Saturday, December 06, 2008

Abortion debate notes, Texas statute

(Fourth in a series.
See first

Abortion -- the unmentionable word

Abortion Cases - Roe vs. Wade - Court Opinion by Blackmun.

Abortion debate, continued

In an ongoing attempt to inform both myself and anyone who cares to follow along, I blog this exerpt from the original Roe v Wade decision as written by Mr. Justice Blackmun in 1973. The language of this important decision provides a framework for any legislative remedy to the swelling numbers and casual acceptance of abortion that has ensued over the last thirty years.

Here is a synopsis of the Texas statute that was at issue in the Roe case; Part I, Section 1.
I do not have time to make comments this morning, but will do so later. In the meantime, here is the text:

The Texas statutes that concern us here are Arts. 1191-1194 and 1196 of the State's Penal Code. These make it a crime to "procure an abortion," as therein defined, or to attempt one, except with respect to "an abortion procured or attempted by medical advice for the purpose of saving the life of the mother." Similar statutes are in existence in a majority of the States.

Abortion If any person shall designedly administer to a pregnant woman or knowingly procure to be administered with her consent any drug or medicine, or shall use towards her any violence or means whatever externally or internally applied, and thereby procure an abortion, he shall be confined in the penitentiary not less than two nor more than five years; if it be done without her consent, the punishment shall be doubled. By "abortion" is meant that the life of the fetus or embryo shall be destroyed in the woman's womb or that a premature birth thereof be caused.

Furnishing the means Whoever furnishes the means for procuring an abortion knowing the purpose intended is guilty as an accomplice.

Attempt at abortion If the means used shall fail to produce an abortion, the offender is nevertheless guilty of an attempt to produce abortion, provided it be shown that such means were calculated to produce that result, and shall be fined not less than one hundred nor more than one thousand dollars.

Murder in producing abortion If the death of the mother is occasioned by an abortion so produced or by an attempt to effect the same it is murder.

By medical advice Nothing in this chapter applies to an abortion procured or attempted by medical advice for the purpose of saving the life of the mother.
The foregoing Articles, together with Art. 1195, compose Chapter 9 of Title 15 of the Penal Code.

Article 1195, not attacked here, reads:

Destroying unborn child Whoever shall during parturition of the mother destroy the vitality or life in a child in a state of being born and before actual birth, which child would otherwise have been born alive, shall be confined in the penitentiary for life or for not less than five years.

Texas first enacted a criminal abortion statute in 1854. This was soon modified into language that has remained substantially unchanged to the present time. The final article in each of these compilations provided the same exception, as does the present Article 1196, for an abortion by "medical advice for the purpose of saving the life of the mother."

Long ago, a suggestion was made that the Texas statutes were unconstitutionally vague because of definitional deficiencies. The Texas Court of Criminal Appeals disposed of that suggestion peremptorily, saying only,
"It is also insisted in the motion in arrest of judgment that the statute is unconstitutional and void in that it does not sufficiently define or describe the offense of abortion. We do not concur in respect to this question."

The same court recently has held again that the State's abortion statutes are not unconstitutionally vague or overbroad. The court held that "the State of Texas has a compelling interest to protect fetal life"; that Art. 1191 "is designed to protect fetal life"; that the Texas homicide statutes, particularly Art. 1205 of the Penal Code, are intended to protect a person "in existence by actual birth" and thereby implicitly recognize other human life that is not "in existence by actual birth"; that the definition of human life is for the legislature and not the courts; that Art. 1196 "is more definite than the District of Columbia statute upheld in [United States v.] Vuitch"; and that the Texas statute "is not vague and indefinite or overbroad." A physician's abortion conviction was affirmed.
In Thompson the court observed that any issue as to the burden of proof under the exemption of Art. 1196 "is not before us."

* * * * *

Italics are mine.
Before overturning the statute, it was first necessary to state what the law said.
The language apparently had not changed much in a hundred years. My first observation is that abortions were still being performed despite the law. In the same way that prohibition did not stop the use of alcoholic drinks, neither did abortion statutes such as this prevent abortions.
The all-or-nothing approach seems tantamount to doing nothing. Do laws against adultery stop people from sleeping around? Or gambling? Or prostitution?

Enforcement, you say? Sure. Like the war on drugs is resolving the drug problem. (I find it ironic that Afghanistan, our poster child for nation building and budding democratic ideals, is also furnishing most of the world heroin supply. But that is getting off-topic.)

I would like to see the "woman's right to choose" unrestricted through the first trimester. I would rather have lawyers and doctors quarreling over the precise meaning of "first trimester" than other more obscure legal issues that win, lose or draw are allowing babies to be taken later in their development.

The question to ask is this: At what point does the state have an interest in protecting unborn future taxpayers?

There is a more effective enforcement mechanism than fines or imprisonment: doctors and other medical professionals are licensed by the state.
No one wants a license to be called into question.

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