November 01, 2005

Roe: Medically anachronistic

In the post immediately below, you can read my analysis of how Griswold was, in my opinion, good decision, bad adjudication, and what I think would have been better adjudication.

Here, I’m offering my thoughts on Roe vs. Wade itself.

I’m not talking about the legal angle; that should obviously follow from my Griswold post.

Instead, I’m looking at the medical side, how the trimester framework is medically outdated, and part of what, ironically, continues to have any reasonable degree of abortion rights continue to face the chopping block.

First, we need a bimester-based rather than a trimester-based framework. Viability probability is high enough at 20 weeks or so for compelling interest arguments, etc., to come to the fore. At the same time, short of some “Brave New World” artificial womb, viability is not likely to get moved further back for decades. So a bimester system gives us breathing room.

Now, how would I like to see the details of a bimester-based system play out, if I were indeed a philosopher-king, or at least a president with an angle on a test case to try to run this through?

In the first bimester:
1. Abortion rights get more federalized in general than they are now;

2. No two-doctor visits on separate days or other burdens;

3. Medicaid funding for the poor gets restored;

4. Parental notification for minors is allowable on a state-by-state basis to the same degree similar medical procedures in that state require parental notification or consent.

5. Minors under the statuatory age for sexual legality, or for marriage, whichever is lower, would have to have parental consent, except in the standard exceptions of maternal life, health, mental health, rape or incest.

In the second bimester:
1. States in general get broad controls.

2. Medicaid funding allowable on a state-by-state basis but not federally guaranteed.

3. Multiple doctor’s visits can be required, but not with a waiting period between.

4. Parental notification or consent requirements are the same as above.

5. Under No.1, in this section, that includes allowing states to go as far as criminalizing second-bimester abortions, with the exceptions of maternal life, health, mental health or incest.

Note that rape is not on this list. While that trauma alone would be difficult, it is true that rape produces relatively view pregnancies, and also, it is reasonable to expect a woman who does become pregnant under such circumstances to make an abortion decision within 18 weeks.

Incest, though, I allow to remain. The psychological, sociological and other dynamics are tougher than with rape.

In the case of mental health, I would require a concurrence by multiple doctors.

How likely is this in the real world? Not very. Few activists on either side of Roe would accept cutting the Gordian knot like this.

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