2:38 PM 17 Jul 1995
After you left, George asked that a draft of the decision memo be circulated; after the meeting, he said that meant to Rasco, Rovlin, Griffin, and him. It seems to me that the way to go is to recommend that the President reject the bill because (1) it does not inlcude an exception for the health of the mother, and (2) (not stressed as much) because it may apply to abortions that are done prior to the last trimester and prior to viability. It sounds as if what George wants is for the President to take an up-front position that if narrowed in these two ways, he would support it. (We should make clear because George didn't seem to understand it, that such a bill would prevent abortions in cases of fetal deformity.) As we've discussed, I think it would be hard to argue that such a position is unconstitutional (i.e., I think OLC's third argument is weak). The question that the participants in the meeting didn't realy focus on is: what happens if the health exception is included, but the bill continues to apply to pre-viability as well as post-viability abortions? As a legal matter, the question here has to do with whether this an undue burden. A certain answer to this question would require lots of facts we don't know, having to do with the circumstances in which this procedure could (or could not) be replaced by other procedures; my hunch, though, is that the undue burden argument would be a stretch.
8:17 AM 20 Jul 1995
Sorry I didn't get back to you; I was at the Waco hearing all day (and night). I actually think the old. paragraph was better. Here's why. (1) Even under Roe, I do not think courts would have automatically equated fetal deformities with harm to maternal health. (2) The Schroeder bill also does not equate the two. It seems to apply only when fetal deformity itself endangers women's health; perhaps there is a presumption that this will always be the case, but this presumption is not spelled out. (3) Related to the above but more generally, I think in this paragraph you equate the two too much. For some women, all fetal deformities will pose a threat to maternal health; for other women, some will; for other women, none will. I don't think any court, now or before Casey, automatically would have equated the two. What have other people said about the memo generally?