Amicus Curiae Brief — Kristina Box, Commissioner, Indiana Department of Health, et al., Petitioners v. Planned Parenthood of Indiana and Kentucky, Inc.

Supreme Court briefMar 6, 2019

Ask Donna

What actually matters in this document.

Text

No. 18-1019

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------KRISTINA BOX, COMMISSIONER,

INDIANA DEPARTMENT OF HEALTH, et al.,

Petitioners,

PLANNED PARENTHOOD OF

INDIANA AND KENTUCKY, INC.,

Respondent.

-----------------------------------------------------------------On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

-----------------------------------------------------------------AMICUS CURIAE BRIEF

OF TRINITY LEGAL CENTER

IN SUPPORT OF PETITIONERS

-----------------------------------------------------------------LINDA BOSTON SCHLUETER

Counsel of Record

TRINITY LEGAL CENTER

11120 Wurzbach, Suite 206

San Antonio, Texas 78230

210-274-5274

TLC4Linda@aol.com

Counsel for Amicus Curiae

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

CORPORATE DISCLOSURE STATEMENT

Amicus Trinity Legal Center is a nongovernmental corporate entity, and it has no parent corporations

and no publicly held corporations hold 10 percent or

more of their stock.

TABLE OF CONTENTS

Page

CORPORATE DISCLOSURE STATEMENT ......

TABLE OF AUTHORITIES .................................

STATEMENT OF INTEREST OF THE AMICUS

CURIAE ............................................................

SUMMARY OF THE ARGUMENT .....................

ARGUMENT ........................................................

II.

THIS CASE IS CERTWORTHY BECAUSE

THE COURT OF APPEALS MISINTERPRETED ROE V. WADE AND ITS PROGENY AND ONLY THIS COURT CAN

CORRECT THE ERROR ...........................

A. The Court of Appeals Erred in Balancing Not Only the State’s and Woman’s

Interests, But the Abortion Provider’s

Business Interests ...............................

B. The Court of Appeals Erred in Basing

Its Decision on Anecdotal Evidence Instead of Recognizing and Applying the

Well-Established Scientific Evidence

Concerning the Effects of a Woman’s

Decision ...............................................

THIS CASE IS CERTWORTHY BECAUSE

THE COURT OF APPEALS MISAPPLIED

CASEY’S EMPHASIS ON AN INFORMED

DECISION AND WAITING PERIODS ...... 17

iii

TABLE OF CONTENTS – Continued

Page

A. Ultrasounds Prior to Abortion Provide

Women with Accurate, Factual Information That Is Needed to Make an Informed Decision, and Therefore, the

Court of Appeals for the Seventh Circuit Misapplied Casey .......................... 17

B. This Court Has Held That Waiting Periods Are Constitutional, and Therefore, the Court of Appeals Erred ......... 23

CONCLUSION..................................................... 28

TABLE OF AUTHORITIES

Page

CASES

Acuna v. Turkish, 192 N.J. 399, 930 A.2d 416

(2007) .......................................................................19

Barnes v. Moore, 970 F.2d 12 (5th Cir. 1992) .............24

Doe v. Bolton, 410 U.S. 179 (1973) .......................... 4, 12

Fargo Women’s Health Organization v. Schafer,

18 F.3d 526 (8th Cir. 1994) ......................................24

Gonzales v. Carhart, 550 U.S. 124 (2007) .... 5, 11, 20, 22

Karlin v. Foust, 188 F.3d 446 (7th Cir. 1999) .... 24, 26, 27

Planned Parenthood v. Casey, 505 U.S. 833

(1992) ............................................................... passim

Planned Parenthood of Indiana and Kentucky,

Inc. v. Commissioner of the Indiana State

Department of Health, 896 F.3d 809 (7th Cir.

2018) .................................................................. 6, 7, 8

Planned Parenthood, Sioux Falls Clinic v. Miller, 63 F.3d 1452 (8th Cir. 1995)..............................24

Roe v. Wade, 410 U.S. 113 (1973) ........................ passim

Texas Medical Providers v. Lakey, 667 F.3d 570

(5th Cir. 2012).................................................... 22, 23

Utah Women’s Clinic, Inc. v. Leavitt, 844 F. Supp.

1482 (D. Utah 1994), rev’d on other grounds,

75 F.3d 564 (10th Cir. 1995) ....................................24

TABLE OF AUTHORITIES – Continued

Page

Whole Woman’s Health v. Hellerstedt, ___ U.S.

___, 136 S. Ct. 2292, 196 L. Ed. 2d 665 (2016) .........6

Women’s Medical Center v. Bell, 248 F.3d 411

(5th Cir. 2001).................................................... 11, 12

BOOKS

JOHN C. WILLKE & BARBARA H. WILLKE, ABORTION (Hayes Pub. Co. 2003) ............................... 15, 20

OTHER

David C. Reardon, “The After Effects of Abortion,”

available at https://www.abortionfacts.com/

reardon/the-after-effects-of-abortion .....................10

David C. Reardon, et al., Deaths Associated with

Delivery and Abortion Among California

Medicaid Patients: A Record Linkage Study,

S. MED. J. 95:834 (2002) ............................................9

Guttmacher Institute, Counseling and Waiting Periods for Abortion (2019), available at

https://www.guttmacher.org/state-policy/explore/

counseling-and-waiting-periods-abortion.......... 11, 23

J.R. Cougle, et al., Depression Associated with

Abortion and Childbirth: A Long-Term Analysis of the NLSY Cohort, MED. SCI. MONITOR

9(4):CR157 (2003) .....................................................9

Linda L. Schlueter, 40th Anniversary of Roe v.

Wade: Reflections Past, Present and Future, 40

OHIO N. U. L. REV. 105 (2013) .................................24

TABLE OF AUTHORITIES – Continued

Page

Maureen L. Condic, Ph.D., When Does Life

Begin? A Scientific Perspective, Westchester

Institute White Paper (October 2008), available at https://bdfund.org/wp-content/uploads/

2016/05/wi_whitepaper_life_print.pdf....................20

National Right to Life, A Woman’s Right to

Know: Casey-style Informed Consent Laws

(2018), available at https://www.nrlc.org/uploads/

stateleg/WRTKFactSheet.pdf .................................12

National Right to Life, A Window into the Womb:

A Guide to State Laws on Ultrasound (2018),

available at https://www.nrlc.org/uploads/

stateleg/UltrasoundFactsheet.pdf .........................10

National Right to Life, Waiting Periods (2018),

available at https://www.nrlc.org/uploads/

stateleg/WaitingperiodsMAP.pdf ...........................23

Priscilla K. Coleman, Abortion and Mental

Health: Quantitative Synthesis and Analysis

of Research Published, 1995-2009, 199 BRITISH J. PSYCHIATRY 180 (2011).....................................9

Priscilla K. Coleman, Induced Abortion and Increased Risk of Substance Abuse: A Review of

the Evidence, CURRENT WOMEN’S HEALTH ISSUES 1:21 (2005) ........................................................9

Report of the South Dakota Task Force to Study

Abortion (December 2005), available at http://

www.dakotavoice.com/Docs/South%20Dakota%

20Abortion%Task%20Force%20Report.pdf ...... passim

vii

TABLE OF AUTHORITIES – Continued

Page

U.S. Health and Human Services, Strategic Plan

FY 2018 – 2022, Introduction, Organizational

Structure, available at https://www.hhs.gov/

about/strategic-plan/introduction/index.html ......201

WebMD, Prenatal Ultrasound (2018), available

at https://www.webmd.com/baby/ultrasound#1 ......18

We Care Experts, Psychological, Relationship,

and Behavioral Implication of Abortion: Bibliography of Peer-Reviewed Studies, available

at http://www.wecareexperts.org/sites/default/

files/articles/Bibliography%20of%20Peer%20

Reviewed%20Studies%20on%20Psychology%20

of%20Abortion.pdf ....................................................9

Z. Bradshaw & P. Slade, The Effects of Induced

Abortion on Emotional Experiences and Relationships: A Critical Review of the Literature,

CLINICAL PSYCHOL. REV. 23:929 (2003) .....................9

STATEMENT OF INTEREST

OF THE AMICUS CURIAE

Consent to file this amicus brief was given by both

parties. This brief supporting Petitioner was prepared

by counsel for amicus.1

Trinity Legal Center is a nonprofit foundation that

works with women who are considering an abortion to

provide accurate information and educational materials. The Center also represents post-abortive women

who attest to the physical and psychological harm that

abortion causes them.

This case is of great national importance and consequence because it goes to the heart of this Court’s

abortion jurisprudence and recognizes the State’s legitimate governmental interest of requiring full, accurate, and truthful information without creating an

undue burden. The approximately one million women

per year in the United States who have an abortion are

entitled to full, accurate, and truthful information to

exercise their constitutional right to decide whether to

The parties were notified ten days prior to the due date of

this brief of the intention to file. The parties have consented to

the filing of this brief. No counsel for a party authored this brief

in whole or in part, and no counsel or party made a monetary contribution intended to fund the preparation or submission of this

brief. Trinity Legal Center is a nonprofit corporation and is supported through private contributions of donors who have made

the preparation and submission of this brief possible. No person

other than amicus curiae, its counsel, or donors to Trinity Legal

Center made a monetary contribution to its preparation or submission.

abort their unborn child. Due to the physical and psychological consequences for women, this decision has

far-reaching and long-lasting implications.

The heart of this case relies on Planned Parenthood v. Casey where this Court required that a woman

receive truthful and non-misleading information.

When a woman sees her doctor, she expects to get full,

accurate, and truthful information. Requiring an ultrasound is an objective way for a woman to obtain this

information. Failure to give such information prohibits

her from making an informed and knowing exercise

of her constitutional rights. It also puts her at even

greater risk of psychological harm when she later

learns the truth about her unborn child.

------------------------------------------------------------------

SUMMARY OF THE ARGUMENT

This case is certworthy because the Court of Appeals for the Seventh Circuit misinterpreted this

Court’s abortion jurisprudence which balanced the interests of the woman and the state. The court of appeals erred in creating a triangle of interests between

the woman, state, and abortion provider. The abortion

provider’s business interests were given weight which

allowed it to trump the legitimate and important interests of the state in providing for the health and safety

of women. In addition, the court of appeals erred in relying on a few unverified anecdotal stories instead of

the well-established scientific evidence of the psychological effects of abortion. Therefore, this Court should

grant the Petition for Writ of Certiorari and uphold the

state’s legitimate and important interests.

The court of appeals misapplied this Court’s emphasis on an informed decision. An ultrasound provides objective, accurate, and truthful information

about her unborn child upon which the woman can

make an informed decision. False or misleading information impacts a woman’s decision and also puts her

at greater risk of psychological harm when she later

learns the truth about her unborn child. In addition,

this Court has upheld waiting periods which give a

woman the time to weigh all of the facts from the

information she received and make an informed decision. Because the absence of truthful information

increases the risk of psychological problems, this Court

should grant the Petition for Writ of Certiorari and

uphold Indiana’s law to ensure that pregnant women

are given full, accurate, and truthful information

before they exercise their constitutional right to decide.

------------------------------------------------------------------

ARGUMENT

THIS CASE IS CERTWORTHY BECAUSE

THE COURT OF APPEALS MISINTERPRETED ROE V. WADE AND ITS PROGENY

AND ONLY THIS COURT CAN CORRECT

THE ERROR.

A. The Court of Appeals Erred in Balancing Not Only the State’s and Woman’s

Interests, But the Abortion Provider’s

Business Interests.

Because this Court constitutionalized the abortion

issue in Roe v. Wade2 and Doe v. Bolton,3 only it can

correct the lower court’s errors in interpretation and

application. The Court of Appeals for the Seventh Circuit misapplied the undue burden test by considering

the abortion provider’s business interests.

In Roe v. Wade,4 this Court analyzed the interests

of the woman considering an abortion and the interests of the state. It concluded that “the right of personal privacy includes the abortion decision, but that

this right is not unqualified and must be considered

against important state interests in regulation.”5

This ruling was restated in Planned Parenthood v.

Casey6 even though it rejected Roe’s rigid trimester

410 U.S. 113 (1973).

410 U.S. 179 (1973).

410 U.S. 113 (1973).

Id. at 154.

505 U.S. 833 (1992).

framework. This Court emphasized that because the

state has an interest in life throughout pregnancy, it

may take measures to ensure that a woman’s choice is

informed and it may enact regulations to further the

health or safety of a woman seeking an abortion.7 In

creating the undue burden test, the Court stated that

the state could not impose unnecessary health regulations that present a substantial obstacle to a woman

seeking an abortion.8 But it also found that information to help her make the decision and a twentyfour hour waiting period were constitutional.9 Just

because a law “has the incidental effect of making it

more difficult or more expensive to procure an abortion

cannot be enough to invalidate it.”10

In Gonzales v. Carhart,11 this Court again recognized both the woman’s and the state’s interests. The

Court stated that a central premise in Casey was “that

the government has a legitimate and substantial interest in preserving and promoting fetal life. . . .”12

Id. at 846 (stating “ . . . the State has legitimate interests

from the outset of the pregnancy in protecting the health of the

woman and the life of the fetus. . . .”).

Id. at 877.

Id. at 885.

Id. at 874.

550 U.S. 124 (2007).

Id. at 145.

Again, in Whole Woman’s Health v. Hellerstedt,13

this Court balanced the interests of the woman and the

state. Citing Roe, it recognized that the state has a legitimate interest in seeing that an abortion is performed under circumstances that ensure maximum

safety for the woman.14

The court of appeals in this case15 erred in creating

a triangle of interests and not the dual interests of the

woman and the state. Although the court stated that

the State of Indiana had legitimate interests, it ultimately gave greater weight to Planned Parenthood of

Indiana and Kentucky Inc.’s (PPINK) burden as the

abortion provider.

In emphasizing the burden to the abortion provider, the court of appeals misinterpreted, and departed from, this Court’s well-established abortion

jurisprudence. Although the court stated that “[i]n

general, courts do not micromanage an entity’s business decisions,”16 it improperly allowed the district

court to “defer to PPINK’s justifiable business decisions and consider the burdens of the new ultrasound

law within the context of the reality that exists”17 for

PPINK in operating its business.

___ U.S. ___, 136 S. Ct. 2292, 195 L. Ed. 2d 665 (2016).

Id. at 2309.

Planned Parenthood of Indiana and Kentucky, Inc. v.

Commissioner of the Indiana State Department of Health, 896

F.3d 809 (7th Cir. 2018).

Id. at 823.

Id.

The court of appeals considered the following elements of PPINK’s business model:

•

The abortion provider’s “economic concerns;”18

•

The abortion provider’s “staffing decisions;”19

•

The abortion provider’s choices in using

its resources;20

•

The abortion provider became overwhelmed with appointments and scheduling;21 and,

•

Whether the abortion provider could or

would choose to provide each center with

the needed equipment and staff.22

The court of appeals erred in stating that “[c]ourts

must consider the impact of the new ultrasound law

based on the reality of the abortion provider and its

patients. . . .”23 It stated that “neither the State nor

the courts has the authority to rewrite PPINK’s mission and dictate how it must allocate its limited resources.”24

Id.

Id. at 820.

Id. at 823.

Id. at 824.

Id. at 823.

Neither the state nor the appellate court were attempting to redefine the abortion provider’s business

model. But the serious error in the appellate court’s

consideration of the abortion provider’s business interests opened the door for the abortion provider to

thwart the state’s legitimate interest. If the court of

appeals’ opinion is not reversed, abortion providers

may trump the state’s well-recognized legitimate interest in promoting life and the woman’s health and

safety. Under any regulation, the abortion provider

could say it had neither the resources nor staff to follow the law. This would completely distort this Court’s

abortion jurisprudence, and therefore, the Petition for

Writ of Certiorari should be granted and the appellate

court’s opinion reversed.

B. The Court of Appeals Erred in Basing

Its Decision on Anecdotal Evidence Instead of Recognizing and Applying the

Well-Established Scientific Evidence

Concerning the Effects of a Woman’s

Decision.

The Court of Appeals for the Seventh Circuit erred

in its consideration of one piece of anecdotal experience

from the State of Indiana and nine anecdotal and unverified experiences from the abortion provider25 instead of relying on the well-established scientific

evidence. Without any documented or stated support,

Id. at 821-22, 828.

the court of appeals summarily rejected and discredited Dr. Priscilla Coleman who is one of the Nation’s

leading researchers on the effects of abortion. Dr. Coleman has conducted a meta study reviewing twenty-two

of the most reliable, well-documented, and large sample studies on abortion.26 The court of appeals’ reliance

on anecdotal stories instead of reliable studies was error.

Reliable scientific studies27 demonstrate that abortion hurts women psychologically. Abortion is a shortterm “solution” with long-term negative consequences.

Dr. David Reardon, one of the leading experts on

the effects of abortion on women, further demonstrates

See, e.g., Priscilla K. Coleman, Abortion and Mental

Health: Quantitative Synthesis and Analysis of Research Published, 1995-2009, 199 BRITISH J. PSYCHIATRY 180 (2011).

See, e.g., Priscilla K. Coleman, Induced Abortion and Increased Risk of Substance Abuse: A Review of the Evidence, CURRENT WOMEN’S HEALTH ISSUES 1:21, 23 (2005); J.R. Cougle,

et al., Depression Associated with Abortion and Childbirth: A

Long-Term Analysis of the NLSY Cohort, MED. SCI. MONITOR

9(4):CR157 (2003); Z. Bradshaw & P. Slade, The Effects of Induced Abortion on Emotional Experiences and Relationships: A

Critical Review of the Literature, CLINICAL PSYCHOL. REV. 23:92958 (2003); David C. Reardon, et al., Deaths Associated with Delivery and Abortion Among California Medicaid Patients: A Record

Linkage Study, S. MED. J. 95:834 (2002). For an extensive bibliography of peer reviewed studies, see We Care Experts, Psychological, Relationship, and Behavioral Implication of Abortion:

Bibliography of Peer-Reviewed Studies, available at http://www.

wecareexperts.org/sites/default/files/articles/Bibliography%20of

%20Peer%20Reviewed%20Studies%20on%20Psychology%20of %20

Abortion.pdf.

the devastating psychological consequences of abortion. Dr. Reardon states there is a temporary feeling of

relief, but that

Women who have undergone post-abortion

counseling report over 100 major reactions to

abortion. Among the most frequently reported

are: depression, loss of self-esteem, self-destructive behavior, sleep disorders, memory

loss, sexual dysfunction, chronic problems

with relationships, dramatic personality

changes, anxiety attacks, guilt and remorse,

difficulty grieving, increased tendency toward

violence, chronic crying, difficulty concentrating, flashbacks, loss of interest in previously

enjoyed activities and people, and difficulty

bonding with later children.28

It is precisely because of the documented serious

physical and psychological effects of abortion that

the ultrasound and waiting period are so important

in the woman’s decision-making process. State legislatures in twenty-eight states have enacted an ultrasound law.29 Legislatures in twenty-seven states have

enacted waiting periods varying from eighteen to

David C. Reardon, “The After Effects of Abortion,” available at https://www.abortionfacts.com/reardon/the-after-effects-ofabortion (calling abortion a public health issue and listing the

physical and psychological effects of abortion).

National Right to Life, A Window into the Womb: A Guide

to State Laws on Ultrasound (2018), available at https://www.

nrlc.org/uploads/stateleg/UltrasoundFactsheet.pdf.

seventy-two hours.30 If this Court does not grant the

Petition for Writ of Certiorari, potentially the law in

the majority of states could be overturned even though

the state has a legitimate interest as this Court and

the Court of Appeals for the Seventh Circuit recognized.

In addition to the scientific studies, this Court and

lower federal courts have recognized the adverse effects of abortion. This Court stated in Gonzales v. Carhart31 that

Respect for human life finds an ultimate expression in the bond of love the mother has for

her child. . . . Whether to have an abortion requires a difficult and painful moral decision. . . . While we find no reliable data to

measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they

once created and sustained. . . . Severe depression and loss of esteem can follow.32

The abortion decision is “fraught with emotional

consequence.”33 Likewise in Bell,34 the Court of Appeals

for the Fifth Circuit cited testimony that abortion as

Guttmacher Institute, Counseling and Waiting Periods for

Abortion (2019), available at https://www.guttmacher.org/statepolicy/explore/counseling-and-waiting-periods-abortion.

550 U.S. 124 (2007).

Id. at 159.

Gonzales v. Carhart, 550 U.S. 124, 159 (2007).

Women’s Medical Center v. Bell, 248 F.3d 411 (5th Cir.

2001).

practiced is “almost always a negative experience for

the patient. . . .”35

Prior to Roe v. Wade36 and Doe v. Bolton,37 health

issues like abortion were decided by the states where

hearings could be held to determine whether the medical and scientific knowledge are more advanced to

warrant a different legal conclusion. In the forty-six

years since Roe and Doe, legislatures have determined

that there are physical and psychological health risks

to women from abortion.38

In the largest government study since Roe, the

South Dakota Task Force to Study Abortion39 scheduled four full days of hearings. “The Task Force heard

live testimony of approximately fifty-five witnesses, including thirty-two experts, and considered the written

reports and testimony from another fifteen experts”

and the live testimony “was divided almost equally

Id. at 418.

410 U.S. 113 (1973).

410 U.S. 179 (1973).

Since Casey, twenty-eight states including Indiana have

enacted “A Woman’s Right to Know” law and information brochure.

See National Right to Life, A Woman’s Right to Know: Casey-style

Informed Consent Laws (2018), available at https://www.nrlc.org/

uploads/stateleg/WRTKFactSheet.pdf. The purpose of these laws

was for women to know the physical and psychological risks associated with abortion, alternatives to abortion, and scientifically

accurate medical facts about the development of the woman’s unborn child before she makes the decision.

Report of the South Dakota Task Force to Study Abortion

(December 2005), available at http://www.dakotavoice.com/Docs/

South%20Dakota%20Abortion%20Task%20Force%20Report.pdf.

between witnesses who support the position that abortion is harmful to women and should be illegal and

those who think it should be legal.”40 In addition, the

Task Force received approximately 3,500 pages of written materials, studies, reports, and testimony.41 The

Task Force noted that of particular significance were

the affidavits of almost 2,000 post-abortive women who

provided statements about their real life experiences.42

The Task Force stated that “[o]f these post-abortive

women, over 99% of them testified that abortion is destructive of the rights, interests, and health of women

and that abortion should not be legal.”43

After hearing all of the evidence from experts and

post-abortive women, the Task Force stated:

Further, the Task Force finds that the preabortion counseling provided often does not

prepare women who have abortions for the

psychological outcomes they may experience

after their abortions. In addition, women who

receive little or no information about possible

emotional health risks of this procedure may

significantly compromise their mental health

and the quality of their lives for years to come.

Due to the very limited information disclosed

by abortion providers, women are not fully

aware that abortion carries with it the

Id. at 6-7.

Id. at 7.

Id.

Id. (emphasis added).

potential to damage their physical, emotional,

interpersonal, and spiritual well-being.44

The Task Force also addressed the issue of the psychological consequences of terminating the life of the

child. The Task Force stated:

Perhaps worse, the pregnant mother is not

told prior to her abortion that the procedure

will terminate the life of a human being. The

psychological consequences can be devastating when that woman learns, subsequent to

the abortion, that this information was withheld – information that would have resulted

in her declining to submit to an abortion. Her

anger at being deceived and being prevented

from making an informed decision for herself

is exacerbated by her realization that she was

implicated in the killing of her own child in

utero. Aside from the injustice of her being deprived of making her own informed decision

(see Section II-D), the psychological harm of

knowing she killed her child is often devastating.45

In addition, the Task Force found that:

. . . it is simply unrealistic to expect that a

pregnant mother is capable of being involved

in the termination of the life of her own child

without risk of suffering significant psychological trauma and distress. To do so is beyond

the normal, natural, and healthy capability of

Id. at 47 (emphasis added).

Id.

a woman whose natural instincts are to protect and nurture her child.46

The Task Force heard testimony from Dr. Vincent

Rue, Ph.D., who is a psychotherapist, professor, and

was special consultant to then-U.S. Surgeon General

Dr. C. Everett Koop on abortion morbidity. The Task

Force stated: “In 1981, Dr. Rue provided the first clinical evidence of post-abortion trauma, identifying this

psychological condition as ‘Post-Abortion Syndrome’ in

testimony before the U.S. Congress.”47 The Task Force

heard evidence that individuals with Post-Abortion

Syndrome “experience symptoms of avoidance (efforts

to escape from reminders of the event), intrusion (unwanted thoughts, nightmares, and flashbacks related

to the event), and arousal (exaggerated startle reflex,

sleep disturbance, irritability) for a month or more following exposure to a traumatic event.”48 Although for

some women, the initial response is one of relief, many

women later avoid the problem through repression and

denial, usually for years – “5 years is common, 10 or 20

is not unusual.”49

The Task Force found the following mental health

outcomes:

Id. at 47-48.

Id. at 53.

Id. at 44.

JOHN C. WILLKE & BARBARA H. WILLKE, ABORTION 50

(Hayes Pub. Co. 2003).

Based on methodological improvements

characterizing these studies, prior works

indicating that abortion is an emotionally

benign medical procedure for most

women are invalid and little reliance can

be placed upon them;

In all the analyses conducted, women

with a history of abortion were never

found to be at a lower risk for mental

health problems than their peers with no

abortion experience;

Women with a history of induced abortion

are at a significantly higher risk for the

following problems: a) inpatient and outpatient psychiatric claims, particularly

adjustment disorders, bipolar disorder,

depressive psychosis, neurotic depression, and schizophrenia; b) substance use

generally, and specifically during a subsequent pregnancy; and c) clinically significant levels of depression, anxiety, and

parenting difficulties;

When compared to unintended pregnancies carried to term and other forms of

perinatal loss, abortion poses more significant mental health risks; and

Cross-cultural data call into question the

often-voiced view that psychological problems associated with abortion are socially

constructed, as women living in a culture

where abortion is normative and a much

less volatile social issue, have been found

to also suffer psychological effects of abortion.50

Although the Court of Appeals for the Seventh Circuit recognized the state’s important and legitimate interests, it failed to give proper weight to these interests

and improperly considered the abortion provider’s

business interest. Due to serious physical and psychological effects of abortion, this Court should grant the

Petition for Writ of Certiorari and uphold Indiana’s ultrasound and waiting period law.

II.

THIS CASE IS CERTWORTHY BECAUSE

THE COURT OF APPEALS MISAPPLIED

CASEY’S EMPHASIS ON AN INFORMED

DECISION AND WAITING PERIODS.

A. Ultrasounds Prior to Abortion Provide

Women with Accurate, Factual Information That Is Needed to Make an Informed Decision, and Therefore, the

Court of Appeals for the Seventh Circuit Misapplied Casey.

The question posed in this case is whether the

state interfered with a woman’s constitutional right to

decide whether to abort her child by requiring an ultrasound which provides objective, accurate and truthful information on the gestational age of the child, the

Report of the South Dakota Task Force to Study Abortion

42-43 (December 2005), available at http://www.dakotavoice.com/

Docs/South%20Dakota%20Abortion%20Task%20Force%20Report.

pdf.

amniotic sac, placenta, ovaries, and any major anatomical abnormalities or birth defects.51

A woman’s right to make this decision based on

accurate and truthful information is critical because,

as this Court has recognized, an abortion

. . . is an act fraught with consequences for

others; for the woman who must live with the

implications of her decision; for the persons

who perform and assist in the procedure; for

the spouse, family, and society which must

confront the knowledge that these procedures

exist, procedures some deem nothing short of

an act of violence against innocent human life;

and depending on one’s beliefs, for the life or

potential life that is aborted.52

The assumption in Roe v. Wade53 and its progeny54

is that a woman’s choice to abort her child would be

made after consulting with her physician.55 That also

assumes that the advice and counsel of the physician

will be based on sound medical advice concerning the

gestational age of the unborn child, the health risks

associated with an abortion, and the nature of the

medical procedure.56 This Court expected that the

WebMD, Prenatal Ultrasound (2018), available at https://

www.webmd.com/baby/ultrasound#1.

Planned Parenthood v. Casey, 505 U.S. 833, 852 (1992).

410 U.S. 113, 163 (1973).

Planned Parenthood v. Casey, 505 U.S. 833 (1992).

Roe v. Wade, 410 U.S. 113, 163 (1973).

Planned Parenthood v. Casey, 505 U.S. 833, 882 (1992).

physician would give “truthful, non-misleading information.”57

Ultrasounds prior to abortion provide women with

accurate and truthful information which is necessary

to make an informed decision. But that kind of truthful

information has not always been given. For example,

Rosa Acuna, a woman considering an abortion, asked

the abortionist if it was a baby.58 He replied “don’t be

stupid, it’s only blood.”59 This was false information

about the characteristics and development of her

eight-week-old unborn child. Furthermore, if it were

just “blood,” she would not expect the risk of being

rushed to the emergency room due to an “incomplete

abortion” with “parts of the baby left in” her.60 If Rosa

had seen the ultrasound, she would have known that

it was a baby and not just blood.

Roe v. Wade recognized that at a minimum a pregnancy evidences potential life61 – something more than

simply a collection of cells, blood, or body fluids. Now

forty-six years after Roe, through the advancement of

medical technology, it is well-recognized that life begins

Id.

Acuna v. Turkish, 192 N.J. 399, 930 A.2d 416 (2007) (although recognizing the facts, the New Jersey Supreme Court

ultimately found no common law duty requiring a physician to

instruct the woman that the embryo is an “existing human being”). Id. at 418.

Id. at 419.

Id.

Roe v. Wade, 410 U.S. 113, 163 (1973).

at conception.62 This “is not debatable, not questioned.

It is a universally accepted scientific fact.”63

Roe v. Wade and its progeny also recognized the

state’s interest in promoting life.64 The state has an obligation to avoid placing an undue burden on a

woman’s decision; but it has an equally compelling obligation to ensure that the information given to the

woman comports with sound medical judgment, advice

and current medical knowledge to ensure the woman’s

choice is informed.65

See, e.g., U.S. Health and Human Services, Strategic Plan

FY 2018 – 2022, Introduction, Organizational Structure (stating

“HHS accomplishes its mission through programs and initiatives

that cover a wide spectrum of activities, serving and protecting

Americans at every stage of life, from conception”), available at

https://www.hhs.gov/about/strategic-plan/introduction/index.html;

Maureen L. Condic, Ph.D., When Does Life Begin? A Scientific

Perspective, Westchester Institute White Paper (October 2008),

available at https://bdfund.org/wp-content/uploads/2016/05/wi_

whitepaper_life_print.pdf (stating “life of a new human being

commences at a scientifically well-defined moment of conception”); JOHN C. WILLKE & BARBARA H. WILLKE, ABORTION 63 (Hayes

Pub. Co. 2003) (stating “ . . . the beginning of any one human individual’s life, biologically speaking, begins at the completion of

the union of his father’s sperm and his mother’s ovum, a process

called ‘conception,’ ‘fertilization’ or ‘fecundation’. . . .”).

JOHN C. WILLKE & BARBARA H. WILLKE, ABORTION 63

(Hayes Pub. Co. 2003).

See, e.g., Gonzales v. Carhart, 550 U.S. 124 (2007); Planned

Parenthood v. Casey, 505 U.S. 833 (1992); Roe v. Wade, 410 U.S.

113 (1973).

Planned Parenthood v. Casey, 505 U.S. 833, 878 (1992)

(stating “to promote the State’s profound interest in potential life,

throughout pregnancy the State may take measures to ensure

that the woman’s choice is informed . . . ”).

False or misleading information impacts a

woman’s decision on how to exercise her constitutional

right to decide. If the state explicitly or implicitly minimizes the dangers and thereby impacts the woman’s

decision, it is significantly interfering with the

woman’s decision regarding the life within her. This is

certainly true where Rosa Acuna specifically asked if

the life within her was a baby because the question

was the ultimate factor in her decision-making process. This Court recognized that the impact on the fetus would be “relevant, if not dispositive” for most

women.66

Furthermore, Rosa Acuna’s experience is not an

isolated event. Abortionists are not giving women full,

accurate, and truthful information as anticipated by

Roe and Casey. For example, the South Dakota Task

Force concluded that “virtually all of the credible objective evidence” compelled the conclusion that abortions in South Dakota were not informed.67 The Report

stated that the record reflects the following concerning

informed consent: (a) The abortion providers fail to disclose the essential nature of the procedure – that it terminates the life of the woman’s existing child; (b) When

they do discuss the procedure, they provide misleading

information in misleading terms; (c) The abortion providers give misleading information about the psychological and physical risks to the mother, and do not

Id. at 882.

Report of the South Dakota Task Force to Study Abortion

at 37 (December 2005), available at http://www.dakotavoice.com/Docs/

South%20Dakota%20Abortion%20Task%20Force%20Report.pdf.

disclose the direct injury to the child that leads to its

death; (d) The abortion providers assume the women

have made their decisions before they reach the facility; and, (e) The abortion providers place the burden

upon the mothers to discover material facts on their

own.68

Ultrasounds and the fetal heartbeat are “routine

measures in pregnancy medicine today.”69 The Court of

Appeals for the Fifth Circuit stated:

They are viewed as “medically necessary” for

the mother and fetus. Only if one assumes the

conclusion of Appellees’ argument, that pregnancy is a condition to be terminated, can one

assume that such information about the fetus

is medically irrelevant. The point of informed

consent laws is to allow the patient to evaluate her condition and render her best decision

under difficult circumstances. Denying her up

to date medical information is more of an

abuse to her ability to decide than providing

the information. In any event, the Appellees’

argument ignores that Casey and Gonzales, as

noted above, emphasize that the gravity of the

decision may be the subject of informed consent through factual, medical detail, that the

condition of the fetus is relevant, and that

Id.

Texas Medical Providers v. Lakey, 667 F.3d 570, 579 (5th

Cir. 2012).

discouraging abortion is an acceptable effect

of mandated disclosures.70

An ultrasound provides the full and accurate information for a woman to make an informed decision.

At a minimum, this Court should require that full, accurate, and truthful information be given to a woman

as it expected in Casey. Otherwise, a woman’s constitutionally protected right to decide to abort her child is

meaningless.

B. This Court Has Held That Waiting Periods Are Constitutional, and Therefore,

the Court of Appeals Erred.

Waiting periods before a woman decides to have

an abortion are critical to ensuring that she can weigh

all of the facts from the accurate and truthful information that she receives. Twenty-nine states have established waiting periods that vary from eighteen to

seventy-two hours.71

This Court in Casey determined that a requirement for important decisions must be informed, and

therefore, a decision made after a period of reflection

Id. (footnotes omitted).

National Right to Life, Waiting Periods (2018), available

at https://www.nrlc.org/uploads/stateleg/WaitingperiodsMAP.pdf.;

see also Guttmacher Institute, Counseling and Waiting Periods

for Abortion (2019), available at https://www.guttmacher.org/

state-policy/explore/counseling-and-waiting-periods-abortion (recognizing a majority of states but stating twenty-seven states

enacted waiting periods).

and thought was not unreasonable.72 Thus, a waiting

period was not an undue burden on a woman.73 Facial

challenges to a waiting period requirement that are

substantially similar to the one upheld in Casey are

constitutional.74

In upholding the waiting period, this Court in Casey considered various factors of the twenty-four hour

waiting period.75 These factors included whether:

•

It created “any appreciable health risk;”76

•

It caused women to travel distances to

the abortion provider;77

Planned Parenthood v. Casey, 505 U.S. 833, 885 (1992).

Id. See generally Linda L. Schlueter, 40th Anniversary of

Roe v. Wade: Reflections Past, Present and Future, 40 OHIO N. U.

L. REV. 105 (2013).

See, e.g., Karlin v. Foust, 188 F.3d 446, 490 (7th Cir. 1999)

(upholding Wisconsin’s twenty-four hour waiting period); Planned

Parenthood, Sioux Falls Clinic v. Miller, 63 F.3d 1452, 1463-67

(8th Cir. 1995) (upholding South Dakota’s twenty-four hour waiting period that would require one visit to an abortion provider);

Fargo Women’s Health Organization v. Schafer, 18 F.3d 526, 530

(8th Cir. 1994) (upholding similar requirement contained in the

North Dakota statute); Barnes v. Moore, 970 F.2d 12, 15 (5th Cir.

1992) (upholding Mississippi’s twenty-four hour waiting period

that required two trips to an abortion provider); Utah Women’s

Clinic, Inc. v. Leavitt, 844 F. Supp. 1482, 1494 (D. Utah 1994)

(upholding Utah’s twenty-four hour waiting period that required

two trips to an abortion facility), rev’d on other grounds, 75 F.3d

564 (10th Cir. 1995).

Planned Parenthood v. Casey, 505 U.S. 833, 885-87 (1992).

Id. at 885.

Id.

•

It caused a “delay of much more than a

day;”78

•

It would require the woman to “make at

least two visits” to the abortionist;79

•

It might expose women to “harassment

and hostility of anti-abortion protestors;”80

•

It would affect “women who have the fewest financial resources;”81 and,

•

Some women may have “difficulty explaining their whereabouts to husbands,

employers, or others.”82

After considering and analyzing all of these factors, this Court in Casey determined that these factors

“do not demonstrate that the waiting period constitutes an undue burden.”83 The Court said that “ . . . under the undue burden standard a State is permitted to

enact persuasive measures which favor childbirth over

abortion, even if those measures do not further a

health interest. And while the waiting period does not

limit a physician’s discretion, that is not, standing

alone, a reason to invalidate it.”84

Id. at 886.

Id.

Furthermore, even if the burden falls on a particular group of women, that is “a distinct inquiry from

whether it is a substantial obstacle” to that group of

women.85 The Court noted that the district court “did

not conclude that the waiting period is such an obstacle even for the women who are most burdened by it.”86

Therefore, the Court concluded that the twenty-four

hour waiting period did not constitute an undue burden.87

In an earlier opinion, the Court of Appeals for the

Seventh Circuit held that the Wisconsin informed consent law advising of an image and fetal heart tone and

providing a twenty-four hour waiting period was constitutional.88 The court did an extensive review of the

Casey decision and concluded that the arguments by

the plaintiffs were substantially the same as those

raised in Casey and which the Supreme Court subsequently rejected.89 These included the argument that

the twenty-four hour waiting period created a substantial obstacle because there were “increased costs for

travel, lodging, and child care, loss of confidentiality for

women who are closely monitored and controlled by

abusive partners, and delays that are in actuality

longer than twenty-four hours because of the limited

Id. at 887.

Id.

Karlin v. Foust, 188 F.3d 446, 491 (7th Cir. 1999).

Id. at 483.

number of physicians performing abortions in Wisconsin.”90 The court found that “the hardships of which the

plaintiffs complained were generally no different than

those the Court in Casey held did not amount to an undue burden,”91 and, therefore, constitutional.

In the present case, the Court of Appeals for the

Seventh Circuit reviewed all of the Casey factors, but

erred in finding that they caused an undue burden.

This case is similar to both Karlin and Casey, and

therefore, the court of appeals erred. If this Court does

not reverse the opinion, it will in essence contradict

and undermine Casey. Such a ruling would disturb this

Court’s long-standing abortion jurisprudence and give

the abortion provider the ability to assert its own business interests which have never been a factor. As discussed above, it would allow the abortion provider’s

business interests to trump the legitimate interests of

the state in virtually any case. Furthermore, if under

the court of appeals’ rationale that each state could assess various factors and conditions within the state to

determine that there was an undue burden, then there

would be a lack of stability and consistency of the law.

This would also be inappropriate and very detrimental

to this Court’s abortion jurisprudence and its application by lower courts.

------------------------------------------------------------------

Id.

Id. at 486.

CONCLUSION

Therefore, the amicus urges this Court to grant

the Petition for Writ of Certiorari and uphold the State

of Indiana’s legitimate interests.

Respectfully submitted,

LINDA BOSTON SCHLUETER

Counsel for Amicus Curiae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.