Legal Studies 397N Law and Public Policy Professor Arons October 7 2008 Five Page Policy Memorandum Reproductive Freedom in Massachusetts Assume that upon graduation from the University you secure a job as a legislative aide to Massachusetts State Representative Margaret Sanger You received the following memo from your boss when you arrived at your State House office today To your name From Representative Sanger Re Future Massachusetts abortion policy Date October 7 2008 As you know a number of legal scholars and political observers have been suggesting that the U S Supreme Court may severely curtail the federal constitutional basis of a woman s right to abortion in the next year or two The Court may accomplish this by ruling that a woman s right to choose is no longer regarded as fundamental under the Constitution by accepting a state legislative claim that human life begins at conception or by deciding that the protection of potential life is now regarded as a compelling state interest that a state can assert in order to overcome a woman s right to choose abortion at any stage of pregnancy It may happen gradually case by case or it may happen all at once Either way if it does happens abortion policy will become a matter of individual state laws that could protect criminalize or regulate abortion differently from one state to another In order to prepare for the possibility that a U S Supreme Court decision might leave Massachusetts with no abortion policy at all for some period of time two very different groups of Massachusetts legislators have gotten together to draft and introduce competing bills for setting up and putting into effect a state policy on reproductive freedom Of course each group of legislators is trying to come up with an abortion law that it can claim will best serve the public interest secure the health and welfare of women in the Commonwealth respect human life and potential human life and not interfere with the moral tone the religious freedoms and the values that unite our diverse citizenry The following two bills have been drafted for introduction in the next legislative session HOUSE BILL 1 Every woman in Massachusetts shall have the legal right in consultation with her physician to choose to have an abortion at any time during a pregnancy up to the point of fetal viability as determined by recognized medical standards at the time of the pregnancy No specific reasons for choosing an abortion shall be required up to the point of viability but after the point of viability no abortion shall be performed in Massachusetts except to protect the life of the mother or her physical or mental health The State shall adopt regulations that ensure that abortion procedures are performed under circumstances that are safe for the woman and that are consistent with the requirements of standard medical care 1 HOUSE BILL 2 It shall be illegal to perform an abortion on any woman in Massachusetts except in the case of rape or incest or to save the life of the mother or to protect her from grievous deterioration of her physical health Any physician performing a prohibited abortion shall permanently lose his or her license to practice medicine in Massachusetts Any non physician performing a prohibited abortion shall be guilty of a felony punishable by imprisonment of 5 10 years For those abortions that can legally be performed under the requirements of this statute the State shall adopt regulations that ensure that those abortion procedures are safe for the woman and are consistent with the requirements of standard medical care I want you to prepare a memorandum that will help me to be a well informed participant in the committee hearings that will begin soon after these bills are introduced I want to be sure that I really understand the issues at stake here I am particularly concerned about the effect that abortion policy will have on the liberty and equality of women on the protection of existing human lives and on potential human life upon which our future depends But I do not want to get caught up in the overwrought emotional claims that often have characterized the public debate over abortion during the past thirty or forty years Since the two bills are so different I also want to be able to think about whether there might be some middle ground between them that I might advocate in the hearings If there were a possible compromise I imagine that it might deal with whether the law should have any special provisions to deal with pregnant minor females and their parents with the biological fathers of fetuses with state funding for poor women who may not have access to good medical care for whatever abortions are legal under the new law and with the issue of contraceptive availability Let me also make clear to you what I do not want in your memo I do not want an analysis of the political pressures or consequences that might arise in my district as a result of any position that I might take on these bills or on a compromise between them I want to do the right thing here and I want to be able to defend my decision in an honest and well informed way If I can do that I am content to let the political chips fall where they may I also do not want an analysis of federal law or constitutional issues or cases If Roe and or Casey are overruled the issue of reproductive rights will be cut loose from the U S Constitution and argument based on constitutional law will be irrelevant and ineffective But you may and perhaps should take into account some of the important ideas and policies that lie behind the legal discussion e g Don t discuss the constitutional definition of fundamental individual liberty but you may discuss whether gender equality matters and whether why it is important that women be able to decide what to do with their bodies and their reproductive lives Don t discuss the Court s refusal to decide when life begins or why it determined that a fetus is not a person for purposes of the 14th Amendment but you may discuss why it is important to protect potential human life and whether deeply held religious or moral values should be part of our state law in this area 2 Here is your assignment Using and citing where appropriate materials assigned for your Law and Public Policy class and any research that you may have done already on reproductive freedoms prepare a five page memo giving Representative Sanger your analysis of two or three of the main arguments issues or principles