Amicus Curiae Brief — Scott Harris, in His Official Capacity as State Health Officer, et al., Petitioners v. West Alabama Women's Center, et al.

Supreme Court briefFeb 1, 2019

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No. 18-837

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In The

Supreme Court of the United States

-----------------------------------------------------------------SCOTT HARRIS, ET AL.,

Petitioners,

WEST ALABAMA WOMEN’S CENTER, ET AL.,

Respondents.

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

To The United States Court Of Appeals

For The Eleventh 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

210-697-8202

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 AMICI

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

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

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

THE PETITION FOR WRIT OF CERTIORARI SHOULD BE GRANTED BECAUSE

THE STATE HAS A LEGITIMATE INTEREST IN BANNING A GRUESOME,

BRUTAL, AND INHUMANE FORM OF

ABORTION, AND THEREFORE, THE

BAN SHOULD BE UPHELD ....................

A. Dismemberment Abortion Is a Gruesome Form of Abortion as This Court

Has Stated, and Therefore, the State

Has a Legitimate Interest in Banning

It ..........................................................

B. In a Civilized Nation, the State Has a

Legitimate Interest in Protecting Human Beings from Gruesome, Cruel,

and Inhumane Treatment When They

Are Put to Death ................................. 12

iii

TABLE OF CONTENTS – Continued

Page

II.

THIS COURT SHOULD RECOGNIZE

AND PRESERVE THE HUMANITY OF

ALL CITIZENS AND PARTICULARLY

THE UNBORN WHO ARE THE MOST

HELPLESS AND VULNERABLE IN OUR

SOCIETY ................................................... 18

CONCLUSION..................................................... 22

TABLE OF AUTHORITIES

Page

CASES

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

(2007) ................................................................. 11, 20

Alabama Women’s Center v. Williamson, 900

F.3d 1319 (2018) ........................................................7

Estelle v. Gamble, 429 U.S. 97 (1976) ................... 14, 16

Furman v. Georgia, 408 U.S. 238 (1972) ....................15

Glass v. Louisiana, 471 U.S. 1080 (1985) ....... 14, 16, 17

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

Louisiana ex rel. Francis v. Resweber, 329 U.S.

459 (1947) ................................................................14

Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) .............. 6, 8, 10, 13

Roe v. Wade, 410 U.S. 113 (1973) .......... 3, 12, 13, 19, 20

Rochin v. People of California, 342 U.S. 165

(1952) .......................................................................14

Stenberg v. Carhart, 530 U.S. 914 (2000) ... 4, 5, 8, 9, 19

Tropp v. Dulles, 356 U.S. 86 (1958).............................14

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

___, 136 S. Ct. 2292, 195 L. Ed. 2d 665 (2016) ..... 8, 9

Wilkerson v. Utah, 99 U.S. 130 (1878) .................. 14, 15

CONSTITUTION

U.S. Const. amend. VIII ........................ 3, 14, 15, 16, 17

TABLE OF AUTHORITIES – Continued

Page

STATUTES

ALA. CODE § 26-23A-1 et seq. .................................. 6, 13

ALA. CODE § 26-23G-2 ............................................... 5, 9

ALA. CODE § 26-23F-2(a)(4) .........................................21

ARK. CODE ANN. § 20-16-1801 et seq. ............................5

FLA. STAT. ANN. § 390.0111.........................................13

GA. CODE ANN. § 31-9A-1 et seq. .................................13

IDAHO CODE ANN. § 18-609..........................................13

IND. CODE ANN. § 16-34-2-1.1 .....................................13

KAN. STAT. ANN. § 65-6709..........................................13

KAN. STAT. ANN. § 65-6743............................................5

KY. REV. STAT. § 311.710 et seq.....................................5

KY. REV. STAT. § 311.720 et seq...................................13

LA. REV. STAT. § 40:1061.1.1 ................................... 5, 13

MASS. GEN. LAWS ch. 111, § 70E .................................13

MICH. COMP. LAWS § 333.17014 et seq. .......................13

MINN. STAT. ANN. § 145.4241 et seq. ...........................13

MISS. CODE ANN. § 41-41-33 .......................................13

MISS. CODE ANN. §§ 41-41-151 to 41-41-169 ................5

MO. REV. STAT. § 188.027............................................13

MONT. CODE ANN. § 50-20-3 et seq. .............................13

NEB. REV. STAT. ANN. § 28-327 et seq. ........................13

N.C. GEN. STAT. ANN. § 90-21-80 et seq. .....................13

TABLE OF AUTHORITIES – Continued

Page

OHIO REV. CODE ANN. § 2317.56 .................................13

OKLA. STAT. ANN. tit. 63, § 1-738.1A et seq. ................13

OKLA. STAT. tit. 63, § 1-737.7 et seq. .............................5

N.D. CENT. CODE § 14-02.1-01 ....................................13

18 PA. CONS. STAT. ANN. § 3203 et seq. .......................13

S.C. CODE ANN. § 44-41-310 et seq. .............................13

S.D. CODIFIED LAWS § 34-23A-10.1 et seq. ..................13

TEX. HEALTH & SAFETY CODE ANN. § 171.012 ............14

TEX. HEALTH & SAFETY CODE § 171.151 et seq. ............5

UTAH CODE ANN. § 76-7-305 et seq. ............................14

VA. CODE ANN. § 18.2-76 .............................................14

W. VA. CODE ANN. § 16- 2I-1 et seq. ............................14

W. VA. CODE § 16-2O-1 ..................................................5

WIS. STAT. ANN. § 253.10 ............................................14

OTHER AUTHORITIES

Annotation, Validity of State “Informed Consent” Statutes By Which Providers of Abortion

Are Required to Provide Patient Seeking Abortion with Certain Information, 119 A.L.R.5th

315 (2004) ................................................................14

vii

TABLE OF AUTHORITIES – Continued

Page

Alabama Department of Public Health, Did You

Know, available at http://adph.org/HEALTH

CAREFACILITIES/assets/DidYouKnowBooklet.

pdf ............................................................................14

Matthew Clark, Mother Teresa’s Defense of the

Unborn at the U.S. Supreme Court, available

at https://aclj.org/pro-life/mother-teresa-defenseunborn-us-supreme-court........................................19

DECLARATION OF INDEPENDENCE, para. 2 (U.S.

1776) .......................................................................... 18

Guttmacher Institute, Second-Trimester Abortions

Concentrated Among Certain Groups of Women,

available at https://www.guttmacher.org/

news-release/2011/second-trimester-abortionsconcentrated-among-certain-groups-women

(2011) ..................................................................... 1, 2

William J. Larsen, Human Embryology (2d ed.

New York: Churchill Livingstone, 1997)...................12

Dr. Anthony Levatino, 2nd Trimester Abortion

Procedure, available at https://www.youtube.

com/watch?v=ESqdmQFTNhE ............................. 5, 6

Keith L. Moore & T.V.N. Persaud, the Developing Human: Clinically Oriented Embryology

(6th ed. Only, Philadelphia: W.B. Saunders

Co., 1998) .................................................................12

Wyatt Redd, How Being Hanged, Drawn, and

Quartered Became the Most Brutal Punishment

in History (2018), available at https://allthats

interesting.com/hanged-drawn-quartered ....... 17, 18

viii

TABLE OF AUTHORITIES – Continued

Page

Report of the South Dakota Task Force to Study

Abortion (Dec. 2005), available at http://www.

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

Task%Force%20Report.pdf ............................... 13, 14

Ronan O’Rahilly & Fabiola Muller, Human Embryology & Teratologyat (3d ed. New York,

2001) ........................................................................12

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

Wade: Reflections Past, Present and Future, 40

OHIO N. L. REV. 105(2013) ......................................19

John C. Wilke & Barbara H. Wilke, Abortion

(Hayes Pub. Co. 2003) .............................................13

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 amici.1

This case is of great national importance and

consequence because it goes to the heart of this Court’s

abortion jurisprudence and recognizing the State’s

legitimate governmental interest without creating an

undue burden. This case is certiorari worthy because

Alabama is one of ten states that have enacted the

dismemberment abortion ban with conflicting results.

Thus, there is a conflict within the jurisdictions. In

addition, certiorari should be granted to resolve the

conflicting jurisprudence in this Court’s cases of

Hellerstadt, Gonzales, and Stenberg and to protect the

humanity of human life.

Ten percent of the abortions in the United States

are second trimester abortions.2 According to a recent

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, their counsel, or donors to Trinity Legal

Center made a monetary contribution to its preparation or submission.

Guttmacher Institute, Second-Trimester Abortions Concentrated Among Certain Groups of Women, available at https://

report, certain groups of women, such as those with

lower educational levels, black women, and teenagers,

are overrepresented among second-trimester abortion

patients.3 These are the most vulnerable women in our

society who should be protected and given truthful and

non-misleading information about the D&E procedure.

As this Court has recognized, there are physical and

psychological consequences for post-abortive women,

and therefore, this decision has far-reaching and longlasting implications.

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

SUMMARY OF THE ARGUMENT

The Petition for Writ of Certiorari should be

granted because Alabama has a legitimate interest in

banning a gruesome, brutal, and inhumane form of

abortion. Ten states have banned dismemberment

abortion in the second trimester due to this gruesome

method. Alabama’s law comports with this Court’s

abortion pronouncements because it clearly describes

the D&E procedure to be banned, provides an exception to prevent serious health risks to the mother, and

does not create an undue burden because the woman

can still have an abortion and have that specific

method if the unborn child is not living. Alabama’s dismemberment law is akin in both law and principle to

www.guttmacher.org/news-release/2011/second-trimester-abortionsconcentrated-among-certain-groups-women (2011).

Id.

this Court’s decision in Gonzales, and therefore, the

Act should be upheld.

In a civilized nation, the state has a legitimate interest in protecting human beings from such a gruesome, cruel, and inhumane treatment when they are

put to death. By analogy, the Eighth Amendment prohibits prisoners from cruel and inhumane treatment

such as quartering where the person is torn apart. Neither prisoners nor innocent unborn children should be

treated in such a manner. The dismemberment law

should be upheld because Alabama sought to respect a

woman’s choice while protecting the dignity and humanity of her unborn child.

II.

From the foundation of this country, there has

been a respect for life. But what was known in principle has now been proven in science. Since Roe, there

has been an explosion of medical and scientific

knowledge regarding the humanity of the unborn

child. Through the development of ultrasound technology, a woman can see the living and growing child

within her womb. Alabama has a legitimate state interest in treating the living unborn child in a humane

and dignified manner. The Alabama Legislature correctly stated that the dignity and value of life continues to be a public policy of the highest order. The

Petition for Writ of Certiorari should be granted and

the dismemberment abortion law upheld.

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

ARGUMENT

THE PETITION FOR WRIT OF CERTIORARI SHOULD BE GRANTED BECAUSE

THE STATE HAS A LEGITIMATE INTEREST IN BANNING A GRUESOME, BRUTAL,

AND INHUMANE FORM OF ABORTION,

AND THEREFORE, THE BAN SHOULD BE

UPHELD.

A. Dismemberment Abortion Is a Gruesome

Form of Abortion as This Court Has

Stated, and Therefore, the State Has a

Legitimate Interest in Banning It.

This Court has acknowledged the controversial

nature of the abortion issue.4 Because life begins at

conception, millions of Americans believe that “abortion is akin to causing the death of an innocent child

. . . ”5 This Court has also recognized that millions of

Americans “recoil at the thought of a law that would

permit it.”6 This can particularly be said concerning

dismemberment abortion where the “living unborn

Stenberg v. Carhart, 530 U.S. 914, 920 (2000); see id. at 947

(O’Connor, J., concurring) (stating “The issue of abortion is one of

the most contentious and controversial in contemporary American society”).

Id.

Id. Justice Scalia described it as “so horrible that the most

clinical description of it evokes a shudder of revulsion.” Id. at 953

(Scalia, J., dissenting).

child”7 is killed by tearing it apart limb by limb.8 At the

conclusion of the D&E abortion, the abortionist is left

with “a tray full of pieces.”9 Because this is a gruesome

and brutal death for the living unborn child, the state

has a legitimate interest in banning this method of

abortion.

Ten states have banned dismemberment abortions.10 In 2016, the Alabama Legislature banned this

gruesome and brutal type of abortion that is used in

the second trimester of pregnancy.11 Alabama has a

history of protecting the physical and psychological

health of women and respecting their living unborn

This Court repeatedly used the phrase “living unborn child”

throughout the opinions in Stenberg v. Carhart.

Although the majority in Stenberg discuss the D&E procedure in a very clinical manner, Justice Kennedy in his dissent

realistically describes the procedure using the evidence from

abortionist Carhart’s own testimony. Stenberg v. Carhart, 530

U.S. 914, 958-59 (2000) (Kennedy, J., dissenting). See generally Dr.

Anthony Levatino, 2nd Trimester Abortion Procedure, available at

https://www.youtube.com/watch?v=ESqdmQFTNhE (demonstrating the procedure and the tray of pieces that has to be counted).

Stenberg v. Carhart, 530 U.S. 914, 959 (2000) (Kennedy, J.,

dissenting).

ALA. CODE § 26-23G-2; ARK. CODE ANN. § 20-16-1801 et

seq.; KAN. STAT. ANN. § 65-6743; KY. REV. STAT. § 311.710 et seq.;

LA. REV. STAT. § 40:1061.1.1; MISS. CODE ANN. §§ 41-41-151 to

41-41-169; OKLA. STAT. tit. 63 § 1-737.7 et seq.; TEX. HEALTH &

SAFETY CODE § 171.151 et seq.; W. VA. CODE § 16-2O-1.

ALA. CODE § 26-23G-2. Justices Stevens and Ginsburg in

their concurring opinion in Stenberg recognized the “gruesome

nature of late-term abortion procedures.” Stenberg v. Carhart,

530 U.S. 914, 946 (2000) (Stevens, J., concurring and Ginsburg,

J., joins concurring).

child.12 The dismemberment law was simply another

step in that protection due to the serious physical risk

factors to the woman such as uterine perforation, cervical lacerations, infections, hemorrhage, maternal

death, and future pregnancy complications.13

Alabama’s law comports with this Court’s pronouncements in Casey by clearly describing the procedure that is banned, providing for an exception to

prevent serious health risks to the woman, and not creating an undue burden.14 The procedure is only banned

while there is a living unborn child and not after the

death of the unborn child. This does not create an undue burden on the woman because she can have the

D&E method during her second trimester if the unborn

child is not alive, and thus, it does not limit her ability

to have an abortion.

Based on this Court’s abortion jurisprudence, the

court of appeals correctly recognized at least three

For example, ALA. CODE § 26-23A-2 concerning a Woman’s

Right to Know Act was enacted in 2002. Legislative findings state:

“(1) It is essential to the psychological and physical well-being of

a woman considering an abortion that she receive complete and

accurate information on her alternatives” and “(3) The decision to

abort is an important, and often a stressful one, and it is desirable

and imperative that it be made with full knowledge of its nature

and consequences. The medical, emotional, and psychological consequences of an abortion are serious and can be lasting or life

threatening.”

Dr. Levatino describes these risks. See Dr. Anthony Levatino, 2nd Trimester Abortion Procedure, available at https://www.

youtube.com/watch?v=ESqdmQFTNhE.

See Planned Parenthood of Southeastern Pennsylvania v.

Casey, 505 U.S. 833 (1992).

legitimate interests that the State of Alabama has to

prevent a living unborn child from being dismembered.15 First, the State may use its regulatory authority to show a profound respect for the life within the

woman.16 Second, the State may regulate a “brutal and

inhumane procedure” to avoid the coarsening of society

to the humanity of newborns and all vulnerable and

innocent human life.17 Third, the State may enact laws

to protect the integrity of the medical profession and

the health and well-being of medical practitioners.18 It

correctly concluded that “[d]ismemberment abortions

exact emotional and psychological harm on at least

some of those who participate in the procedure or are

present during it.”19

In spite of these legitimate state interests, the

court of appeals said it was compelled to invalidate the

Act because “there is constitutional law and then there

is the aberration of constitutional law relating to abortion,” and as a lower federal court it had to apply the

“aberration.”20 By granting the Petition for Writ of Certiorari, this Court has the opportunity to correct the

aberration and restore the State’s right to protect

Alabama Women’s Center v. Williamson, 900 F.3d 1319,

1320 (2018).

Id.

Id. at 1314.

women and their living unborn children from a very

gruesome, brutal, cruel, and inhumane death.

This case can be distinguished from Stenberg v.

Carhart21 because the statutory flaws that this Court

found in Stenberg are not present in this case. This

Court held the Nebraska statute unconstitutional because it applied to both the D&E and D&X procedures,

lacked any exception to preserve the health of the

mother, and created an undue burden on a woman.22 In

contrast, the Alabama dismemberment statute applies

only to the D&E dismemberment method of a living

unborn child. It also has an exception to preserve the

health of the mother from serious health risks. It does

not create an undue burden because the woman can

still have an abortion in the second trimester and the

D&E method can be used if the unborn child is not living.

In determining whether there has been an undue

burden, the Court should follow the Casey-Gonzales

formulation of that test and reject the reformulation of

it in Hellerstedt. In Hellerstedt,23 it did so in three ways.

First, the Court superimposed a balancing test24 to

weigh benefits and the burden which was unnecessary

Stenberg v. Carhart, 530 U.S. 914 (2000).

Id. at 930.

Whole Woman’s Health v. Hellerstedt, ___ U.S. ___, 136

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

Id. at 2309.

and rewrites and further complicates the standard.25

Second, it rejected the rational basis to act standard

for a strict review unlike prior cases.26 Third, the Court

stated that courts were to “consider whether any burden imposed on abortion access is ‘undue’.”27 Such a

standard would prohibit the state from exercising its

legitimate interests to protect women and their living

unborn child. This would be unacceptable in any case,

but particularly in a dismemberment case where there

is a gruesome and brutal death of the unborn child.

Alabama’s dismemberment Act is akin in both law

and principle to this Court’s decision in Gonzales, and

therefore, the Act should be upheld. Justice Kennedy

contrasted the Stenberg statute and found that in Gonzales the Act was more specific concerning its application and coverage.28 In a similar way, the Alabama Act

specifically describes the method to be banned and its

application and coverage.29

Justice Thomas is critical of this rewrite because it “transform the under-burden test to something much more akin to strict

scrutiny.” Id. at 1234 (Thomas, J., dissenting).

For example, in Gonzales this Court stated: “Where it has

a rational basis to act, and it does not impose an undue burden,

the State may use its regulatory power to bar certain procedures

and substitute others, all in further of its legitimate interest in

regulating the medical profession in order to promote respect for

life including life of the unborn.” Gonzales v. Carhart, 550 U.S.

124, 158 (2007).

Whole Woman’s Health v. Hellerstedt, ___ U.S. ___, 136

S. Ct. 2292, 2310, 195 L. Ed. 2d 665 (2016) (emphasis added).

Gonzales v. Carhart, 550 U.S. 124, 133 (2007).

ALA. CODE § 26-23G-2(3).

After describing in detail the various methods for

second trimester abortions, this Court recognized that

the Act “is a variation of this standard D&E method.”30

Likewise, the Alabama Act is a slight variation of the

method because of the gestational age of the living unborn child. This variance in degree is actually as gruesome and brutal as the D&X partial birth abortion

because the living unborn child is torn apart in pieces

while the child is still alive and its heart is beating.

This makes people in a civilized nation “recoil” from

such a gruesome procedure.

In Gonzales, the Court recognized and discussed

abortion methods besides the D&E method.31 Alabama

is not banning abortion in the second trimester; it is

merely seeking a more humane method of abortion

that would not be gruesome and brutal. This is a legitimate interest of the State. As this Court recognized in

Gonzales, “the State has legitimate interests from the

outset of the pregnancy in protecting the health of the

woman and the life of the fetus. . . .”32 It recognized

that the premise central to Casey33 was that the government has a legitimate and substantial interest in

preserving and promoting fetal life.”34

Gonzales v. Carhart, 550 U.S. 124, 136 (2007).

Id. at 140.

Id. at 145 (quoting Planned Parenthood of Southeastern

Pennsylvania v. Casey, 505 U.S. 833, 846 (1992)).

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

Gonzales v. Carhart, 550 U.S. 124, 145 (2007).

This Court has also stated that the abortion decision is “so fraught with emotional consequence some

doctors may prefer not to disclose precise details of the

means that will be used. . . .”35 Yet, that emotional

trauma is even greater when later she learns the details of the procedure or the nature of the abortion.36

Congress and this Court have recognized, approving such a brutal and inhumane procedure will further

coarsen society to the humanity of the unborn child

as well as the vulnerable and innocent human.37 In so

doing, it will be increasingly difficult to protect life.38

Just as the partial birth abortion ban expressed respect for the dignity of human life, so the Alabama dismemberment abortion law also respects the dignity of

the living unborn child and protects the child from a

gruesome and brutal death. The Amicus urges this

Court to grant the Petition for Writ of Certiorari and

reverse the decision of the court of appeals.

Id. at 159.

For example, in Acuna v. Turkish, 192 N.J. 399, 930 A.2d

416 (2007), Rosa Acuna was seven weeks pregnant and asked if it

was a baby. Turkish replied “don’t be stupid, it’s only blood.” Upon

learning the truth concerning the development of her baby and

that parts of the baby were left in her, she suffered severe emotional and psychological trauma, which led to the development of

acute post-traumatic stress disorder, obsessive compulsive disorder, major clinical depression and psychosexual dysfunction. Id.

Gonzales v. Carhart, 550 U.S. 124, 157 (2007) (citing Congressional Findings (14)(N)).

Id.

B. In a Civilized Nation, the State Has a

Legitimate Interest in Protecting Human Beings from Gruesome, Cruel, and

Inhumane Treatment When They Are

Put to Death.

In Roe v. Wade, the State of Texas argued that life

begins at conception, and therefore, the State has a

compelling interest in protecting life from and after

conception.39 This Court said that it did not need to resolve the difficult question of when life begins,40 reasoning that when “those trained in the respective

disciplines of medicine, philosophy, and theology are

unable to arrive at any consensus, the judiciary, at this

point in the development of man’s knowledge, is not in

a position to speculate as to the answer.”41

Now forty-six years later, objective scientific evidence establishes with certainty when life begins.42

Roe v. Wade, 410 U.S. 113, 159 (1973).

Id.

The leading textbooks also teach the scientific fact of when

life begins. See, e.g., William J. Larsen, Human Embryology at 1

(2d ed. New York: Churchill Livingstone, 1997) (“ . . . [W]e begin

our description of the developing human with the formation and

differentiation of the male and female sex cells or gametes, which

will unite at fertilization to initiate the embryonic development of

a new individual.”); Keith L. Moore & T.V.N. Persaud, the Developing Human: Clinically Oriented Embryology at 34 (6th ed.

Only, Philadelphia: W.B. Saunders Co., 1998) (“Human development begins when a oocyte is fertilized.”); Ronan O’Rahilly & Fabiola Muller, Human Embryology & Teratology at 88 (3d ed. New

York, 2001) (“Just as postnatal age begins at birth, prenatal age

begins at fertilization.”).

This is a scientific and biological fact and not a legal or

moral judgment. When a human ovum is fertilized by

a human sperm, a biological life begins.43 Thus, scientific evidence confirms that life begins at conception.44

Thanks to ultrasound technology, pictures of gestational development are available. Subsequent to this

Court’s ruling in Casey, states enacted “A Woman’s

Right to Know” laws45 which provided this factual

John C. Wilke & Barbara H. Wilke, 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. . . .’ ”).

In the largest government study since Roe, the South Dakota Task Force held extensive hearings and heard from medical

and scientific experts. The Task Force Report stated that “[i]t can

no longer be doubted that the unborn child from the moment of

conception is a whole separate human being.” Report of the South

Dakota Task Force to Study Abortion 10 (Dec. 2005), available at

http://www.dakotavoice.com/Docs/South%20Dakota%20Task%

Force%20Report.pdf.

See, e.g., Alabama: ALA. CODE § 26-23A-1 et seq.; Florida:

FLA. STAT. ANN. § 390.0111; Georgia: GA. CODE ANN. § 31-9A-1

et seq.; Idaho: IDAHO CODE ANN. § 18-609; Indiana: IND. CODE

ANN. § 16-34-2-1.1; Kansas: KAN. STAT. ANN. § 65-6709; Kentucky: KY. REV. STAT. ANN. § 311.720 et seq.; Louisiana: LA.

REV. STAT. ANN. § 40:1061; Massachusetts: MASS. GEN. LAWS

ch. 111, § 70E; Michigan: MICH. COMP. LAWS § 333.17014 et seq.;

Minnesota: MINN. STAT. ANN. § 145.4241 et seq.; Mississippi:

MISS. CODE ANN. § 41-41-33; Missouri: MO. REV. STAT.

§ 188.027; Montana: MONT. CODE ANN. § 50-20-3 et seq.; Nebraska: NEB. REV. STAT. ANN. § 28-327 et seq.; North Carolina:

N.C. GEN. STAT. ANN. § 90-21-80 et seq.; North Dakota: N.D.

CENT. CODE § 14-02.1-01; Ohio: OHIO REV. CODE ANN. § 2317.56;

Oklahoma: OKLA. STAT. ANN. tit. 63, § 1-738.1A et seq.; Pennsylvania: 18 PA. CONS. STAT. ANN. § 3203 et seq.; South Carolina: S.C. CODE ANN. § 44-41-310 et seq.; South Dakota: S.D.

scientific evidence of the development of the unborn

child.46 It has also been scientifically shown that the

unborn child feels pain at an early age, possibly eight

weeks, and that it is standard medical operational procedure to anesthetize the child.47

The societal question is “how do we treat human

beings in terminating their lives?” This issue has been

more fully developed in the context of capital punishment cases where the Constitution48 and this Court’s

jurisprudence49 has made it clear that society does not

CODIFIED LAWS § 34-23A-10.1 et seq.; Texas: TEX. HEALTH & SAFETY CODE ANN. § 171.012; Utah: UTAH CODE ANN. § 76-7-305 et

seq.; Virginia: VA. CODE ANN. § 18.2-76; West Virginia: W. VA.

CODE ANN. § 16-2I-1 et seq.; Wisconsin: WIS. STAT. ANN.

§ 253.10. See generally Annotation, Validity of State “Informed

Consent” Statutes by Which Providers of Abortion Are Required to

Provide Patient Seeking Abortion with Certain Information, 119

A.L.R.5th 315 (2004).

Similar to other states, Alabama has a woman’s right to

know booklet that explains “the developmental characteristics of

an unborn child from conception until birth; abortion methods

and risks; and other resources that are available to women facing

a pregnancy.” See Alabama Department of Public Health, Did You

Know, available at http://adph.org/HEALTHCAREFACILITIES/

assets/DidYouKnowBooklet.pdf.

Report of the South Dakota Task Force to Study Abortion

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

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

U.S. Const. amend. VIII (prohibiting “cruel and unusual

punishments” including cruel forms of executions).

See, e.g., Glass v. Louisiana, 471 U.S. 1080 (1985); Estelle

v. Gamble, 429 U.S. 97 (1976); Tropp v. Dulles, 356 U.S. 86 (1958);

Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947);

Wilkerson v. Utah, 99 U.S. 130 (1878). Cf. Rochin v. People of

permit barbarism where a life is to be terminated. By

analogy, that jurisprudence helps in this case.

In Wilkerson,50 a man was found guilty of premeditated first-degree murder and was sentenced to be

publicly shot.51 This Court stated that it is the duty of

the court to follow the statute concerning the mode of

executing the sentence unless the punishment was

cruel and unusual within the meaning of the Eighth

Amendment.52 Unlike being embowelled alive, quartered, or burned alive which are atrocities, the shooting

was upheld.53

The Eighth Amendment54 itself does not define or

give examples of cruel and unusual punishment. It

merely states that cruel and unusual punishment

shall not be inflicted. It also does not discuss how to

determine if a particular punishment is cruel and unusual. But in Furman,55 Justice Brennan stated: “The

primary principle is that a punishment must not be so

severe as to be degrading to the dignity of human beings. Pain, certainly, may be a factor in the judgment.”

California, 342 U.S. 165, 172 (1952) (stating due process requires

that conduct must not “shock the conscience”).

Wilkerson v. Utah, 99 U.S. 130 (1878).

Id.

Id. at 136-37.

Id. at 135.

U.S. Const. amend. VIII.

Furman v. Georgia, 408 U.S. 238, 271 (1972) (Brennan, J.,

concurring).

In Estelle,56 this Court assessed whether failing

to provide adequate medical care would be tantamount

to deliberate indifference to the prisoner’s serious

illness or injury would constitute cruel and unusual

punishment. The Court stated that the Eighth Amendment proscribes more than “physically barbarous punishments”; it embodies “broad and idealistic concepts

of dignity, civilized standards, humanity, and decency

. . . ” and does not “involve the unnecessary and wanton infliction of pain.”57 Therefore, the Court concluded

that “deliberate indifference to serious medical needs

of prisoners constitutes the ‘unnecessary and wanton

infliction of pain’.”58

In Glass,59 the Justices who dissented from the denial of certiorari stated that electrocution does not

comport with “standards of human dignity” and “is a

cruel and barbaric method of extinguishing a human

life.” Civilized standards require physical violence during execution is minimized irrespective of the pain it

might inflict.60 But the Justices recognized that electrocution causes unspeakable pain and suffering.61

They contend that electrocution causes more than

death – it inflicts unnecessary and wanton pain and

cruelty; the physical violence violates basic dignity;

Estelle v. Gamble, 429 U.S. 97 (1976).

Id. at 102-03.

Id. at 104.

Glass v. Louisiana, 471 U.S. 1060 (1985).

Id. at 1085.

Id. at 1088.

and, may require several attempts and a lingering

death.62

Based on these cases, there are certain guiding

principles:

•

Being quartered was considered an atrocity;

•

Conduct that shocks the conscience violates the Due Process Clause;

•

The government must respect certain decencies of civilized conduct;

•

Conduct that is degrading to the dignity

of human beings is banned;

•

Pain is a factor;

•

Idealist concepts of dignity, civilized

standards, humanity, and decency are required; and,

•

The punishment must comport with

standards of human dignity.

Based on these principles, the Eighth Amendment

prohibits such barbaric practices as drawing and quartering63 which tore the individual apart. Such punishment was for the high crime of treason.64 The last time

Id. at 1093

Id. at 1088.

For a history and description of drawing and quartering,

see Wyatt Redd, How Being Hanged, Drawn, and Quartered Became the Most Brutal Punishment in History (2018), available at

https://allthatsinteresting.com/hanged-drawn-quartered.

anyone was sentenced to be hanged, drawn, and quartered was in 1867.65 It was certainly reasonable to say

that this was the “most brutal punishment in history.”66 The living unborn child has not committed any

high crimes and does not deserve this brutal and gruesome death.

Neither prisoners nor innocent unborn children

should be treated in such a manner. The State of Alabama sought to respect a woman’s choice while protecting the dignity of her unborn child by disallowing a

gruesome, brutal, and inhumane form of abortion. This

Court should grant the Petition for Writ of Certiorari

and uphold the State’s legitimate interests.

II.

THIS COURT SHOULD RECOGNIZE AND

PRESERVE THE HUMANITY OF ALL CITIZENS AND PARTICULARLY THE UNBORN

WHO ARE THE MOST HELPLESS AND

VULNERABLE IN OUR SOCIETY.

From the foundation of this country, there has

been a respect for life. In the Declaration of Independence, the Congress of the thirteen states unanimously

proclaimed that: “We hold these truths to be selfevident, that all men are created equal, that they are

endowed by their Creator with certain unalienable

rights, that among these are life, liberty, and the pursuit of happiness.”67 The right to life was the first right

Id.

DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).

mentioned and the others could only be enjoyed if the

first was protected.68

Mother Teresa addressed the issue before this

Court and recognized the principle by stating:

If the right [to] life is an inherent and inalienable right, it must surely obtain wherever human life exists. No one can deny that the

unborn child is a distinct human being, that it

is human, and that it is alive. It is unjust,

therefore, to deprive the unborn child of its

fundamental right to life on the basis of its

age, size, or condition of dependency.69

As Justice Scalia stated:

The notion that the Constitution of the United

States, designed, among other things, “to establish Justice, insure domestic Tranquility,

. . . and secure the Blessings of Liberty to ourselves and our Posterity,” prohibits the States

from simply banning this visibly brutal

means of eliminating our half-born posterity

is quite simply absurd.70

What was known in principle has now been proven

in science. An explosion of medical and scientific

For a detailed discussion of Roe, see Linda L. Schlueter,

40th Anniversary of Roe v. Wade: Reflections Past, Present and

Future, 40 OHIO N. L. REV. 105 (2013).

Matthew Clark, Mother Teresa’s Defense of the Unborn at

the U.S. Supreme Court, available at https://aclj.org/pro-life/motherteresa-defense-unborn-us-supreme-court.

Stenberg v. Carhart, 530 U.S. 914, 953 (2000) (Scalia, J.,

dissenting).

knowledge regarding the humanity of the unborn child

has occurred since the Court’s decision in Roe v.

Wade.71 Through the development of ultrasound technology, doctors and their patients can see the living

and growing child within the womb. This technology

also refutes the statements by abortionists that the

child is just blood, a blob of tissue, or the product of

conception.72 These descriptions are not only misleading, they deny the humanity of the child.

Recognition of the humanity of the child can be

seen in various ways:

•

Ultrasound technology allows a mother to

see her unborn child at all stages of her

pregnancy including the growth and development of the child and potential abnormalities.

•

Science confirms that life begins at conception.

•

Doctors can successfully perform in-utero

surgery on an unborn child at very early

stages of pregnancy.

•

The viability date of unborn children has

continued to advance year after year,

with infants born as early as twenty-one

(21) weeks and living full healthy lives.

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

For example, in Acuna v. Turkish, 192 N.J. 399, 930 A.2d

416 (2007) (stating at seven weeks development that the child

was only blood).

•

Improvements in neo-natal medical technology now make it possible for dramatically premature infants to live when a

few years ago they would not have survived.

•

DNA technology can remove any doubt

that there are two living human beings –

the mother and her unborn child.

Alabama has a legitimate state interest in reducing fetal pain and treating the unborn in a humane

and dignified way. The Alabama Legislature correctly

stated in its findings: “The dignity and value of life, especially the lives of children, born and unborn, has

been and continues to be a public policy of the highest

order and often sacred concern for the people of this

state.”73

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

ALA. CODE § 26-23F-2(a)(4). (allowing “parents of deceased

unborn infants to provide a dignified final disposition of the bodily

remains of these infants”).

CONCLUSION

This Court should grant the Petition for Writ of

Certiorari and reverse the decision by the court of appeals.

Respectfully submitted,

LINDA BOSTON SCHLUETER

Counsel of Record

TRINITY LEGAL CENTER

11120 Wurzbach, Suite 206

San Antonio, Texas 78230

210-697-8202

TLC4Linda@aol.com

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.