Reference no: EM133230144
Doe v. Bolton was a companion case to Roe v. Wade, decided by the Supreme Court on the same day in 1973. In the case, there was an issue regarding the scope of abortion rights for post-viability abortions. Specifically, the Court considered what it means for post-viability abortions to be permissible only if "necessary for the preservation of the mother's life or health." On this point, the Court in Doe held that for purposes of this exception, "health" could be construed to include the woman's psychological as well as her physical wellbeing. Moreover, the Court concluded that the professional judgment of the physician performing the abortion procedure "may be exercised in the light of all factors -- physical, emotional, psychological, familial, and the woman's age -- relevant to the wellbeing of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment. And it is room that operates for the benefit, not the disadvantage, of the pregnant woman."
In view of Dobbs v. Jackson Women's Health (2022), Doe is no longer the law of the land. However, some states are still struggling to define the scope of a permissible post-viability "health" exception to state-level abortion bans, if any is to be permitted. For example, Massachusetts recently passed a law, over the governor's veto, that will allow abortions after 24 weeks of pregnancy if "necessary, in the best medical judgment of the physician, to preserve the patient's physical or mental health" and in cases of a fatal fetal anomaly. The governor, Charlie Baker, opposed the law due to concerns with the ambiguity of the language surrounding a "mental health" exception. The Massachusetts law also permits 16- and 17-year-olds for the first time to seek an abortion without parental consent or a judicial hearing. Governor Baker opposed this provision as well.
1. How narrowly or broadly should a "health" exception for a post-viability abortion be construed and why?