march 18, 2013, presentation mental health exceptions

7/28/2019 MARCH 18, 2013, PRESENTATION Mental Health Exceptions

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The American Experience with Mental Health Exceptions

Paul Benjamin Linton, Esq.

I appreciate the invitation to discuss the American experience with mental

health exceptions in abortion laws. The question that I will attempt to answer is

whether a mental health exception in an abortion law can be limited to genuine

mental health reasons.

In 1967 the California Legislature enacted the Therapeutic Abortion Act of

1967, which substantially broadened the reasons for which an abortion could be

performed in the State. Prior to the enactment of this law, abortions were allowed

in California, as in almost all other States, only for the purpose of saving the life

of the mother, a rare exception forty-five years ago and even rarer now. The

Therapeutic Abortion Act was based on 230.3 of the Model Penal Code, which

was drafted in 1962 by the American Law Institute, a private organization that

develops model legislation for the States to consider enacting. As drafted, 230.3

would have allowed a physician to perform an abortion if he believed that there

was substantial risk that continuance of the pregnancy would gravely impair

the physical or mental health of the mother, or that the child would be born with

grave physical or mental defect, or that the pregnancy resulted from rape, incest,

or other felonious intercourse. Under the model bill which, again, was drafted in

1962, except in emergencies, such abortions could be performed only in licensed


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hospitals. Prior to the performance of an abortion, at least two physicians, one of

whom could be the physician performing the abortion, had to certify in writing the

circumstances which they believed to justify the abortion.

California and twelve other States enacted abortion laws based on 230.3

of the Model Penal Code between 1967 and 1972, shortly before Roe v. Wade was

decided in January 1973. The California Therapeutic Abortion Act differed from

the Model Penal Code provision in several respects: First, the Act did not allow an

abortion if the child would be born with grave physical or mental defect.

Second, the Act prohibited all abortions, except to save the life of the mother, after

the twentieth week of pregnancy (there was no gestational limit on the reasons for

abortion in the Model Penal Code provision). Third, the abortion had to be

approved by a hospital committee consisting of at least two physicians (or three, if

the abortion was to be performed after the thirteenth week of pregnancy) and their

approval had to be unanimous (if the committee consisted of no more than three

physicians). And, fourth, unique among the laws based on the Model Penal Code,

it attempted to define what would qualify as an abortion because of grave

impairment of the mothers mental health. An abortion for that reason was

allowed under the Act only if it appeared that the pregnant woman suffered from a

mental illness to the extent that [she] is dangerous to herself or to the person or

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property of others or is need in supervision or restraint. Cal. Health & Safety

Code 25954. This definition, again, the only attempt to define narrowly the

scope of a mental health exception in an abortion law, was essentially the same

standard that is used to determine whether a person may be involuntarily

committed because he is a danger to himself or to others, a very strict standard

that, one would think, could not be easily met. Very interestingly, shortly after the

Therapeutic Abortion Act was enacted, it was suggested by some legal

commentators that the standard the Act imposed for mental health abortions was

stricter than that for civil commitment.

In 1972, a four-to-three majority of the California Supreme Court declared

major provisions of the Therapeutic Abortion Act unconstitutional because, in the

view of the majority of the court, several of its key provisions were too vague to

understand. People v. Barksdale, 503 P.2d 257 (Cal. 1972). What is of particular

interest inBarksdale is the courts discussion of the numbers and reasons for

abortions performed in California in 1970. In that year, more than 65,000

abortions were approved by hospital committees and almost 63,000 abortions were

performed. More than 98% of the approvals (63,872) and more than 98% of the

abortions performed (61,572) were for reasons of mental health. Id. at 265.

These astonishing figures perplexed the California Supreme Court. This is what

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the court said:

Serious doubt must exist that such a considerable number of pregnant

women could have been committed to a mental institution. Either

pregnancy carries risks to mental health beyond those ever imagined,or legal writers and members of therapeutic abortion committees, two

groups we must assume to be of at least common intelligence, have

been forced to guess at the meaning of this provision and have

reached radically different interpretations.

Id. at 265.

I would respectfully suggest a third explanation that the physicians

serving on the hospital committees routinely approved abortions for reasons of

mental health because they were determined to approve the abortions, knew that

their approvals were not subject to review by any court or agency and understood

that no other reason could plausibly be invoked to justify the abortion. Indeed,

the court as much as admitted this conclusion, noting that [b]y 1970 committee

members had apparently despaired of comprehending the medical criteria and

approved virtually all applications for reasons of mental (99 percent) and physical

(98.6 percent) health impairment. Id. at 265-66. Keep in mind that, in 1970,

more than 98% ofallabortions approved by the hospital committees and more

than 98% ofallabortions performed were formental, not physical, health reasons.

According to the statistics cited inBarksdale, abortions for reasons of the mothers

physical health (and the other reasons allowed by the Act, rape and incest) could

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not have accounted for even two percent of all abortions.

The California Supreme Courts conclusion that the standard for approving

an abortion for mental health reasons was impermissibly vague cannot be squared

with the fact that that very same standard essentially the standard for civil

commitment is one that has been used in all States, including California, for

many, many decades, all without any suggestion or indication that the standard is

incomprehensible. Moreover, although this is a legal standard, to meet that

standard requires expert medicalopinion, not an expert legalopinion. Thus, the

courts incomprehension is, itself, incomprehensible.

Putting all that to one side, the experience with the California Therapeutic

Abortion Act of 1967 demonstrates, beyond question, that a mental health

exception, even a narrowly drafted one that employs a well-established standard

(the standard for civil commitment) cannot be contained or limited to genuine

mental health reasons. Inevitably, it will become an open door through which

abortion on demand enters society.

Now, I understand that the question in Ireland is not whether a mental

health exception, however drafted, should be enacted, but whether, following the

Irish Supreme Courts decision inAttorney General v. X, an exception for suicidal

ideation should be drafted and enacted into Irish statutory law. I would suggest

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that if a mental health exception, even one employing the narrow standard for civil

commitment, cannot be drafted to prevent abortion on demand, the same applies to

an exception purportedly limited to suicidal ideation. Nothing in the reasoning of

the X case indicates otherwise. Indeed, Chief Justice Finlay stressed that, unlike

the onset of most physical diseases or conditions that might warrant medical

intervention in a pregnancy, suicidal ideation associated with pregnancy may

occur suddenly, without warning, and require an immediate abortion. Here is what

he said (at p. 55):

If a physical condition emanating from a pregnancy occurs in a

mother, it may be that a decision to terminate the pregnancy in order

to save her life can be postponed for a significant period of time in

order to monitor the progress of the physical condition, and that there

are diagnostic warning signs which can readily be relied upon during

such postponement.

In my view, it is common sense that a threat of self-destructionsuch as is outlined in the evidence in this case, which the

psychologist clearly believes to be a very real threat, cannot be

monitored in that sense and that it is almost impossible to prevent

self-destruction in a young girl in the situation in which this

defendant is if she were to decide to carry out her threat of suicide.

In other words, whenever a pregnant woman threatens to commit suicide if

she is not allowed to have an abortion, and can find a therapist to believe her, she

can obtain an immediate abortion, no matter how difficult it might be to predict

what she might do if she were denied the abortion, no matter how weak and self-

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serving the evidence might be that she would, in fact, kill herself and no matter

how speculative the opinion of a therapist might be that she would kill herself. If

the Irish Parliament were to enact a statute embodying the ruling in the X case, it

would not take long for everyone in Ireland to know that a mere threat of

committing suicide (genuine or contrived), combined with the report of a

compliant therapist, would legally suffice to obtain an abortion. Over time, you

would likely experience what California experienced in only three years with the

mental health exception to its Therapeutic Abortion Act, thousands of abortions

being performed without any justification in law or medicine. That may not have

been the intent of the justices in the majority in the X case, at least judged by

their disavowals of abortion on demand, but to suggest that a suicide

exception could be narrowly contained is, frankly, naive. That is apparent not

only from the passage of the Chief Justices opinion quoted above, but also from a

reading of some of the concurring opinions in the X case.

Justice McCarthy, for example, asked whether victims of rape or incest

would be able to obtain an abortion under the courts ruling. Op. at p. 81. Justice

OFlaherty asked, Can it be that a Constitution which requires the State to look at

the economic needs ofmothers is unconcerned for the health and welfare and

happiness of mothers? Op. at 87. He answers his own question: I am certain

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that reading the Constitution as a whole, . . . then the answer is clearly not. A

broad dimension must be given to the Constitution and a narrow or pedantic

approach to its provisions has to be put aside. Does this not suggest an even

broader life-of-the-mother exception? And is it a far step from saying that a

pregnant woman must be allowed to have an abortion if she threatens to kill

herself if she is denied an abortion, to saying that she must be allowed to have an

abortion if not having the abortion will ruin her life? And, more to the point, is

there any difference in the answer sto these questions or are they not the same?

The evidence on the basis of which the court held that the minor would

commit suicide if she were denied an abortion was sketchy, vague and

unpersuasive, as Justice Hederman noted in his partial dissent. Op. at 76. As, I

think, most therapists would agree, trying to predict whether someone who has

threatened to kill herself will actually do so is very, very problematic. Instead of

allowing abortion whenever a pregnant woman threatens to commit suicide, a

better approach would be the one proposed by Justice Hederman:

Suicide threats can be contained. The duration of the

pregnancy is a matter of months and it should not be impossible to

guard against the girl against self-destruction and preserve the life ofthe unborn child at the same time. The choice is between the certain

death of the unborn life and a feared substantial danger of death but

no degree of certainty of the mother by way of self-destruction.

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Op. at 76.

The law does not allow someone to commit an otherwise illegal act merely

because he threatens to commit suicide if he is not allowed to do so. If a pregnant

womans threat of self-destruction is genuine, she should be given the therapeutic

assistance necessary to address the reasons for her suicidal ideation, but that

assistance does not include an abortion. There is no psychiatric or medical

evidence that abortion is ever an appropriate treatment for suicidal ideation.

Indeed, the evidence is to the contrary, i.e., that abortion is associated with

elevated levels of not just suicidal ideation, but suicide itself.

Hard cases that naturally elicit societys sympathy should not be the basis

for carving out exceptions to the scope of the law, most especially the fundamental

constitutional right to life. On any fair and objective reading, the language of

Amendment 8 was never intended to allow abortion because of a threat on the part

of the pregnant woman to kill herself. Accordingly, the decision to the contrary1

in the X case should not be embodied in statute.

The Eighth Amendment to the Constitution of Ireland provides: The State1

acknowledges the right to life of the unborn and, with respect to the equal right to life of the

mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and

vindicate that right.

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march 18, 2013, presentation mental health exceptions

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