Health care law and legislation week 4

Chapter 14

Procreation and Ethical Dilemmas

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

Section

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.