The state of Olympus recently passed a law prohibiting abortions sought because of "race, color, national origin, ancestry, sex, sexual orientation or diagnosis or potential diagnosis of the fetus having Down syndrome or any other disability." As part of the enforcement of this statute, the state of Olympus requires anyone seeking an abortion to disclose their family history and provide a reasonable accounting of the family history of the suspected father. The woman seeking the abortion also has to undergo counseling to verify her reason for the abortion and to make certain she is not seeking an abortion because she suspects or knows the fetus has one of the above characteristics.
Jane Doe was 40 years and pregnant with her first child. Given her age, she underwent early genetic testing while she was 10 weeks pregnant and found that the fetus showed markers for a rare genetic disorder that results in a 50 percent chance of the baby being stillborn and of the 50 percent who survive birth, only 10 percent survive to their first birthday, and to date, only a handful of people (less than 50) have lived to into their 20s.
After learning the news, Ms Doe sought an abortion from her doctor, Cynthia Sommerman. Dr. Sommerman performed an abortion and was subsequently fined for violating the prohibition because the state maintained the fetus was aborted due to disability. Dr. Sommerman maintained that 1) given the severity of it's symptoms, the genetic disorder was a medical condition and not a disability and should not be included under the statute and 2) that the statute as a whole places an undue burden on women seeking abortion. Dr. Sommerman moves for a dismissal of the charges and the fine.
Using the materials we have read in this class answer the following questions:
is there any other information you would need to render a verdict (why or why not)
how would you rule on Dr. Sommerman's motion for a dismissal and why would you rule that way?
On Dr. Sommerman's motion for a dismissal, in 2012, voters in the State of Olympus adopted Proposition 417. Proposition 41 requires women seeking an abortion in the State of Olympus to first submit to a transvaginal ultrasound (“the ultrasound procedure”). The ultrasound procedure is to be performed by a physician who is licensed in Olympus to practice medicine and to perform ultrasounds. The physician is required to read a script prepared by the State. According to the rules and regulations developed by the Olympus Department of Public Health, the ultrasound procedure is to be performed while the woman is “awake and alert,” and she is to face the machine’s monitor. See Appendix III. Women are not allowed to obstruct their ears so as to be unable to hear their physician. Physicians must ensure that the woman has viewed the ultrasound and that, if capable, that she has heard the baby’s heartbeat.
If the father of the baby is present at the medical facility, he can request to be present with the woman undergoing the ultrasound procedure, but the woman may object to his presence. At the conclusion of the ultrasound 3 procedure, the woman is to be presented with a record of the test indicating the baby’s size and shape, along with a pamphlet created by the State entitled, “What a Woman Should Know About Risks Associated with Abortion.” This pamphlet, the full text of which is not included in this record, describes a baby’s weekly development, explains different abortion procedures, and details the mental and physical health risks to women who procure abortions. These risks include, but are not limited to, suicide, depression, breast cancer, fever, hemorrhage, and infertility. The father of the baby may request the record of the test results, but the woman has the authority to instruct the doctor to deny such a request. The father is entitled by law to a copy of the pamphlet.