Logic, Law and Abortion
Abortion. The very word stirs people's emotions. Some feel that the woman's right to her body is absolute, while others feel the same about the right to life of the unborn. Heated discussions about abortion rarely attend to the reasoning of the U.S. Supreme Court's Roe V. Wade decision which in effect overturned all state laws restricting abortions. I In this article we submit the Court's arguments to some techniques of logical analysis. We hope to show that even relatively simple applications oflogical analysis can reveal serious weaknesses in the Supreme Court's reasoning in the Roe case. In Roe the Court struck down a Texas statute which prohibited all abortions except those performed for the purpose of saving the mother's life. The Court fashioned a three-part rule for regulation of abortions: (I) During the first trimester of pregnancy, government must leave the abortion decision to the medical judgement of the attending physician. (2) After the end of the first trimester of pregnancy, government may, if it chooses, pursue its interest in the mother's health by imposing regulations reasonably related to maternal health. (3) After the fetus becomes viable (approximately at the end of the second trimester), government may, if it chooses, pursue its interest in potential life by prohibiting abortion except where abortion is necessary to preserve the life or health of the mother. The Court resolved the issue under the 14th Amendment's Due Process Clause, which provides that no state shall "deprive any person of life, liberty, or property, without due process of law." The Court's basic theory was that this clause provides a special degree of protection for "fundamental" rights. This special degree of protection consists of a requirement that government demonstrates that any burden it imposes upon a fundamental tight be a necessary means of promotinga compelling governmental interest. This requirement on governmental laws concerning abortion is an instance of the Court applying a "strict" standard of review in contrast to a "minimum rationality" standard of review, the standard the Court uses most of the time. A standard of review is a Court created criterion used to determine when governmental interests can override personal rights. 3 The