NJ court ruling blocking newborn's dad from delivery room is first in nation

[happyslug]

211. That is the legal basis behind Roe vs Wade.

That abortion is a MEDICAL PROCEDURE that involving what a WOMAN wants to do with her body. Thus no one else, in the first trimester, could under Roe Vs Wade, interfere with the right of a woman to give birth. Stronger rules as to getting an abortion applied to the Second Trimester, but it was still the woman's option. In the third Trimester, even under Roe vs Wade, strict restrictions as to her options as to abortion could be applied.

The US Supreme Court adopted the above three trimester rule, for it had been the Common Law Rule till the Medical Community, starting in the 1830s, wanted to make abortion illegal EXCEPT IF DONE BY A DOCTOR. Prior to the 1830s (and for many decades afterward, the change was slow, but steady) midwives not only delivered babies but also did abortions. Before you say the doctors of the time period were better TRAINED, remember prior to the LATE 1800s, most doctors only went one year of Medical School. Yes one year. One female doctor who served in the Civil War, went to and graduated from TWO medical schools, both one year in length.

I bring up the level of training of most doctors in the mid 1800s to show that the Midwives did not have that much less training. In many regards many mid wives had more training then doctor for the midwives had been apprenticed to older midwives for many years before they went on their own.

Anyway, the medical community of the early 1800s wanted to take over birth and thus asked the various state legislators to out law abortions except upon the finding of medically necessary . That later clause would give doctors an exclusive right to do abortions for only the doctors could determine medically necessary.

The Medical Community then turn to the religious community for support for this change, the religious community embraced the change, but wanted to restrict medically necessary much more the the Medical Community wanted (i.e. make the burden on the Doctor that the abortion was medically necessary, not on the state that the abortion was not, i.e. put the burden of proof on the doctor performing the abortion that it was medically necessary not on the state to show it was NOT medically necessary).

Anyway, the US Supreme Court did not address WHY the states moved away from the Common Law rule, but that the common law rule had been the rule in all states in 1787 and thus was a right under the ninth amendment that said the Bill of Rights were NOT an exclusive list of rights, but other rights were also preserved (The main attacks on the Bill of Rights in the 1790s when it was adopted, was that it could NOT list all possible rights, and those rights preserved under the Constitution would be viewed as "abandoned" if they were NOT listed in the Bill of Rights, the ninth and tenth were written to address this argument i.e. the Bill of Rights is NOT an exclusive list of Rights protected under the US Constitution).

Where did the Common law get its rule on Abortion? While from the Catholic Church, for the rules set up in Roe vs Wade were the pre 1869 Catholic Rule for abortion. Yes, the Catholic Church decided that since the Medical Community determined its old rules had no basis in science, it had to adopt the then new scientific evidence as to HOW a fetus developed and its abandoned it older rules (There is some evidence that the change also was affected by the lost of the papal states to the then new nation of Italy, forcing Italy to address the issue of abortion and the people who both supported abortion and opposed abortion).

Thus, the issue of the right of a woman to what she does with her body, including having an abortion, has been the basis for the US Supreme Court ruling on abortion. In later decisions the court moved away from the three trimester system used in Roe vs Wade, but have never abandon the theory that it is based on the right of a woman to do with her body as she sees fit.

Side note: The Catholic pre 1869 rule on abortion can be traced back to St Augustine and then back to the rule in use in Ancient Rome, Greece and Judea. Since what happen in development of the fetus was unknown to these ancient people, the rule was a Fetus had no sole till it "Quicken" i.e. the mother could feel the child kick and move in her womb. This occurs in the third trimester and thus no abortion in the third trimester except under very unusual circumstances (Health and life of Mother for example). Most women learned they were pregnant while before their second trimester, thus some restrictions were put on women, but not much in the second trimester for a fetus could become "quicken" early. The first trimester the woman had an absolute right. Now the Catholic Church still view abortion a sin, but it was NOT a mortal sin. It was NOT a violation of the Ten Commandments except in the third trimester. This changed in 1869 when the Church embraced the medical community findings that Quickening was not some sort of change in the fetus, but the result of slow steady change that had continued since birth. Since the scientific community could NOT set an act in the development of the fetus that was NOT part of the constant development (as Quickening had been prior to 1869) of the fetus, conception became the point where a fetus became a human as opposed to Quickening. Notice this change was driven by the Medical community not the religious community, through the religious community took it further then the Medical community wanted it to go.