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Show OPINION Office of the Attorney General State of Utah the State, NO. that in nis medical regulation by judgment the patient's pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State. Roe v. Wade, 410 74-0- 32 October 15, 1974 U.S. PREPARED Paul S. Rose, Executive Director Utah State Department of Social Services BY: REQUESTED John Spencer Snow, Assistant Attorney General QUESTIONS Does the Utah State Division of Health have the authority to require the following procedures in regard to the performance of abortions during the first trimester of pregnancy: i home the state's interest in regulation overrides the woman's personal right. In the decision of Roe v. Wade, the United States Supreme Court outlined the three stages of pregnancy, which are set forth as follows: settings, the end of the (c) Require structural and other, physical features in areas where the abortions are being tion procedure in ways that are reasonably lated to maternal health. first trimester, the state, in promoting its interest in the health of the mother, may, if it chooses, regulate the aborre- , removed during the abortion procedure, (f) Require that a specific period of tion follow the procedure, observa- It is clear (g) Require consultation by other physicians under specific guidelines when a medical problem so indicates? See opinion. i INTRODUCTION The new Utah State abortion law, passed in the 1974 legislative session, has been codified as Utah Code Annotated, Sections et seq. (Supp. 1974). Section 303 of the new law states: '" . 01, may be performed in this state concurrence of the attending physithe without cian, based on his best medical judgment. Id . No abortion specific criteria by the legislature in exercising his best medical judgment in regard to the performance of an abortion. Section 304 of the new statutes The licensed physician has been supplied with provides: To enable the physician to exercise his best med- ical judgment, he shall: (a) her physical, emotional and chological health and her age, (c) her familial situation. notify, if possible, the parents or the woman upon whom the abortion is of guardian to be performed, if she is a minor or the husband of the woman, if she is married. Id. . United States Supreme Court in two major decisions has taken position in regard to the state's authority to regu-.-'Ja- te the performance of abortions. In the United States Supreme Court decision of Roe v. Wade, 410 U.S. 113 (1973), the highest court held, with respect to the state's important and legitimate interest in the health of the mother, that the "compel ling" The . a ' ' for. Iff," ' tl-- point, in the light of present medical knowledge, is at approximately the end of the first trimester of pregnancy. The court found it to be an established medical fact that until the end of the first trimester, mortality in abortion is less than mortality in normal child birth. Justice Blackman, rendering the majority opinion, stated that from and after the end of the first trimester, a state may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. He cited two examples of permissible state regulation after the first trimester. These permissible state regulations would be requirements as to the qualifications of ..the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed that is, whether it must be a hospital or may be a clinic or some other place of less than hospital status; as to .tho- licensing of the facility; and the like. Mr. Justice Blackman inadc the following statement in his majority opinion: This means, on the other hand, that, for the i period of pregnancy prior to this "compelling point," the attending physician, in consultation with his patient, is free to determine, without - : pregnancy prior decision, and basic responsibility for it must rest with the physician. If nn individual practitioner abuses the privilege of exercising proper medical judgment, the usual remedies, judicial and intraprnllessional, arc available. To permit the state to regulate, during the first trimester,, would directly interfere with the rights, of a pregnant woman to the abortion. A pregnant woman does not have nn absolute constitutional right to an abort ipn on her demand, but her attending physician, in consultation with her, is free to determine, without regulation by a medical the state, that in his medical judgment and should be terminated. The United Roe, v. States Wade, 410 U.S. patient's, at pregnancy 182. Supreme Court did, however, state, after the compelling point had been reached, as follows: Of course, important state interests in the area of health and medical standards do remain. The state has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient. This interest obviously extends at least to the performing physician and his staff, to the facilities involved, to the availand adequate provision for ability of after-car- e, or any complication emergency that might arise. Roe v. Wade, 410 U.S. at 175. psy- (2) ft first trimester, spects, is inherently and primarily safety, (b) this test that during the period of the abortion decision must be absolutely left to the judgment of the woman and her physician. The only regulation which may be imposed is the mcdicnl judgment of the physician himself in deciding to perform the abortion. The decision of the court vindicates the right of the physician to administer medical treatment according to his professional judgment up' to the points where important state interests provide compelling justifications for intervention. 'Up to those points, the abortion decision, in all re- to, tl from to the end of the consider all factors relevant to the (1) well being of the woman upon whom the abortion is to be performed, including, but not limited ' For - Require pathological examination of the (e) materials "TVH.'i the stage subsequent to viability, the in state, promoting its interest in the potentialhuman life may, if it chooses, regulate, ity of and even proscribe, abortion except where- it is necessary in appropriate medical judgment for the preservation of the life or health of the mother. Roe v. Wade, 410 U.S. at 164 (c) Require the presence of professional staff specify their background and training, (d) and 76-7-3- For the stage subsequent to approximately (b) lization methods and necessary instruments for performed, ANSWERS: which . performance of the indicated procedure, 1 is the point at (a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must bo loft to the medical judgment of the pregnant woman's attending-physician- Require emergency equipment, proper steri- (b) trimester of pregnancy, there is a compelling state has a legitimate interest in, seeing to it un- first "compelling point" non-hospi- tal, ng 163. state interest. The that the abortion, like any other medical procedure, is performed der circumstances that insure maximum safety for the patient. The (a) Inspect the premises where these services are performed when they are located in non-nursi- at At the end of the Vernon B. Romney; Attorney General BY: MONDAY, OCTOBER 21, 1974 INTERMOUNTAIN COMMERCIAL RECORD PCE FOURTEEN ,; The United 410 U.S. 179 (1973), States Supreme Court decision of poo v. Bolton, is in accord with the decision of Roe v. Wade. v. Bolton, the court upheld its position that an abortion is to be performed during the first trimester of the pregnancy based upon the best clinical judgment of the physician that such a procedure is necessary. The physician is to exercise his "best clinical" The court judgment in the light of all the attendant circumstances. went further to state that the hospital requirement during the first trimester of pregnancy is not valid. The woman's right to receive medical care in accordance with her licensed physician's best judgment and physician's right to administer the abortion are free of limitation by the state during the first trimester of pregnancy. The highest court also hold that the Georgia regulation requiring the confirmation of two Georgia-licensphysicians, in addition to the .recommendation of the pregnant woman's own consultant, is unconstitutional. The rationale of the court was that no other voluntary medical or surgical procedure in the State of Georgia required confirmation by two other physicians. The required acquiescence by had no rational connection with a patient's needs and unduly infringed upon the physician's right to practice. In Doe ed t the position that the physician has the right to administer medical treatment according to his own professional judgment up to the point whore important state interests provide compelling jusitif ications for intervention. The abortion decision, in all of its aspects, is inherently and primarily a medical decision, and basic responsibility for it must rest with the physician. The sole controlling factor during the first trimester rests with the physician in regard to his best clinical judgment. The Supremo Court has taken ANALYSIS 1(a). A physician is not restricted in his right to determine where an abortion is to bo performed upon his patient during the first trimester of pregnancy. This is clearly indicated in the two |