Criminal liability of physicians: an encroachment on the abortion right?

The Supreme Court in 1973 in Roe v. Wade established that decision of first trimester abortion is left to the physician, exercising his best medical judgment, in consultation with the patient. During this period the state may not regulate abortion determination since there is no compelling state interest; therefore a physician performing abortion will be precluded from civil or criminal liability. In second trimester abortion the state has a compelling interest in the health of the mother and may regulate the procedure to protect maternal health; although a previable fetus may be able to survive the abortion, Roe v. Danforth definitively places the woman's right to an abortion above the life of the fetus during the previable stage; therefore the state cannot seek to safeguard the life or health of the fetus during the abortion. Third trimester abortion implies a viable fetus; thus, a compelling state interest in the potential life arises and the state may regulate and proscribe abortion except when necessary for the life and health of the mother. The determination of when viability has been achieved is a matter of judgment resting with the physician who has the choice of techniques and operating procedures which may or may not be fatal to the unborn. It is a question of either termination of pregnancy or destruction of the fetus. In this last case the legal responsibility placed upon the physician is very serious, and involving a risk of civil and criminal liability. Uncertainties as to the boundaries of legal abortion and the threat of criminal liability can only result in a reluctance among physicians to perform second and third trimester abortions, which is against the fundamental right to abortion guaranteed by the Constitution. The Supreme Court will have to elaborate upon the scope of the abortion right, whether it encompasses fetal destruction or only termination of pregnancy, because it directly affects the extent and quality of maternal and fetal care that must be rendered by a physician. If only termination of pregnancy is included the Court must resolve whether the woman's health interests predominate, or whether the physician can be required to enhance fetal survival. Physicians have a right to know the full extent of legal ramifications and implications of legally induced abortion.     

Brief for bioethicists for privacy as amicus curiae supporting appellees

Amicus, an ad hoc group of philosophers, theologians, attorneys, and physicians, believe that adults should consult their doctor when making personal decisions. The doctor-patient relationship would be protected under the Constitution. In "Griswold v. Connecticut," the Supreme Court said that a state law which forbid married couples from using contraceptives was unconstitutional; that the couples should have a right to privacy. In "Roe," the Supreme Court recognized that a patient and her doctor should have privacy. In "Doe v. Bolton," the Supreme Court found that the State of Georgia was violating the patients' and physician's freedom. In "Planned Parenthood of Missouri v. Danforth," the Supreme Court said that a general informed consent provision was alright because it did not take away the abortion decision. The post- Roe state laws were ways to control doctors and patients so that a particular philosophical view could be imposed. The major question in Webster is whether personal decisions should be made by doctors and patients or the state. Both parties must agree to the decision. Section 188.205 of the Missouri law was before the Court in Webster. This section makes it illegal for public funds to be used to encourage a woman to have an abortion that wasn't necessary to save her life. There are medical conditions for which abortion is reasonable - Tay-Sachs disease, for instance. The child usually dies by 3 years of age. Without genetic screening, many at-risk couples would abort all pregnancies. 95% of all prenatal screenings are negative. State medical treatment decisions are arbitrary and impersonal. Having control over important personal decisions is necessary for freedom.     

Brief for 885 law professors in support of maintaining adherence to the Roe decision

This brief opposes the overturn of "Roe v. Wade" and resists weakening "Roe's central holding" that would allow states to overturn legal abortion. The brief was written for 885 law professors. "Roe" was not a "constitutional aberration," or "an exercise of raw, judicial power." Some members of the Supreme Court seem to think that the state has "an overriding interest" in protecting fetal life. Some Court members have questioned "Roe's" trimester framework. A person's decision to abort should be done privately. If women are not free to choose abortion, they will not have equality. There is an absence of "express rights of privacy and procreational freedom" in the Constitution. "Roe" was 1 instance of the Court's recognition of constitutional rights that are not named explicitly. Historical materials are drawn on to show the link between trends in society and the "judicial recognition of unenumerated rights." The most serious questions about "Roe" deal with its trimester framework. Justice Blackmun's majority opinion said that the 1st trimester of pregnancy was personal. "Roe" said that abortions created a medical risk at the beginning of the 2nd trimester. Therefore, the government was more interested in the health of the mother at that time. The state could then regulate abortion "in ways that are reasonable related to maternal health." The start of the 3rd trimester was when the fetus was viable. The right of a woman to end her pregnancy "offends powerful moral forces." Some of "Roe's" critics had their scientific facts wrong. Medical authorities think Justice O'Connor is mistaken when she says that "Roe" is "on a collision course with itself." The 23rd to 24th week of pregnancies where the fetal organs can "sustain life outside the womb." This has not changed since "Roe" was decided in 1973, nor is it likely to in the future. Some "amici" believe that the state can never have an interest in the fetus. The state can not have an interest in the fetus distinct from the woman who will give birth to it. During previability, restricting a woman's procreational rights would not be scientifically supportable. The state does have an interest in "upholding the value of human life." "Roe" is "within the mainstream" of constitutional jurisprudence and should be reaffirmed.     

Mitigation Evidence and the Ethical Role of a Defense Attorney in a Capital Case

In 1972, the U.S. Supreme Court decided Furman v. Georgia. This landmark case changed the death penalty in the United States. In Gregg v. Georgia (1976), the Supreme Court made it clear that mitigating factors were to be heard before sentencing to ensure individualized sentencing. Every defendant has a story, a family, a childhood, trauma, and celebration—a reason their life should be spared from execution. In a capital case, a defense attorney’s ethical role is to craft that story and articulate it in a way that enables the jury to have a complete picture of the defendant’s background and character as they decide his punishment. Mitigating factors are not an excuse for the defendant’s behavior, but rather an insight into who the defendant is and what has shaped his life. A defense attorney’s ethical duty in a capital case is to argue the case on all legal points and to present a thorough investigation of mitigating evidence. A thorough investigation of all such evidence is required by case law and explained by the standards set forth by the ABA guidelines.     

PROTESTANT FUNDAMENTALISM AND THE RETRIBUTIVE DOCTRINE OF PUNISHMENT*

In Gregg v. Georgia in 1976, the U.S. Supreme Court declared that public opinion, including the public's presumed desire for retribution, can be a legitimate basis for penal policy. Subsequently, the retributive doctrine has guided sentencing reform across the nation. But variation among the public in support for retribution as the goal of punishment and the effects of religion in shaping public sentiments about punishment have received little attention from researchers. Drawing from recent work on attribution theory and religion, this paper proposes and reports evidence that public support for the retributive doctrine is closely linked to affiliation with fundamentalist Protestant denominations and fundamentalist religious beliefs. The normative implications of such a connection are addressed.     

Attorney General v. X

In this case in which a 14-year-old girl said she had become pregnant after being raped by her friend's father, the Attorney General of Ireland had enjoined the girl and her parents from traveling to England for an abortion. A psychologist had testified that in her present state of mind, the girl was suicidal. The Supreme Court of Ireland held that the right to life supersedes all other rights, including the right to travel. However, if there is a real and substantial risk to the life of the mother which can only be avoided by termination of the pregnancy, then an abortion is permissible. The Court determined that the girl's risk of suicide satisfied this condition, and therefore the girl was allowed to terminate her pregnancy.     

Sanchez v. Fairview Developmental Center: findings of fact and conclusions of law denying preliminary injunction. (No. CV 88-0129 FFF (Tx), 30 Mar 1988)

Jesus Sanchez is a profoundly retarded patient in a semicomatose state in California's Fairview Developmental Center. His parents requested that the Center remove his gastrostomy tube. Fairview refused the request because it contradicted state hospital policies. Claiming that the refusal violated Jesus's right of privacy, his parents sought to have a federal court interpret the Constitution in a manner requiring California to allow for unilateral termination of their son's life. The parents moved for a preliminary injunction compelling Fairview to honor their request. The Court refused to find that the Constitution provided a mandate to terminate life-sustaining treatment. The Court said that Jesus could be moved from Fairview to a private facility that would carry out the request, but declined to issue the injunction because the parents failed to demonstrate a fair chance of success on the merits or that irreparable harm would accrue if the injunction were not ordered.     

Complex brain malformation as a rare cause of neonatal death

A dead female neonate was brought to a children's hospital by the mother. The MRI scan suggested a malformation of the brain. Because of the other circumstances of the case (the mother left the hospital unauthorizedly), a forensic autopsy was ordered, in the course of which the brain was removed while the head was totally immersed in water. This method, which was introduced by Prahlow et al., helps to obtain intact brain specimens without interfering with the necessary medicolegal preparations to determine whether the child was born alive. Neuropathological examinations classified the cerebral malformation as (lethal) lissencephaly. Further investigations showed that the mother had lived in Germany without a residence permit.     

A STR mutation in a heteropaternal twin case.

A heteropaternal male twin case with two men being alleged fathers was investigated as requested by the Court. Up to 37 PCR-based polymorphic DNA systems were studied in this case which was complicated by a paternal ACTBP2 mutation detected in one twin. This is the first report on a STR mutation in a double paternity case where both biological fathers were indisputably identified. The STR systems enable the resolution of these complex genetic relationships even in a case where a mutation in one STR locus was encountered.     

"Pro-life" absolutes, feminist challenges: the fundamentalist narrative of Irish abortion law 1986-1992

This article asks how Irish abortion law developed to the point of stopping a young pregnant rape victim from travelling abroad to have an abortion in 1992 (Attorney General v.X). The author argues that this case, which ultimately saw the Irish Supreme Court overturn that decision and recognize the young woman's right to abortion, was the last chapter of the fundamentalist narrative of Irish abortion law. The feminist critique of that law needs to consider its particular fundamentalist aspects in order to clarify the obstacles posed to the struggle for Irish women's reproductive freedom. The author argues that a fundamentalist narrative ordered the post-colonial and patriarchal conditions of Irish society so as to call for the legal recognition of an absolute right to life of the "unborn." The Supreme Court's interpretation of the constitutional right to life of the fetus in three cases during the 1980s is evidence that Irish abortion law was constructed through a fundamentalist narrative until that narrative was rejected in the Supreme Court decision in Attorney General v. X.     

Babies Can't Wait: A Judicial Response

During my career as a Family Court Judge over the past 12 years, I was faced daily with the difficult task of deciding whether or not to remove a newborn infant from the care of her mother and place the child in foster care upon discharge from the hospital. In the huge majority of cases, removal was ordered based upon the mother's history of substance abuse and the subsequent positive toxicology of the infant at birth. I could not risk the health and safety of this often premature and vulnerable infant to a mother with such an addiction to drugs that she would expose her child in utero to these toxic substances. Such a mother was incapable of caring for the basic needs of this vulnerable infant, and therefore removal was ordered. This decision saddened me because, as a mother myself, I knew of the critical bond existing between infant and mother during those critical first days and weeks of a child's life. That bond must be nurtured and strengthened and is crucial to a child's development.     

Judicial Review of Politics: The Israeli Case

In the tradition of studies questioning the impact of celebrated court rulings, this article discusses the effectiveness of the judicial review of politics conducted by the Israeli Supreme Court. The Israeli Supreme Court is generally viewed as a highly influential, almost omnipotent body. During the last two decades, the Court has intervened repeatedly in the so–called political domain, thereby progressively eroding the scope of realms considered non–justiciable. It has ventured to enter domains of 'pure' political power to review the legality of political agreements, political appointments (appointments of political allies to public positions), and political allocations (government funding to organizations affiliated with its political supporters). The prevalent perception is that these developments had a significant impact on Israeli political life. The present article challenges this view and argues that, on closer scrutiny, the influence of the Court on many of the issues reviewed here is negligible. First, many of the doctrines developed by the Court in order to review political measures proved ineffective. Usually, when the Supreme Court (acting as a High Court of Justice) engages in judicial review, it lacks the evidence needed in order to decide that administrative decisions on public appointments or public funding should be abolished because they were based on political or self–serving considerations. Second, the norms mandated by the Court hardly influence politicians' decisions in everyday life, and are applied only in contested cases. The reasons for this situation are not only legal but also socio–political. Large sections of current Israeli society support interest–group politics and do not accept the values that inspire the Court.     

Carbofuran poisoning of pregnant woman and fetus per ingestion

A case of carbamate pesticide poisoning of a pregnant woman by carbofuran ingestion is presented. The mother recovered from the poisoning in the hospital but necrosis of the fetus was found. Toxicological findings of the liver, brain, and kidney of the fetus revealed carbofuran in concentrations comparable with the mother's blood. Our findings in the case contribute to the research on permeation of the placental barrier by chemical substances.     

Bouvia v. County of Riverside

The plaintiff, a quadriplegic with cerebral palsy, had admitted herself voluntarily to the psychiatric department of Riverside General Hospital in September 1983. She then revealed her intention of starving herself to death, requested that hospital personnel administer only pain medication and hygienic care, and sought preliminary and permanent injunctions to prevent the hospital from either force feeding, transferring, or discharging her. The essence of her legal claim was that society was obliged to honor, and to assist her in carrying out, her privacy right to end her life. While the Superior Court recognized a patient's right to refuse life-sustaining care under some circumstances, it ruled that because Bouvia's condition was not terminal, her rights must yield to the interests of the state and other third parties in preserving life.     

The choice of child delivery is a European human right

In a judgment of 14 December 2010, in the case of Madam Ternovszky v. Hungary, the European Court of Human Rights has considered that a State should provide an adequate regulatory scheme concerning the right to choose in matters of child delivery (at home or in a hospital). In the context of homebirth, regarded as a matter of personal choice of the mother, this implies that the mother is entitled to a legal and institutional environment that enables her choice. This contribution stresses in which sense the regulatory schemes in the Member States Belgium, Germany, the Netherlands, France and the UK concerning the choice of child delivery are in accordance with Article 8 ECHR, the right to respect for the private life. Do the Member States provide the legal certainty to a mother that the midwife can legally assist a homebirth? Or are restrictions made in interests of public health?     

The High Court's lost chance in medical negligence: Tabet v Gett (2010) 240 CLR 537

In 2010 the High Court of Australia in Tabet v Gett (2010) 240 CLR 537 determined an appeal in a medical negligence case concerning a six-year-old girl who had presented to a major paediatric hospital with symptoms over several weeks of headaches and vomiting after a recent history of chicken pox. The differential diagnosis was varicella, meningitis or encephalitis and two days later, after she deteriorated neurologically, she received a lumbar puncture. Three days later she suffered a seizure and irreversible brain damage. A CT scan performed at that point showed a brain tumour. As Australia does not have a no-fault system providing compensation to cover the long-term care required for such a condition, the girl (through her parents and lawyers) sued her treating physician. She alleged that, because a cerebral CT scan was not performed when clinically indicated after the diagnosis of meningitis or encephalitis and before the lumbar puncture, she had "lost the chance" to have her brain tumour treated before she sustained permanent brain damage. She succeeded at first instance, but lost on appeal. The High Court also rejected her claim, holding unanimously that there were no policy reasons to allow recovery of damages based on possible (less than 50%) "loss of a chance" of a better medical outcome. The court held that the law of torts in Australia required "all or nothing" proof that physical injury was caused or contributed to by a negligent party. The High Court, however, did not exclude loss of chance as forming the substance of a probable (greater than 50%) claim in medical negligence in some future case. In the meantime, patients injured in Australia as a result of possible medical negligence (particularly in the intractable difficult instances of late diagnosis) must face the injustice of the significant day-to-day care needs of victims being carried by family members and the taxpayer-funded public hospital system. The High Court in Tabet v Gett again provides evidence that, as currently constituted, it remains deaf to the injustice caused by State legislation excessively restricting the access to reasonable compensation by victims of medical negligence.     

Polluting Environment, Polluting Constitution: Is a 'Polluted' Constitution Worse than a Polluted Environment?

The Indian Supreme Court has been praised as one of the mostsocially active courts in the world, especially so in the environmentalfield. Yet it is arguable that many of the benefits claimedfor judicial involvement are far from real. Three phases ofacti­vism are identified. In the 1970s, the Court developedthe concept of environmental rights based on ensuring that thedirective principles of state policy and the funda­mentalright to life contained the Constitution worked in mutual support.This was followed by a period when the Court extended liabilityprinciples. The most recent and most controversial phase hasinvolved the Court increasingly acting in an exec­utivefunction and effectively both making and implementing policies.The Court’s enthusiasm in environmental matters has nowdented India’s institutional balance. By being preparedto judicialise all problems of life into problems of law, theCourt has undermined the strength of citizens to engage collectivelywith institutions of the State—the Court should now withdrawfrom its self-imposed alchemist role.     

The Reasonable Expectation of Privacy and the Criminal Suspect

In In re JR38, the Supreme Court unanimously dismissed an appeal from a 14 year‐old boy who argued that the dissemination of his image, taken whilst he was participating in sectarian rioting, to local newspapers, violated his rights under Article 8 of the European Convention on Human Rights (ECHR). However, the Court was divided on whether or not the measures taken by the police engaged the applicant's Article 8(1) rights at all. This case raises fundamental questions as to the scope of private life in the context of criminal investigations, and the place of the European Court of Human Rights’ ‘reasonable expectation of privacy’ test in determining whether Article 8(1) of the ECHR is engaged. This case comment subjects the majority's interpretation of Article 8(1) to critical scrutiny, concluding that this interpretation may unduly restrict the scope of Article 8 protection for those subject to criminal investigations.     

Webster and the fundamental right to make medical decisions

Members of the American Medical Association, the American Academy of Child and Adolescent Psychiatry, American Academy of Pediatrics, American College of Obstetricians and Gynecologists, American Fertility Society, American Medical Women's Association, American Psychiatric Association, and the American Society of Human Genetics have submitted an "amici curiae" brief in support of the appellees of "Webster." The brief did not endorse or oppose the view that the state's interest in fetal health is compelling as fetal viability. Instead, the brief said that: 1) everybody has the right to make medical decisions without the state interfering "up to the point where the state's compelling interest arises;" and 2) even after a compelling interest comes up, state rules must go along with good medical practices. Because some provisions of the Missouri law were not consistent with good medical practice, these provisions were not constitutional. The fetal viability testing requirement would increase risks to the woman and fetus without providing substantial information on viability. The counseling ban would prevent doctors from giving necessary information to pregnant women so that they could make informed decisions. The 1st section of the brief discussed "the medical background of pregnancy and abortion." The earliest age at which a fetus can survive has remained unchanged since "Roe." The medical complications and adverse health effects are fewer from than from childbirth. Abortions have become safer. The brief said that the "right of privacy" is broad enough so that a woman could decide whether or not to end her pregnancy. In "Roe," the Court found that if a woman was going to make a choice about pregnancy, this was the same as other private decisions which are protected in the Constitution. Individual medical decision making is "deeply rooted" in US "history and tradition." Accepted principles are reflected in the fact that the patient has a right to make these decisions based on the "liberty component of the Due Process Clause." Section 188.029 of the Missouri Law would make a doctor do certain tests for fetal viability. They would have no medical value, in most cases, and put a risk on the health of the mother. It was not related to any goal of the state, and was, therefore, unconstitutional. Section 188-205 of Missouri law - which says a doctor can't consult unless the mother's life is endangered was also unconstitutional.     

DO LOWER COURTS ANTICIPATE CHANGES IN SUPREME COURT POLICIES?: A Few Empirical Notes

This paper takes advantage of the change from the Warren Supreme Court to the Burger Supreme Court to investigate a phenomenon not usually examined in judicial impact research—anticipatory reactions. The research question is whether and under what circumstances federal courts of appeals anticipate changes in policy by the Supreme Court. Changes in the citation of Warren Court civil liberties decisions from the Warren Court era to the early Burger Court era are used to evaluate this question. It is hypothesized that moves away from Warren Court decisions would be greatest for decisions which received minimal support on the Warren Court and for important or salient policies. Contrary to these expectations it was found that during the Burger Court era the number of citations of Warren Court decisions actually increased, the percentage of positive citations increased, and the increases were greatest for decisions receiving minimal voting support on the Warren Court and for decisions classified as important.