Alablawg

Commentary on Alabama Law and Society

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Location: Birmingham, Alabama

Monday, May 22, 2006

Summit Medical Center

Lee at Bama Blog has collected the news and offers his opinion here, here, here, here, and here. Kathy at B'Ham blues comments here. Poser's take is here.

Long story short, non-Doctors at said clinic told a patient she was six weeks pregnant and then gave her an abortion-inducing drug. Less than a week later, the woman gave birth to a six pound four ounce stillborn child. While this is the most tragic incident, the investigation of it has uncovered plenty of other problems.

All I'll say now is that, contrary to the assertions of some bloggers, what occured at Summitt was almost certainly a felony.

Here, from Stenberg v. Carhart, is the general constitutional framework (internal citations omitted):

We again consider the right to an abortion. We understand the controversial nature of the problem. Millions of Americans believe that life begins at conception and consequently that an abortion is akin to causing the death of an innocent child; they recoil at the thought of a law that would permit it. Other millions fear that a law that forbids abortion would condemn many American women to lives that lack dignity, depriving them of equal liberty and leading those with least resources to undergo illegal abortions with the attendant risks of death and suffering. Taking account of these virtually irreconcilable points of view, aware that constitutional law must govern a society whose different members sincerely hold directly opposing views, and considering the matter in light of the Constitution's guarantees of fundamental individual liberty, this Court, in the course of a generation, has determined and then redetermined that the Constitution offers basic protection to the woman's right to choose. . . . We shall not revisit those legal principles. Rather, we apply them to the circumstances of this case.

Three established principles determine the issue before us. . . . First, before “viability the woman has a right to choose to terminate her pregnancy.” . . . .

Second, “a law designed to further the State's interest in fetal life which imposes an undue burden on the woman's decision before fetal viability” is unconstitutional. . . . An “undue burden is . . . shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” . . . .

Third, “ ‘subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.’"

In accord with the constitution, Alabama has chosen to proscribe post-viability abortions. Section 26-22-3 of the Alabama Code states:

no person shall intentionally, knowingly, or recklessly perform or induce an abortion when the unborn child is viable.

Doing so is a Class A felony, unless:

[The] abortion is performed by a physician and that physician reasonably believes that it is necessary to prevent either the death of the pregnant woman or the substantial and irreversible impairment of a major bodily function of the woman.

So, it appears that someone at Summitt has committed a felony. A non-Doctor performed the abortion, so the exception does not apply. Viability seems to be a given. To satisy the mental element of the statute ("intentionally, knowingly or recklessly") whoever provided the drug must have had some idea that the fetus was viable, or else whoever provided the drug ignored procedures that would have provided that knowledge. In my mind, the only way anyone could have 'mistaken' a fully grown baby for a six week old fetus is if they ignored procedures or else just did not care. In other words, if they acted "intentionally knowingly or recklessly."

The question is going to be how many people were involved? Was this just some assistant? Or was their a conspiracy with the Docs? Perhaps trying to evade the requirements of Section 26-22-3? I'm sure we will find the answer to these questions, and much more, as the investigation (during an election year) continues.