Fifth in a series.
I agree that, under the Fourteenth Amendment to the Constitution, the abortion statutes of Georgia and Texas impermissibly limit the performance of abortions necessary to protect the health of pregnant women, using the term health in its broadest medical context.
In oral argument, counsel for the State of Texas informed the Court that early abortion procedures were routinely permitted in certain exceptional cases, such as nonconsensual pregnancies resulting from rape and incest. In the face of a rigid and narrow statute, such as that of Texas, no one in these circumstances should be placed in a posture of dependence on a prosecutorial policy or prosecutorial discretion. Of course, States must have broad power, within the limits indicated in the opinions, to regulate the subject of abortions, but where the consequences of state intervention are so severe, uncertainty must be avoided as much as possible. For my part, I would be inclined to allow a State to require the certification of two physicians to support an abortion, but the Court holds otherwise. I do not believe that such a procedure is unduly burdensome, as are the complex steps of the Georgia statute, which require as many as six doctors and the use of a hospital certified by the JCAH.
This is written by Mr. Justice Burger in his concurring opinion. (Blackmun wrote the majority opinion, and Burger is agreeing.
He seems to be saying that the terms of the Texas law are so rigid that "early abortion procedures were routinely permitted in certain exceptional cases" even though the law made no mention of such exceptions. In the face of such situations if the law were followed strictly, then the woman who is pregnant as the result of rape or incest is essentially dependent upon a prosecutor for legal remedy, which would allow, by definition "prosecutorial discretion." In other words, should a prosecutor conclude, for whatever reason, that there was no case to be made, then the victim would have no legal remedy from her condition.
He says quite wisely that "where the consequences of state intervention are so severe, uncertainty must be avoided as much as possible." I would imagine that reasonable people would agree with such a statement.
Read this next paragraph very closely, particularly the last sentence:
I do not read the Court's holdings today as having the sweeping consequences attributed to them by the dissenting Justices; the dissenting views discount the reality that the vast majority of physicians observe the standards of their profession, and act only on the basis of carefully deliberated medical judgments relating to life and health. Plainly, the Court today rejects any claim that the Constitution requires abortions on demand.
It is worth repeating:
Plainly, the Court today rejects any claim that the Constitution requires abortions on demand.
No, maybe we are not completely there yet from a legal standpoint, but for practical purposes we are. The court never countenanced what happened in the aftermath of Roe v Wade.