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UMass Amherst LEGAL 397N - Five-Page Policy Memorandum

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Legal Studies 397N Professor AronsLaw and Public Policy October 7, 2008Five-Page Policy Memorandum Reproductive Freedom in MassachusettsAssume that upon graduation from the University, you secure a job as a legislativeaide 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 SangerRe: Future Massachusetts abortion policy.Date: October 7, 2008As 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 Massachusettswith no abortion policy at all for some period of time, two very different groups of Massachusettslegislators 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 1Every woman in Massachusetts shall have the legal right, in consultation with herphysician, 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 ofthe 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.1HOUSE BILL 2It 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, theState 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 getcaught 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 anyposition 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 youmay, 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).”2Here 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


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