Hypothetical Abortion Case

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FACTS: Bonnie Bell was between 4 and 5 months pregnant when she attempted to get an abortion within the state of Florida. She was refused because her fetus was, according to Florida’s definition, viable. Bonnie objected and sued.

ISSUE: Whether states may define when a fetus is viable and prohibit abortions within the respective state based on the state's individual definition. CASES:

DOE V DOE

In a 1990 case, In re A. C., 573 A.2d 1235, the District of Columbia Court of Appeals ruled that a physician must honor the wishes of a competent woman regarding a cesarean section. The court's opinion was written after the woman involved in the case, Angela Carder, and her fetus died following a cesarean section forced by a lower court.

A 1994 Illinois case, Doe v. Doe, 260 Ill. App. 3d 392, 198 Ill. Dec. 267, 632 N.E.2d 326, involved a woman (called Doe to protect her anonymity) who was thirty-five weeks pregnant. Her doctor conducted tests that indicated her fetus was not receiving adequate oxygen. He therefore recommended that the fetus be delivered by cesarean section. Doe objected to the surgical procedure on the basis of her religious beliefs. The doctor and his hospital then contacted the Cook County state's attorney, who petitioned for a court order requiring the woman to undergo the cesarean procedure.

The case eventually reached the Illinois Appellate Court, which upheld Doe's right to refuse the cesarean section. The court held that a physician must recognize a woman's right to refuse a cesarean section. It found no statute or Illinois case to support the state's request to force a cesarean on a competent person. It also dismissed the state's argument that Roe's protections of a viable fetus authorized a forced cesarean.

The Partial-Birth Abortion Decisions 

Stenberg v. Carhart, In 2000, the Supreme Court accepted Stenberg v. Carhart, a case challenging the constitutionality of a Nebraska law prohibiting partial-birth abortion. The term "partial-birth abortion" refers to a procedure known in the medical community as "dilation and extraction" (D&X), which involves terminating a pregnancy by partially extracting a fetus from a uterus, then collapsing its skull and removing its brain. This procedure is usually performed late in the second trimester, between 20 and 24 weeks into a pregnancy. Violation of the Nebraska law was made a felony, and punishment included possible fines and jail time, as well as the automatic revocation of a convicted doctor's state license to practice medicine.

In a 5-4 decision, the high court ruled that the Nebraska law violated the Constitution as interpreted in Casey and Roe. Justice Breyer, delivering the majority opinion, stated that the statute lacked the requisite exception "for the preservation of the ... health of the mother." Citing Casey, Breyer determined that the state may promote but not endanger a woman's health when it regulates the methods of abortion.

In addition, the majority found the wording of the Nebraska ban unclear because it could be interpreted by doctors to include not only the D&X procedure but other abortion methods as well. The majority ruled that this ambiguity imposed an undue burden on a woman's ability to choose an abortion, as well as on those who perform abortions using methods similar to the partial-birth procedure who might face prosecution.

Roe v Wade

In two separate but related decisions, the Supreme Court affirmed the lower courts' conclusions and struck down both statutes by a vote of 7-2. In Roe, the more significant of the two decisions, the court concluded that constitutional rights to privacy and liberty protected a woman's right to terminate her pregnancy. Writing for the majority, Justice Harry Blackmun acknowledged that while "the Constitution does not explicitly mention any right to privacy," a number of prior decisions had found "a guarantee of certain areas or zones of privacy." This guarantee of privacy, Blackmun...
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