1 Roe v. Wade, 410 U.S. 113, 148-50 (1€973). [Back]
4 Id. at 163 (emphasis added). This use of comparative mortality rates as the dividing line determining when the State may regulate abortion to protect the health interests of women was also stated and reaffirmed in Planned Parenthood v. Casey, 505 U.S. 833, 929 (1992). [Back]
5 Doe v. Bolton, 410 U.S. 179, 208 (1973). It should be noted that the court has also made subsequent statements reflecting the belief that mortality rates for abortion are lower than for childbirth. In Stenberg v. Carhart, 530 U.S. 914, 923-924 (2000), there is this language: "Vacuum aspiration is considered particularly safe. The procedures for mortality rates are, for example, 5-10 times lower than those associated with carrying the fetus to term." Id. (citing OBSTETRICS: NORMAL & PROBLEM PREGNANCIES 1251 (Steven G. Gabbe et al. eds., 3rd ed. 1996); Herschel W. Lawson et al., Abortion Mortality, United States, 1972 through 1987, 171 AM. J. OBSTETRICS & GYNECOLOGY 1365, 1368 (1994); MAUREEN PAUL ET AL., A CLINICIAN'S GUIDE TO MEDICAL AND SURGICAL ABORTION 108-109 (1999)). None of these cited sources, however, take into account the recent record-based studies discussed herein. Moreover, the mortality statistics they do rely upon are subject to all of the same criticisms described below. [Back]
6 Casey, 505 U.S. at 861-64. [Back]
7 Mika Gissler et al., Pregnancy-Associated Deaths in Finland 1987-1994 -- Definition Problems and Benefits of Record Linkage, 76 ACTA OBSTETRICIA ET GYNECOLOGICA SCANDINAVICA 651 (1997). [Back]
8 David C. Reardon et al., Deaths Associated with Pregnancy Outcome: A Record Linkage Study of Low Income Women, 95 S. MED. J. 834 (2002). [Back]
9 Such an interpretation would be consistent with reasoning employed in Casey which noted that advances in medical knowledge required a rejection of the strict trimester system established in Roe. Casey, 505 U.S. at 873. Regarding the interest of the State in protecting viable unborn humans, the Court recognized that advances in fetal care had resulted in a shift in viability into the second trimester, which meant that the State therefore had a compelling interest in protecting viable human lives prior to the third trimester. Id. at 859-60. Using similar reasoning, the Court might rule that Roe's other central holding -"the State may enact regulations to further the health or safety of a woman seeking an abortion," id. at 878, and the State's interest in regulating abortion for this purpose is compelling "at that point that the mortality rate in abortion approaches that in childbirth," id. at 878, 929, - provides a basis for allowing State regulation of abortion in the first trimester in light of the new evidence that the mortality rate associated with abortion, even in the first trimester, exceeds that associated with childbirth. [Back]
10 Casey, 505 U.S. at 865. [Back]
11 In Casey, the Court acknowledged that changes in factual understanding have necessitated the reversal of basic judicial interpretations of the Constitution in the past, but that the claim of such a change in facts had not been presented to the Court in Casey. Id. at 861-64. In a discussion of cases when the Court had appropriately overruled prior interpretations of constitutional law, the court noted, as an example, that West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), "signaled the demise of Lochner" because the Depression had exposed the
false factual assumptions about the capacity of a relatively unregulated market to satisfy minimal levels of human welfare . . . The facts upon which the earlier case [Lochner] had premised a constitutional resolution of social controversy had proven to be untrue, and history's demonstration of their untruth not only justified but required the new choice of constitutional principle that West Coast Hotel announced. . . . [T]he clear demonstration that the facts of economic life were different from those previously assumed warranted the repudiation of the old law.
Id. at 861-62.
Similarly, in the face of growing evidence about the higher mortality rates associated with abortion, in addition to new evidence linking abortion with higher rates of physical and psychological morbidity, it has become clear (to paraphrase the Court's abovestated analysis of Lochner) that Roe rests on false factual assumptions about the capacity of a relatively unregulated abortion industry to satisfy minimal levels of women's welfare. [Back]
14 "Some amici argue that the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree." Roe, 410 U.S. at 153. "The privacy right involved, therefore, cannot be saId to be absolute. . . . The Court has refused to recognize an unlimited right of this kind in the past." Id. at 154. "Even an adult woman's right to an abortion is not unqualified." H.L. v. Matheson, 450 U.S. 398, 419 (1981) (Powell and Stewart, concurring); see also Planned Parenthood v. Danforth, 428 U.S. 52, 60 (1976); Casey, 505 U.S. at 875-76. [Back]
15 Casey, 505 U.S. at 869. [Back]
16 In the United Kingdom, the 1967 abortion act provides that an abortion is legal
if two registered medical practitioners are of the opinion, formed in good faith - a) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of the pregnant woman or any existing children or of her family, greater than if the pregnancy were terminated; or b) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.
The Public General Acts, 1967, p. 2033, (Eng.) (emphasis added); see also The Public General Acts, Human Fertilization and Embryology Act, 1990, p.1493, c.37 (Eng.) The Act states that the time limit is defined in terms of
(a) that the pregnancy has not exceeded its twenty-fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family or (b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or (c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or (d) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.
Id., available at http://www.legislation.hmso.gov.uk/cgibin/search.pl?DB=hmso-new (last visited Apr. 17, 2004). [Back]
17 Kevin Sherlock, Victims of Choice, 134-35 (1996). [Back]
Id.19 SHERLOCK, supra note 17, at 33; James A. Miller, ÔSafe and Legal'--Back in New York and Maryland, HLI REPORTS, Feb.1993, at 8-9; Retha Hill, 2 Tragedies Raise Doubts About Suitland Clinic: Abortion Patient, Left Paralyzed, Files Suit, WASH. POST, Aug. 13, 1990, at A1; Botched-abortion Victim Dies in Baltimore, WASH. TIMES, Dec. 2, 1992, at B2. [Back]
20 Lisa M. Koonin et al., Abortion Surveillance--United States, 1992, 45 MORBIDITY & MORTALITY WEEKLY REPORT 1, 17 (1996). [Back]
21 William Cates, Jr., et al., Mortality From Abortion and Childbirth: Are the Statistics Biased?, 248 JAMA 192-96 (1982). [Back]
22 Timothy D. Dye et al., Retrospective Maternal Mortality Case Ascertainment in West Virginia, 1985 to 1989, 167 AM. J. OBSTETRICS & GYNECOLOGY 72, 76 (1992); Centers for Disease Control and Prevention, Pregnancy-Related Mortality-Georgia, 1990- 1992, 44 MORBIDITY & MORTALITY WEEKLY REPORT 81, 93 (1995); Isabelle L. Horan et al., Enhanced Surveillance for Pregnancy-Associated Mortality -- Maryland, 1993-1998, 285 JAMA 1455, 1455 (2001). [Back]
23 World Health Organization, The International Statistical Classification of Diseases and Related Health Problems (9th rev. 1978). [Back]
24 Horan, supra note 22, at 1459. [Back]
25 Gissler, supra note 7, at 652. [Back]
26 Centers for Disease Control, Abortion Surveillance (1979). [Back]
27 Hani K. Atrash et al., Ectopic Pregnancy Concurrent with Induced Abortion: Incidence and Mortality, 162 AM. J. OBSTETRICS & GYNECOLOGY 726, 729 (1990); J. M. Hardman et al., Ectopic pregnancy association with induced abortion: message for the pathologist, ARCHIVES PATHOLOGY & LABORATORY MED. 117, 698-700 (1993). [Back]
28 Catherine Tharaux-Deneux et al., Risk of Ectopic Pregnancy and Previous Induced Abortion, 88 AM. J. PUB. HEALTH 401 (1998); See generally Ann Aschengrau Levin et al., Ectopic Pregnancy and Prior Induced Abortion, 72 AM. J. PUB. HEALTH 253 (1982). [Back]
29 Kees P. Nederof et al., Ectopic Pregnancy Surveillance, United States, 1970 - 1987, 39 MORBIDITY & MORTALITY WEEKLY REPORT 9 (1990). [Back]
30 Isabelle Bégin, False Abortion Statistics Exposed, REALITY (REAL Women of Canada, Ottawa, Ontario), Sept.-Oct. 1999, available at http://www.realwomenca.com/newsletter/1999_Sept_Oct/article_10.html (last visited Apr. 17, 2004). [Back]
31 See generally SHERLOCK, supra note 17. According to one assessment by the Centers for Disease Control, NCHS data Identified only thirty percent of the abortionrelated deaths that CDC Identified through its follow-up system, which also has many weaknesses as described elsewhere in this paper. See William Cates, Jr., et al., Assessment of Surveillance and Vital Statistics Data for Monitoring Abortion Mortality, United States, 1972-1975, 108 AM. J. EPIdEMIOLOGY 200, 201 (1978). See also Cates, Jr., et al., supra note 21, at 192-6. [Back]
32 Cates, Jr., et al., supra note 31, at 201. [Back]
35 SHERLOCK, supra note 17, at 117. [Back]
36 Mark Crutcher, Lime 5 146 (1996). [Back]
37 Thomas W. Hilgers, M.D., & Dennis O'Hare, Abortion Related Maternal Mortality: An In-Depth Analysis, in NEW PERSPECTIVES ON HUMAN ABORTION 69, 70 (Thomas W. Hilgers et al. eds., 1981). [Back]
38 Cates, Jr., et al., supra note 21, at 193 (emphasis added). [Back]
40 Cates, Jr., et al., supra note 31, at 201. [Back]
41 C. Chandra Sekar & W. Edwards Deming, On a Method of Estimating Birth and Death Rates and the Extent of Registration, 44 J. AM. STAT. ASS'N 101, 102 (1949). Note: The authors' names were cited incorrectly by the CDC authors. [Back]
42 Id. at 102.; Cates, Jr., et al., supra note 31, at 201. [Back]
43 Sekar & Deming, supra note 41, at 103 (emphasis added). [Back]
44 Cates, Jr., et al., supra note 21, at 193. [Back]
45 Sekar & Deming, supra note 41, at 102. [Back]
47 Cates, Jr., at al., supra note 31, at 201. [Back]
51 Id. at 201; Cates, Jr., et al., supra note 21, at 193. [Back]
52 CRUTCHER, supra note 36, at 135-70. [Back]
53 World Health Organization, The International Statistical Classification of Diseases and Related Health Problems (10th rev. 1992). [Back]
54 Hani K Atrash et al., Maternal and Perinatal Mortality, 4 CURRENT OPINION IN OBSTETRICS & GYNECOLOGY 61, 62 (1992). Yet another proposal has been made to measure the "reproductive mortality rate," which would include deaths from complications of contraception as well as those from pregnancy, delivery, and abortion. This even broader definition has been proposed since deaths from contraception complications now appear to be more common than deaths from childbirth. See Benjamin P. Sachs et al., Reproductive Mortality in the United States, 247 JAMA 2789 (1992); Maternal Morality Committee, I.M.A. Maternal Morality Committee Report 1981, 75 IRISH MED. J. 484 (1982). [Back]
55 Gissler, supra note 7, at 652. [Back]
57 Id. at 253. The odds ratios reported here are derived from the results reported in Table 3 by dividing the age-adjusted odds ratio reported for abortion by the age-adjusted odds ratio reported for childbirth. [Back]
58 Reardon, supra note 8, at 834. [Back]
60 This estimate is based on a projection of the low and high odds ratios determined by the ninety-five percent confidence interval (1.30 to 1.99) reported in Table 3, Id., to an estimated 1.4 million women having abortions each year. It also assumes the base rate of 507.7 deaths per 100,000 for all causes of death over an eight-year follow-up period also reported in Table 3.
Another way to measure the potential cost of higher death rates is in terms of womanyears. If the average life expectancy of a woman is around seventy-six, and the average age at time of death among the excess number of deaths associated with abortion is twenty-eight, this translates to forty-eight woman-years lost per death. In the one-year follow-up study by Gissler (supra note 7), compared to delivering women there were 73.8 extra deaths per 100,000 for women who had abortions. Multiplied by forty-eight woman-years lost, this equals 3542 woman-years per 100,000 abortions. Projected onto the entire population of approximately thirty million American women who have had abortions, this represents a potential loss of 1.1 million woman-years. Applying the same formula to the excess deaths identified in the eight-year period examined by Reardon, supra note 8, the same method and assumptions would produce an estimated loss of 14,400 woman-years per 100,000 abortions. [Back]
61 World Health Organization, World Report on Violence and Health (Etienne G. Krug et al. eds., 2002) at 10 tbl.1.2. [Back]
62 Reardon, supra note 8, at 838. [Back]
63 Gissler, supra note 7, at 653. [Back]
64 Clinicians who specialize in post-abortion counseling have reported case studies in which traumatic reenactment of a past abortion has been manifested by intrusive thoughts of hurting a woman's other children. THERESA K. BURKE & DAVID C. REARDON, FORBIDDEN GRIEF: THE UNSPOKEN PAIN OF ABORTION 182-85 (2002).
One week after Donna Fleming's second abortion, Donna was depressed and distraught and began to "hear voices." With the hope of reuniting herself and her two living sons with her aborted children, she jumped off a bridge in Long Beach California with her five-year-old and two-year-old sons in her arms. Donna and her five-year-old son were rescued; her two-year-old died. A. McFadden, The Link Between Abortion and Child Abuse, FAMILY RESOURCES CENTER NEWS, January 1998, at 20.
Sandi Nieves was convicted of setting a fire in the kitchen of her home where she and her five children slept, which led to the death from smoke inhalation of four of her daughters. Nieves and her son survived the apparent suicide/homicide attempt. Nieves had been taking antdeepressent drugs to cope with her abortion that occurred just five days before the fire. Caitlin Liu, Mother Breaks Down in Tears at Murder Trial, L.A. TIMES, June 20, 2000, at B3.
Renee Nicely of New Jersey experienced a "psychotic episode" the day after her abortion that resulted in the beating death of her three-year-old son, Shawn. She told the court psychiatrist that she "knew that abortion was wrong" and "I should be punished for the abortion." The psychiatrist who was the prosecution's expert witness testified that the killing was clearly related to Renee's psychological reaction to her abortion. Debra Braun, Woman Kills 3-Year-Old Son One Day After Obtaining Abortion, NAT'L. RIGHT TO LIFE NEWS, Oct.13, 1983, at 12. [Back]
65 See Louis Appleby, Suicide During Pregnancy and in the First Postnatal Year, 302 BRIT. MED. J. 137 (1991); Sandra J. Drower & Eleanor S. Nash, Therapeutic Abortion on Psychiatric Grounds: Part I. A Local Study, 54 SOUTH AFRICAN MED. J. 604 (1978); Bengt Jansson, Mental Disorders After Abortion, 41 ACTA PSYCHIATRICA SCANDINAVIA 87 (1965); Louis Appleby & Gill Turnbull, Parasuicide in the First Postnatal Year, 25 PSYCHOL.MED. 1087 (1995). [Back]
66 Georg Hoyer & Eiliv Lund, Suicide Among Women Related to Number of Children in Marriage, 50 ARCHIVES GEN. PSYCHIATRY 134, 137 (1993). [Back]
67 Marsho M. Linehan et al., Reasons for Staying Alive When You Are Thinking About Killing Yourself: The Reasons for Living Inventory, 51 J. COUNSELING & CLINICAL PSYCHOL. 276 (1983). [Back]
68 Jansson, supra note 65, at 87. [Back]
69 Esther R. Greenglass, Therapeutic Abortion and Psychiatric Disturbance in Canadian Women, 27 CANADIAN PSYCHIATRIC ASS'N J. 453 (1976). [Back]
70 Christopher Morgan et al., Suicides After Pregnancy: Mental Health May Deteriorate as a Direct Effect of Induced Abortion, 314 BRIT.MED. J. 902 (1997). [Back]
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