an appellate court's decision holding the Partial Birth Abortion Act of 2003 unconstitutional.

2006: U.S. Supreme Court Justices heard oral arguments on November 8 in what may be two of the most significant abortion rights cases in decades. The dispute involves Congress’s ban on partial birth abortion.

Partial Birth Abortion – IV

Partial-Birth Abortion Act: First Federal Restrictions

2006 National Abortion Federation v. Gonzages

ban lacked an exception to preserve health of mother

Continuing Controversy

Physician Concern

Antiabortion Demonstrations

Obstructing Access to Abortion Clinics

Abortion & Conflicting Beliefs

Two or more ethical principles in conflict with one another considered “ethical dilemmas.

Morality of Abortion

not a legal or constitutional issue

matter of philosophy, ethics, & theology

subject where reasonable people can, and do, adhere to vastly divergent convictions and principles

Obligation to define liberty of all

not to dictate our own moral code.

Sterilization

Termination of the ability to produce offspring

Elective Sterilization

Regulation of Sterilization for Convenience

Therapeutic Sterilization

Involuntary/Eugenic Sterilization

Artificial Insemination

Injection of seminal fluid into a woman to induce pregnancy, takes place outside of the woman’s

Homologous artiﬁcial insemination

Heterologous artiﬁcial insemination

Consent Required

Confidentiality must be maintained

Surrogacy

Method of reproduction whereby a woman agrees to give birth to a child she will not raise but hand over to a contracted party

Surrogate may be the child’s

genetic mother

gestational carrier

Wrongful Birth, Life & Conception

Wrongful Birth

Wrongful Life

Wrongful Conception

Prevention of Lawsuits

REVIEW QUESTIONS – I

1. Discuss the legal and ethical issues involved in Roe v. Wade.

2. Do you agree that individual states should be able to place reasonable restrictions or waiting periods? Discuss your answer.

3. Should a married woman be allowed to abort without her husband's consent?

4. Discuss arguments for & against partial-birth abortions.

REVIEW QUESTIONS – II

5. Explain why you think Roe v. Wade is an example of legislating morality.

6. Do you agree that eugenic sterilization should be allowed? Why or why not?

7. Describe the distinctions among wrongful birth, wrongful life, and wrongful conception.