Constitutional law--New Jersey abortion statute unconstitutionally vague on its face

The old New Jersey abortion statute held that abortion before the quickening of the child was not indictable. The Young Women's Christian Association (YWCA) of Princeton, New Jersey, is a consolidation of 2 suits in the District Court questioning the constitutionality of the New Jersey statute. The court ruled that the women plaintiffs were without standing to raise the question of constitutionality. The court also ruled that because of the prosecutions for committing illegal abortions, the abortions, the physicians had a sufficient legal interest to argue that the statute deprives the physician of the right to practice medicine according to the highest standards of medical practice and violates the right to privacy of the patients.     

Abortion on demand in a post-Wade context: must the state pay the bills?

The legal issues involved with the application of the United States Supreme Court decisions in Roe v. Wade and Doe v. Bolton (1973) are reveiwed, particularly the question of whether an indigent pregnant woman now has the right to abortion on demand at public expense. The 2 decisions, based on the Fourteenth Amendment, established that a woman, in consultation with her physician, must be free to choose to terminate her pregnancy, at least in the first trimester. State laws are permitted only to regulate abortion procedures in the second trimester and may only regulate or proscribe abortion itself after the fetus becomes viable. The Court did not rule that indigents had a corollary right to the implementation of abortion, and thus free abortions do not appear to be constitutionally required. However, depending on the type of Medicaid coverage in which the individual state is participating, the medically indigent may receive Medicaid benefits for abortions, at least in the first trimester. Since Medicaid is voluntary for the state, it could drop out of the program entirely or the Congress could specifically exclude abortions from Medicaid coverage. Both actions appear unlikely, however, and abortions for medical reasons clearly seem to fall under Medicaid's purpose. Consequently, despite the Wade and Bolton decisions, the right to abortion is limited by the ability of indigents to pay for it. In the light of the serious complications of illegal abortion, it is concluded that legislators should insure the availability of legal abortions. Such a move would not in itself encourage abortions but would properly extend the right to abortion to all citizens.     

Bracket creep in Australian abortion indications: when did rubella arrive?

This article highlights a common misconception about abortion law that is apparent from reading Harriton v Stephens (2006) 226 CLR 52; namely, that fetal abnormality forms a prima facie case for lawful abortion across Australia. This fallacy stems from the legacy of British law drafted in the aftermath of the thalidomide crisis of the early 1960s, and continues to shape beliefs about Australian abortion law in society and within the judiciary. The article notes the fundamental contradictions between British-style law that provides for abortion on the ground of fetal abnormality and New South Wales case law that provides for lawful abortion in regard to the health and wellbeing of the woman. The author concludes that it is misguided and erroneous to configure abortion law in terms of the fetus inconsistent with the tradition of abortion law, and New South Wales authority.     

Legal abortion: the impending obsolescence of the trimester framework

Women who wish to terminate a pregnancy, and physicians willing to perform abortions, are subject to increasing harassment from groups which challenge the constitutional abortion right upheld by the Supreme Court in Roe v. Wade. Their vulnerability, in fact, parallels the vulnerability of the abortion right. This Article analyzes the inherent weakness and impending obsolescence of the trimester framework established in Roe. Present medical evidence of maternal health risks and fetal viability demonstrates that the trimester framework is inconsistent with current medical knowledge, and will likely be rendered obsolete by developments in medical technology. The Article suggests that adoption of an alternative constitutional basis for legal abortion is necessary to preserve the abortion right, and explores the utility of two arguments grounded in the equal protection doctrine. Finally, it discusses means of preserving legal abortion within the confines of the trimester framework established in Roe v. Wade.     

域外医疗损害无过失补偿制度研究

如何实现医疗损害的合理分担和对医疗损害被害人的充分救济,是世界各国普遍面临的难题。新西兰、瑞典、美国和法国等国家都较为重视对医疗损害被害人的补偿,先后建立了契合本国实际的、各具特色的医疗损害无过失补偿制度,并以立法和修法的形式实现制度的确立与变革。     

Wrongful birth in New Zealand

Wrongful birth cases have been a feature of the common law. In this article the author examines wrongful birth cases against the background of the New Zealand accident compensation scheme. Initially cases were accepted under the scheme, but after major changes to the legislation in 1992, wrongful birth cases were declined cover. The author argues that this should continue to be the case, and that, as a result, New Zealand courts will have to make the same policy decisions in this area as those made by other Commonwealth courts.     

The Royal Prerogative in the Realms

From 1840, the laws of New Zealand have comprised the common law and statute law, both of which – but especially the former – were originally based upon the laws of England and continued to draw upon English jurisprudence. Since New Zealand was regarded as a settled colony, the settlers brought with them such of the laws of England as were applicable to the circumstances of the colony. This included the royal prerogative.

Although elements of the royal prerogative are obsolete or have been subsumed in parliamentary enactments, there are a number of aspects that continue to be used by the Crown today. One is the honours prerogative. The changed nature of the Crown (and in particular its division among the realms) has, however, led to some uncertainties. In particular, there have been questions regarding the use of the royal prerogative in respect of armorial bearings, and the proper exercise and application of the Law of Arms. This has never caused serious difficulties in New Zealand – if indeed it can be said to be an issue at all – but the Canadian case of Black v Chrétien has shown that disputes over honours and dignities can arise, and can have serious political or constitutional implications.

This paper considers the introduction of the royal prerogative to the realms, and some of the implications and possible difficulties which this process may have led to.     

Roe v. Wade and the lesson of the pre-Roe case law

The attempt is made in this discussion to demonstrate that the Supreme Court in deciding the Roe v. Wade case should not have decided an abortion case when it did and that the opinion was almost destined to be bad in that the Court could find no persuasive rationale in the pre-Roe cases for each of the points in its decision. In 1973 political forces were actively debating abortion. Abortions had been prohibited by most states, except to save a woman's life, since the 19th century. In the 5 years immediately preceding Roe, 13 states had revised their statutes to resemble the Model Penal Code's provisions, which permitted abortions if the pregnancy threatened the woman's life, if it would gravely impair her physical or mental health, if it resulted from rape or incest, or if the child would be born with grave physical or mental defects. 4 states had removed all restrictions on the permissible reasons for seeking an abortion before a pregnancy passed specified lengths. In short, in many states the political process had yet to decide on abortion, but Roe's rejection of Texas's statute voided almost every other state's statutes as well. Between 1970 and 1972, a flurry of constitutional challenges hit the courts. 3 years was hardly sufficient time for the judicial system to evolve sound analysis for such an emotionally charged issue as abortion. The Court could justifiably have allowed the dispute to simmer longer in the lower courts. There is some indication that a sounder case law might evolved if given time, but that was prevented by Roe. The Court could not find a rationale in 1973, but it decided anyway, suggesting a legislative rather than a judicial process.     

Investigations of complaints and quality of health care

Malpractice law is frequently justified by the claim that it improves health care services but this belief remains untested. Using a multiple case study in 16 remote rural areas in New Zealand, this study examined the effects of formal quasi-judicial investigations on the quality of health care services. The study found that the fragile local health systems were damaged by the quasi-judicial investigations of the medical disciplinary body and became less efficient and less user-friendly. A few doctors left rural practice and were difficult to replace. The remaining health workers responded to the investigations in a negative manner, losing confidence, enthusiasm and motivation for work; they performed in a less efficient manner, working more slowly, setting up barriers to access, ordering more tests and referring more to secondary care. Complainants also appeared to have been disadvantaged as a consequence of having complained.     

COERCIVE AND NONCOERCIVE ABORTION DETERRENCE POLICIES: A Comparative State Analysis

The Supreme Court's decision in Roe v. Wade ( 1973) limited the authority of states to prohibit abortions during the first two trimesters of pregnancy. Although they can no longer prohibit abortions, state legislatures have adopted a variety of coercive and noncoercive policies that might operate to alter the utilities associated with having or providing abortions. This article analyzes the relative impacts of these policies on two measures of abortion behavior: (1) state abortion rates in 1976 and (2) trends in states' abortion rates from 1973 to 1976. Multiple regression analysis reveals that neither coercive nor noncoercive policies are strongly related to these aggregate measures of abortion behavior .     

The new regulation of abortion in Spain

The enactment of Law 2/2010 on Sexual and Reproductive Health and on Voluntary Interruption of Pregnancy represents a radical change in the regulation of abortion in Spain. The law moves from the medical indication model that has been in place since 1985 (which established certain cases in which abortion was legal) towards a time-limit model that, with some exceptions, allows free abortion during the first 14 weeks of pregnancy. Along with the hot debate that this fundamental change has caused, other features of the law have also arisen as a source of conflict, including the regulation of the informed consent of underage women for having an abortion and the rules regarding the conscientious objection by healthcare professionals.     

Constitutional law

Recent decisions of New Zealand courts illustrate that domestic proceedings may not be effective to recognise indigenous property rights, nor to address grievances that stem from breaches of customary indigenous rights. One possibility for Māori to have their rights enforced is to consider using international law. Gains have been made in international law with regard to indigenous rights; one noteworthy decision is Mayagna (sumo) Awas-Tingni Community v The Republic of Nicaragua. In this case, a universal and generic property right was extended consistently with emerging indigenous rights to include an indigenous right to customary land tenure. This paper considers whether the International Covenant on Civil and Political Rights can carry a property right for indigenous peoples in New Zealand.     

The legal status of abortion in the States if Roe v. Wade is overruled

This article explores the legal status of abortion in the States if the Supreme Court overrules Roe v. Wade, 410 U.S. 113 (1973), and Doe v. Bolton, 410 U.S. 179 (1973), as modified by Planned Parenthood v. Casey, 505 U.S. 833 (1992). Although an overruling decision eventually could have a significant effect on the legal status of abortion, the immediate impact of such a decision would be far more modest than most commentators on both sides of the issue believe. More than two-thirds of the States have expressly repealed their pre-Roe laws or have amended those laws to conform to the trimester scheme of Roe v. Wade, which allows abortions for any reason before viability and for virtually any reason after viability. Those laws would not be revived by the overruling of Roe. Only a few of those States have enacted post-Roe laws that would prohibit most abortions if Roe were overruled. Slightly less than one-third of the States have not expressly repealed their pre-Roe laws. Many of those laws would notbe effective to prohibit abortion if Roe were overruled either because they allow abortion on demand, for undefined reasons of health or for mental health reasons; because enforcement would be precluded on state constitutional grounds; or because the pre-Roe laws prohibiting abortion have been repealed by implication with the enactment of post-Roe laws regulating abortion. In sum, no more than eleven States, and very possibly as few as eight, would have laws on the books that would prohibit most abortions if Roe were overruled.     

Culling bad apples, blowing whistles and the Health Practitioners Competence Assurance Act 2003 (NZ)

The Health Practitioners Competence Assurance Act 2003 (NZ) became New Zealand law on 18 September 2003. This article looks at the background to the Act and reasons for resistance to it. It discusses the record so far on the medical profession's self-regulation of fitness-to-practise issues and the legal duties of practitioners who have reason to believe a colleague is putting patients at risk. It looks at some of the changes the Act brings, compares the experience of English and American medico-legal reforms, where applicable, and attempts to draw some conclusions on the chances for successful change.     

Recent developments in medical law

The most spectacular aspect is the extremely rapid expansion of medical law. Even if there is a close connection between developments in medicine and in law, the question must be asked as to what extent new discoveries and advances in medicine play a dominant role here, and to what extent the emphasis is on the further development of law. How advances in medicine can give rise to new legal problems was most impressively demonstrated some time ago by the discussion about cerebral death. In view of the progress made in the field of re-animation and intensive care, the current question is whether or not the physician's duties and rights to maintain life should be limited in hopeless cases when patients are incapable of making decisions themselves. This is demonstrated in particular by the discussion about the binding character of "patient testaments" in which healthy subjects declare that they do not want treatment under such circumstances. The decisive factor will continue to be the presumptive will of the patient at the respective time, and this will have to be ascertained considering all circumstances prevailing at that time. New questions with regard to the ethical and legal limitation of the technically feasible also arise from the possibility of culturing embryos from legal abortions or extracorporally fertilized ova to obtain transplants, and from the possibility of implanting extracorporally fertilized ova into the uterus, perhaps that of a "hired childbearing wet-nurse." In addition to ethical and legal problems, questions of parentage would arise here similar to those already of current interest in connection with artificial heterologous insemination. For physicians practicing these methods, questions concerning liability and the limitation of professional secrecy vis-à-vis the semen donor might become the issue of law suits in the near future. Current problems of "unsuccessful sterilization" and nonperformance of an abortion through the physician's fault although abortion was indicated for eugenic reasons are, on the other hand, primarily due to the fact that the law--possibility even for acceptable reasons--establishes legal obligations for the physician which, in the last analysis, aim at preventing human life from coming into being.(ABSTRACT TRUNCATED AT 400 WORDS)     

Assisted reproduction and mental illness: a human rights perspective from New Zealand

Developments in our ability to artificially assist reproduction have led to new and more social applications for medicine. Parallel to this has been an increasing acceptance and understanding of mental illness. Yet it may be argued that mental illness should preclude an ability to parent by means of state-involved artificial reproductive technologies. Through examination of current New Zealand human rights law, it is argued that such practice would be discriminatory. While there is some room to grant an exception to allow such discrimination, it is doubtful that such a decision would ever be made. Any reasons to justify an exception are unlikely to meet the high threshold demanded by current law.     

The legal status of abortion in the states if Roe v. Wade is overruled

This article explores the legal status of abortion in the States if the Supreme Court overrules Roe v. Wade, 410 U.S. 113 (1973), and Doe v. Bolton, 410 U.S. 179 (1973), as modified by Planned Parenthood v. Casey, 505 U.S. 833 (1992). Although an overruling decision eventually could have a significant effect on the legal status of abortion, the immediate impact of such a decision would be far more modest than most commentators-on both sides of the issue-believe. More than two-thirds of the States have repealed their pre-Roe laws or have amended those laws to conform to Roe v. Wade, which allows abortion for any reason before viability and for virtually any reason after viability. Pre-Roe laws that have been expressly repealed would not be revived by the overruling of Roe. Only three States that repealed their pre-Roe laws (or amended them to conform to Roe) have enacted post-Roe laws attempting to prohibit some or most abortions throughout pregnancy. Those laws have been declared unconstitutional by the federal courts and are not now enforceable. Of the less than one-third of the States that have retained their pre-Roe laws, most would be ineffective in prohibiting abortions. This is (1) because the laws, by their express terms or as interpreted, allow abortion on demand, for undefined health reasons or for a broad range of reasons (including mental health), or (2) because of state constitutional limitations. In yet other States, the pre-Roe laws prohibiting abortion may have been repealed by implication, due to the enactment of comprehensive post-Roe laws regulating abortion. In sum, no more than twelve States, and possibly as few as eight, would have enforceable laws on the books that would prohibit most abortions in the event Roe, Doe and Casey are overruled. In the other States (and the District of Columbia) abortion would be legal for most or all reasons throughout pregnancy. Although the long-term impact of reversing Roe could be quite dramatic, the author concludes that the immediate impact of such a decision would be very limited. This article is current through May 1st, 2007.     

A brief overview of quantitative criminology in Australasia: 1981–1995

This paper reviews quantitative criminological research, especially of a sophisticated mathematical nature, published by researchers in Australia and New Zealand since 1981. A statistical analysis of quantitative articles published between 1981 and 1995 in the leading academic journal.The Australian and New Zealand Journal of Criminology, showed that using the five topical categories developed by Farrington (this issue), there has been little change in the types of research carried out, with studies of court processes and correctional issues accounting for two-thirds of papers. The numbers of “simple” and ”sophisticated” quantitative articles as proportions of the total published also did not vary over the 15 years. Areas of strength in quantitative research include drugs, alcohol, and crime; indigenous peoples and the criminal justice system; regulatory law enforcement; the modeling of recidivism; and sentencing. Most sophisticated quantitative research is carried out by noncriminologists, and it appears unlikely that the amount of mathematically sophisticated research will increase significantly in the next few years. Experimental studies and longitudinal designs will probably slowly grow in popularity, and crime prevention will emerge as an area of quantitative strength.     

Abortion Approval as a Ritual of Symbolic Control

The variability of abortion laws and particularly, of the mechanisms employed to implement them attests to the sociocultural specificity of the concrete solutions to the universal problem of reproductive control. The present study examines the implementing mechanisms of the abortion law in Israel, which is a medical committee. Based on interviews with 29 social workers (all women) who serve on the committees, this paper examines how the committees operate. At one and the same time it describes the "control culture" which emerges within the legal procedure; that is, the mechanism's structure, language, accepted discourses and rituals. Foucault's concepts of power/knowledge were found to be most enlightening in this context of regulating abortions. The analysis of the abortion approval procedures portray characteristics of a ritual. A ritual that is analogous to a juvenile court on the one hand, threatening but not really punishing, and on the other hand, a confessional situation in which the woman has to confess her normative wayward behavior such as extra-marital relations, not using contraception, and enjoying sex with no reproductive intentions. The reinforcement of normative attitudes toward women and especially toward motherhood is manifested in the expressions used by the committee members referring to the pregnant woman's future behavior and the expectations from her to abide by them. These two ritualistic facets are central components of symbolic control which the Israeli "reproductive deviant" woman is faced with.     

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.