Federal Court Points Way for Abortion Ban

Federal Court Points Way for Abortion Ban

The Roe v. Wade case that legalised abortion in America, specifically allows states to regulate or ban abortion to protect women's health at that point in time when the risk of death associated with abortion exceeds that associated with childbirth.

  • In 1973 it was believed that abortion during the first trimester was safer than childbirth.
  • We now know that abortion is more dangerous than previously thought.
  • Records show that death rates from illegal abortions were falling before women had access to legal abortion.
  • To prevent a return to illegal abortions it has been proposed that the woman, or her partner, could sue the abortionist in a civil liability suit for reckless endangerment or injury.
Early in 2004, Norma McCorvey, the "Roe" of the 1973 Roe v. Wade case that legalised abortions in America, was granted the right to appeal the Supreme Court decision.

McCorvey, who joined with anti-abortion activists nearly 10 years ago, is seeking to have the decision overturned, citing what she says is more than 30 years of evidence that abortions are psychologically harmful to women.

A three-judge panel of a federal appeals court dismissed the motion.

In a concurring opinion, Judge Edith Jones indicated that it was unfortunate that the case was moot since the thousands of pages of affidavits and evidence accompanying the motion "go to the heart" or the factual assumptions made in Roe.

In order to achieve this Reardon offers the following solution:
"To prevent a return to illegal abortions, the threat of abortionists facing criminal prosecution must be bolstered by adding full exposure to civil liability. For example, in our bill we would also allow the woman and her spouse to sue anyone who attempted or completed an illegal abortion on the woman for reckless endangerment, plus any other injuries.

The reckless endangerment alone would be defined as an injury and would require a minimum award of damages of no less than $400,000. In these cases, the plaintiffs would not have to prove any other injury. The same applies to anyone who aids or counsels her in performing a self-abortion.

By opening the door to civil liability in this way, we aren't reliant on the zeal of local prosecutors. Would-be abortionists would live in fear not only of the police, but also in fear of former clients. This double threat is the surest way to block any return to illegal abortions."

Tougher Liability Standards
Reardon wants tough, stream-lined civil liability for negligent screening or recommendations that lead to unnecessary or unsafe abortions. He also believes this liability should be linked to a generous statute of limitations so women can sue for emotional injuries that may erupt even decades later.

As Reardon believes there will always be some abortionists willing to use "exclusions" as a "licence to perform unnecessary and dangerous abortions," he says that the thought of civil liability suits against them will make then reconsider.

Reardon and the Elliot Institute propose that legislation:
  1. define all abortions as illegal, but
  2. allow limited exemptions from prosecution for physicians who are reasonably acting to protect women's health, while
  3. provide that any physician performing an abortion is exposed to high liability risks if he failed to adequately screen for risk factors and verify to a high degree of medical certainty that the risks of not doing the abortion greatly outweighed the risks of doing it.
The Chances of Supreme Court Approval Are High
Reardon believes that such a law would be upheld by the current Supreme Court because of the new evidence demonstrating that abortion is hurting women. Reardon said. "Even pro-abortion justices will be hard pressed to deny that abortionists should be held more accountable for ensuring that any abortions that are performed are more likely to benefit women than hurt them."

A Model Bill
The Elliot Institute offers a model bill on it's website that, they say, can make abortion go away without either harming women or embarrassing the Supreme Court.

Reardon suggests that the best way to stop physicians from performing unnecessary, unjustified, or unsafe abortions is through expanding civil remedies. This leaves the medical decision and responsibility with the doctor.

"In other words, Reardon says, "our model bill provides the Court with a way to end the era of unregulated, unsafe, and unnecessary abortions that has followed Roe, without completely overturning the concept that physicians should not be subject to criminal prosecution when they are sincerely acting to save the life of their patients. By focusing on expanded civil remedies for unnecessary and unsafe abortions, we are following the one option left open by the courts that can truly reverse the deluge of abortions that followed Roe."

The Elliot Institute's model legislation can be found at www.afterabortion.info/leg.

The Elliot Institute is an organisation opposed to abortion, which does research into the affects of abortion.

For the full decision, go to http://www.ca5.uscourts.gov/opinions/pub/03/03-10711-CV0.wpd.pdf