Amicus Curiae Brief — Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al., Petitioners v. Jackson Women's Health Organization, et al.
Supreme Court briefJul 29, 2021
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No. 19-1392
In the
Supreme Court of the United States
Thomas E. Dobbs, State Health Officer of
the Mississippi Departmentof Health, et al.,
Petitioners,
v.
Jackson Women’s Health Organization, et al.,
Respondents.
On Writ of Certiorari to the United States
Court of A ppeals for the Fifth Circuit
BRIEF OF AMICI CURIAE CARE NET,
A NATIONAL AFFILIATION ORGANIZATION
OF 1,200 PREGNANCY HELP CENTERS,
AND ALPHA CENTER, A SOUTH DAKOTA
REGISTERED PREGNANCY HELP CENTER,
IN SUPPORT OF PETITIONERS
Harold J. Cassidy
Counsel of Record
Joseph R. Zakhary
Derek M. Cassidy
Thomas J. Viggiano, III
The Cassidy Law Firm LLC
750 Broad Street, Suite 3
Shrewsbury, New Jersey 07702
(732) 747-3999
hjc@thecassidylawfirm.com
Counsel for Amici Curiae
306314
i
TABLE OF CONTENTS
Page
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . iv
INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . . 1
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 2
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
I.
An Abortion is the Employment of a
Medical Procedure to Achieve a NonMedical Objective: The Termination of
the Pregnant Mother’s Constitutionally
Protected Relationship with Her Child,
By Terminating the Life of a Whole,
Separate, Unique, Living Human Being . . . . . . . 6
II. An Abortion is Not the Exercise of a
Right; It is the Wa iver, Su r render
and Termination of One of the Most
Important Fundamental Intrinsic Rights
a Mother Has in All of Life; Roe and
Casey Have Operated to Destroy that Right . . 15
A. T h e P r e g n a n t M o t h e r h a s a
Fundamental, Intrinsic Right to
Maintain Her Relationship with Her
Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ii
Table of Contents
Page
B. B e c a u s e R o e a n d C a s e y h a ve
Prohibited the States from Providing
Mea n i ng f u l P rot ect ions for the
Pregnant Mother’s Right to Her
Relationship, Mothers are Losing Their
Children Against Their Will . . . . . . . . . . . . 21
1.
The Primary Decision . . . . . . . . . . . . . 21
2. Pregnant Mothers are Routinely
Coerced and P ressured into
A bor t ions, a nd the Derel ict
Practices of Abortion Clinics
Exacerbate the Coercion . . . . . . . . . . . 22
III. Because Roe and Casey are Used to
Prohibit the States from Providing any
Meaningful Protection of the Pregnant
Mothers’ Interests, the Mother’s Due
Process and Equal Protection Rights
Are Being Violated . . . . . . . . . . . . . . . . . . . . . . . . 26
A. General Considerations . . . . . . . . . . . . . . . . 26
B. Roe and Casey Have Operated to
Prohibit Reasonable and Necessary
Exercise of the State’s Authority
to Protect the Fundamental Rights
of P reg nant Mothers Resu lti ng
i n t he V iol at ion of T he i r D ue
Process and Equal Protection Rights . . . . 28
iii
Table of Contents
Page
1.
The Tension and Conflict Between
Two Distinct Liberty Interests . . . . . . 28
2. Due Process . . . . . . . . . . . . . . . . . . . . . . 29
3.
Equal Protection . . . . . . . . . . . . . . . . . . 31
(a) “Voluntary” Termination . . . . . . . 31
(b) T he C r i m i n a l Ho m i c i d e
Exception . . . . . . . . . . . . . . . . . . . . .32
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
iv
TABLE OF CITED AUTHORITIES
Page
Cases
Aetna Ins. Co. v. Kennedy,
301 U.S. 389 (1937) . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Board of Regents, et al. v. Roth,
408 U.S. 564 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . 15-16
Burgess v. the Superior Court of Los Angeles,
2 Cal. 4th 1064, 831 P.2d 1197, 9 Cal. Rptr. 2d
615 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Caban v. Mohammed,
441 U.S. 380 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Clark v. Jeter,
486 U.S. 456 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Draper v. Jasionowski,
372 N.J. Super. 368, 858 A.2d 1141
(App. Div. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
F.S. Royster Guano Co. v. Virginia,
253 U.S. 412 (1920) . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Gonzales v. Carhart,
550 U.S. 124 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Graham v. Richardson,
403 U.S. 365 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . 2, 16
v
Cited Authorities
Page
Griswold v. Connecticut,
381 U.S. 479 (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Harrison v. United States,
284 F.3d 293 (1st Cir. 2002) . . . . . . . . . . . . . . . . . 12-13
Hughson v. St. Francis Hospital,
92 A.D.2d 131, 459 N.Y.S.2d 814 (1983) . . . . . . . . . . 12
In re A.C.,
573 A.2d 1235 (D.C. 1990) . . . . . . . . . . . . . . . . . . . . . 13
In re Certification of Question of Law from U.S.
District Court (Farley),
387 N.W.2d 42 (S.D. 1986) . . . . . . . . . . . . . . . . . . . . . 13
Johnson v. Zerbst,
304 U.S. 458 (1938) . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Jones v. MetroHealth Med. Ctr,
89 N.E.3d 633 (Ohio Ct. App. 2017) . . . . . . . . . . . . . 13
Ledford v. Martin,
87 N.C. App. 88, 359 S.E.2d 505 (1987) . . . . . . . . . . 13
Lehr v. Robertson,
463 U.S. 248 (1983) . . . . . . . . . . . . . . . . . . . . . . . passim
M.L.B. v. S.L.J.,
519 U.S. 102 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
vi
Cited Authorities
Page
Massachusetts, Comm. v. Crawford,
722 NE.2d 960 (Mass. 2000) . . . . . . . . . . . . . . . . . . . 11
McIntyre v. Jones,
194 P.3d 519 (Colo. App. 2008) . . . . . . . . . . . . . . . . . . 10
Meyer v. Nebraska,
262 U.S. 390 (1923) . . . . . . . . . . . . . . . . . . . . . . . . 16, 18
Michael H. v. Gerald D.,
491 U.S. 110 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
Miller ex rel. Miller v. Dacus,
231 S.W.3d 903 (Tenn. 2007) . . . . . . . . . . . . . . . . . . . 13
Moore v. East Cleveland,
431 U.S. 494 (1977) . . . . . . . . . . . . . . . . . . . . . . . . 16, 18
Morrisey v. Brewer,
408 U.S. 471 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . 2, 16
NBC Subsidiary (KCNC-TV) Inc., v.
Living Will Ctr.,
879 P.2d 6 (Colo. 1994) (en banc) . . . . . . . . . . . . . . . . 10
Nguyen v. I.N.S.,
533 U.S. 53 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Nold v. Pinyon,
272 Kan. 87, 31 P.3d 274 (2001) . . . . . . . . . . . . . . . . . 13
vii
Cited Authorities
Page
Ob-Gyn Associates of Albany v. Littleton,
259 Ga. 663, 386 S.E.2d 146 (1989) . . . . . . . . . . . . . . 13
Pierce v. Soc. of Sisters,
268 U.S. 510 (1925) . . . . . . . . . . . . . . . . . . . . . . . . 17, 18
Planned Parenthood Minn., N..D., S.D., et al. v.
Rounds, Alpha Center, et al.,
530 F.3d 724 (8th Cir. 2008) (en banc) . . . . . . . . 3, 7, 8
Planned Parenthood Minn., N..D., S.D., et al. v.
Rounds, Alpha Center, et al.,
650 F. Supp. 2d 972 (U.S. Dist. Ct., S.D.D. 2009) . 3, 9
Planned Parenthood Minn., N..D., S.D., et al. v.
Rounds, Alpha Center, et al.,
653 F.3d 662 (8th Cir. 2011) . . . . . . . . . . . . . . . . 3, 9, 20
Planned Parenthood Minn., N.D., S.D., et al. v.
Noem, Alpha Center, et al.,
U.S. Dist. Ct., D.S.D., civ-11-4071 KES . . . . . . passim
Planned Parenthood of Southeastern
Pennsylvania v. Casey,
505 U.S. 833 (1992) . . . . . . . . . . . . . . . . . . . . . . . passim
Planned Parenthood, et al. v. Rounds, et al.,
Civ. No. 05-4077-KES . . . . . . . . . . . . . . . . . . . . . . . 8, 20
Plyer v. Doe,
457 U.S. 202 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
viii
Cited Authorities
Page
Prince v. Mass.,
321 U.S. 158 (1944) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Quilloin v. Walcott,
434 U.S. 246 (1978) . . . . . . . . . . . . . . . . . . . . . . . . 17, 18
Randall v. United States,
859 F. Supp. 22 (D.C. 1994) . . . . . . . . . . . . . . . . . . . . 13
Roberts v. Patel,
620 F. Supp. 323 (N.D. Ill. 1985) . . . . . . . . . . . . . . . . 13
Roe v. Wade,
410 U.S. 113 (1973) . . . . . . . . . . . . . . . . . . . . . . . . passim
Santosky v. Kramer,
455 U.S. 745 (1982) . . . . . . . . . . . . . . . . . . . . . . . passim
Skinner v. Oklahoma,
316 U.S. 535 (1942) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Smith v. Organization of Foster Families,
431 U.S. 816 (1972) . . . . . . . . . . . . . . . . . . . . . . 3, 17, 18
Snyder v. Massachusetts,
291 U.S. 97 (1934) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Stanley v. Ill.,
405 U.S. 645 (1972) . . . . . . . . . . . . . . . . . . . . . 17, 18, 28
ix
Cited Authorities
Page
State v. Post,
733 N.W. 2d 634 (Wis. 2007) . . . . . . . . . . . . . . . . . . . 10
State v. Rollen,
133 SW.3d 57 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . 11
State v. Tomaszewski,
782 N.W. 2d 725 (Wis. Ct. App. 2010) . . . . . . . . . . . . 10
Troxel v. Granville,
530 U.S. 57 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . 18, 29
U.S. v. Gould,
536 F.2d 216 (8th Cir. 1976) . . . . . . . . . . . . . . . . . . . . . 9
U.S. v. Hanna,
293 F.3d 1080 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . 10
U.S. v. Lincoln,
403 F.3d 703 (9th Cir. 2005) . . . . . . . . . . . . . . . . . . . . 10
Walker v. Mart,
164 Ariz. 37, 790 P.2d 735 (1990) . . . . . . . . . . . . . . . . 13
Washington v. Glucksberg,
521 U.S. 702 (1997) . . . . . . . . . . . . . . . . . . . . . 2, 5, 6, 16
Weber v. Aetna,
406 U.S. 164 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
x
Cited Authorities
Page
Yick Wo v. Hopkins,
118 U.S. 356 (1886) . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Statutes
Alabama, Ala. Code 1975 §§ 13A-6-1-13A-6-4 . . . . . . . 10
Alaska, Alaska Stat. § 11.41.150 . . . . . . . . . . . . . . . . . . . 10
Arizona, Ariz. Rev. Stat Ann. §§ 13-1102-13-1105 . . . . 10
Arkansas, Ark. Stat. Ann. §§ 5-10-102-5-10-105 . . . . . 10
California, Cal. Penal Code § 187(a) . . . . . . . . . . . . . . . . 11
Florida, F.S.A. § 782.09 . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Georgia, Ga. Code Ann. § 16-5-80 . . . . . . . . . . . . . . . . . 11
Idaho, I.C. § 18-4001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Illinois, §§ 720 ILCS 5/9-1.2 . . . . . . . . . . . . . . . . . . . . . . 11
Illinois, §§ 720 ILCS 5/9-2.1 . . . . . . . . . . . . . . . . . . . . . . 11
Illinois, §§ 720 ILCS 5/9-3.2 . . . . . . . . . . . . . . . . . . . . . . 11
Indiana, IC §§ 35-42-1-1 . . . . . . . . . . . . . . . . . . . . . . . . . 11
Indiana, IC §§ 35-42-1-3 . . . . . . . . . . . . . . . . . . . . . . . . . 11
xi
Cited Authorities
Page
Indiana, IC §§ 35-42-1-4 . . . . . . . . . . . . . . . . . . . . . . . . . 11
Indiana, IC §§ 35-42-1-6 . . . . . . . . . . . . . . . . . . . . . . . . . 11
Kansas, K.S.A. §§ 21-5401-5406 . . . . . . . . . . . . . . . . . . . 11
Kentucky, KRS §§ 507A.020-.050 . . . . . . . . . . . . . . . . . . 11
Louisiana, LA. Stat. Ann. §§ 14:29-14:32.8 . . . . . . . . . . 11
Maryland, MD CRIM LAW § 2-103 . . . . . . . . . . . . . . . 11
Michigan, M.C.L.A. §§ 750.322-.323 . . . . . . . . . . . . . . . 11
Minnesota, M.S.A. §§ 609.266-.2691 . . . . . . . . . . . . . . . 11
Miss. Code. Ann. § 97-3-19 . . . . . . . . . . . . . . . . . 11, 14, 32
Miss. Code Ann. § 97-3-21(1) . . . . . . . . . . . . . . . . . . . . . . 14
Miss. Code Ann. § 97-3-37(1) . . . . . . . . . . . . . . . . 11, 14, 32
Missouri, V.A.M.S. §§ 565.020-565.027 . . . . . . . . . . . . . 11
Montana, M.C.A. §§ 45-5-102 . . . . . . . . . . . . . . . . . . . . . 11
Montana, M.C.A. §§ 45-5-103 . . . . . . . . . . . . . . . . . . . . . 11
Nebraska, Neb. Rev. St. §§ 28-388-28-394 . . . . . . . . . . 11
xii
Cited Authorities
Page
Nevada, N.R.S. 200.210 . . . . . . . . . . . . . . . . . . . . . . . . . . 11
New Hampshire, N.H. Rev. Stat. §§ 630:1-a-630:4 . . . 11
North Carolina, N.C.G.S.A. §§ 14-23.1-14-23.8 . . . . . . . 11
North Dakota NDCC §§ 12.1-17.1-02-12.1-17.1-06 . . . . 11
Ohio, R.C. §§ 2903.01-2903.08 . . . . . . . . . . . . . . . . . . . . . 11
Oklahoma, 21 Okl. St. Ann § 691 . . . . . . . . . . . . . . . . . . 11
Pennsylvania, 18 Pa. C.S.A. §§ 2601-2609 . . . . . . . . . . . 11
SDCL § 22-6-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 32
SDCL § 22-16-1.1 . . . . . . . . . . . . . . . . . . . . . . 11, 13, 30, 32
SDCL § 34-23A-2-5 . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 28
SDCL § 34-23A-10.1(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SDCL § 34-23A-54(1)-(5) . . . . . . . . . . . . . . . . . . . . . . . . . 27
SDCL § 34-23A-58 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SDCL § 34-23A-58.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SDCL § 34-23A-59 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
xiii
Cited Authorities
Page
SDCL § 34-23A-85 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
South Carolina, SC ST § 16-3-1083 . . . . . . . . . . . . . . . . 11
South Dakota, SDCL § 22-16-1.1 . . . . . . . . . . . . . . . 11, 13
Tennessee, T.C.A. §§ 39-13-201-39-13-218 . . . . . . . . . . 11
Texas, V.T.C.A., Penal Code §§ 19.01-19.05 . . . . . . . . . . 11
Utah, U.C.A. 1953 §§ 76-5-202-76-5-209 . . . . . . . . . . . . 11
Virginia, VA Code Ann. § 18-2-32.2 . . . . . . . . . . . . . . . . 11
Washington, Wash Rev. Code § 9A.32.060 . . . . . . . . . . 11
West Virginia, W. Va. Code §§ 61-2-1 . . . . . . . . . . . . . . . 11
West Virginia, W. Va. Code §§ 61-2-4 . . . . . . . . . . . . . . 11
West Virginia, W. Va. Code §§ 61-2-7 . . . . . . . . . . . . . . .11
Wisconsin, Wis. Stat. § 940.01 . . . . . . . . . . . . . . . . . . . . .11
Wyoming, W.S. §§ 6-2-101 . . . . . . . . . . . . . . . . . . . . . . . . 11
Wyoming, W.S. §§ 6-2-104 . . . . . . . . . . . . . . . . . . . . . . . . 11
18 U.S.C. § 1841(a)(2)(C) . . . . . . . . . . . . . . . . . . . . . . . . . 11
xiv
Cited Authorities
Page
Other Authorities
ACO G Com m. on Et h ic s (2 0 0 3 - 0 4), A m.
Coll. Of Obstetr ics and Gy necolog ists,
Patient Ch oice in th e Mat er n al-Fet al
Relationship, in Ethics in Obstetrics and
Gynecology 34-6 (ACOG, 2nd ed., 2004) . . . . . . . . . . 12
ACOG, Comm. Opinion 554 “Reproductive
and Sexual Coercion” . . . . . . . . . . . . . . . . . . . . . . . . . 23
Hou se Conc u r r ent R e solut ion No. 10 0 4 ,
State of South Dakota, Ninetieth Session,
Legislative Assembly, 2015 . . . . . . . . . . . . . 4, 5, 17, 19
Report of South Dakota Task Force to Study
Abortion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 21
Supreme Court Rule 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . 1
The Unborn Patient: Prenatal Diagnosis and
Treatment (Michael R. Harrison, MD et al.; eds.
2nd ed. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
1
INTEREST OF AMICI CURIAE1
Care Net is a national non-profit corporation and one of
the largest affiliation organizations for pregnancy centers
in North America. Care Net provides education, support,
and training for its approximately 1,200 affiliates, sixteen
of which are located in Mississippi. Care Net also runs the
only national call center providing immediate assistance
to pregnant mothers considering giving up their rights
by an abortion. In providing services in support of local
pregnancy centers, Care Net seeks to protect the interests
pregnant mothers have in their constitutionally protected
relationship with their children.
Alpha Center, founded in 1984, is a South Dakota
Registered Pregnancy Help Center on the State’s registry
maintained by the South Dakota Department of Health,
and is highly regulated and required to follow strict
policies and procedures dictated by statute.
Alpha Center’s central mission is to protect a pregnant
mother’s interest in her relationship with her child.
Alpha Center, a 501(c)(3) charitable organization,
provides pre-abortion counseling, practical assistance,
and material support to pregnant mothers who want to
maintain their relationship with their children, free of
charge.
1. Pursuant to Supreme Court Rule 37.6, no counsel for
any party authored this brief in whole or in part, and no counsel
or party made a monetary contribution intended to fund its
preparation or submission. No person other than the amici curiae,
or their counsel made a monetary contribution to its preparation or
submission. The parties have consented to the filing of this brief.
2
For the past 16 years, Alpha Center has successfully
defended South Dakota statutes designed to protect a
pregnant mother’s right to maintain her relationship with
her child against abortion clinics, winning four different
decisions in the Eighth Circuit.
Alpha Center is currently in litigation defending
South Dakota’s Anti-Coercion Statute intended to protect
pregnant mothers from losing their children as a result
of coerced abortions.
SUMMARY OF ARGUMENT
Roe v. Wade, 410 U.S. 113 (1973) and Planned
Parenthood of Southeastern Pennsylvania v. Casey, 505
U.S. 833 (1992) never properly defined the conduct which
the Court in those cases identified as a protected “liberty.”
The essential starting point in any substantive Due
Process analysis is the “careful description” of the conduct
asserted to be protected. Washington v. Glucksberg, 521
U.S. 702, 722-23 (1997); Morrisey v. Brewer, 408 U.S.
471, 481 (1972); Graham v. Richardson, 403 U.S. 365,
374 (1971).
In its abortion jurisprudence, however, this Court
has abandoned that disciplined approach and adherence
to that requirement, resorting to use of vague and
obfuscatory terms like “potential life” and “termination
of pregnancy,” avoiding direct and accurate definition of
the conduct involved.
An abortion is an extraordinary procedure unlike any
other in all of medicine, because it is the employment of
a medical procedure to achieve a non-medical objective:
3
the termination of a pregnant mother’s constitutionally
protected relationship with her child. That termination
is achieved by the termination of the life of the mother’s
child, a whole, separate, unique, living human being.
Planned Parenthood Minn., N..D., S.D., et al. v. Rounds,
Alpha Center, et al., 530 F.3d 724 (8th Cir. 2008) (en banc)
(Rounds II); Planned Parenthood Minn., N..D., S.D., et
al. v. Rounds, Alpha Center, et al., 650 F.Supp. 2d 972,
976 (U.S. Dist. Ct., S.D.D. 2009) (Rounds III); Planned
Parenthood Minn., N..D., S.D., et al. v. Rounds, Alpha
Center, et al., 653 F.3d 662, 667-68 (8th Cir. 2011) (Rounds
IV).
Any reexamination of Roe and Casey requires the
acknowledgment that an abortion is the employment of a
medical procedure to achieve a non-medical objective: the
termination of a pregnant mother’s relationship with her
child, without any meaningful protection for the mother’s
rights, by terminating the life of the mother’s child, a
whole, separate, unique, living human being, one of the
doctor’s patients.
A pregnant mother has a fundamental intrinsic
right to maintain her relationship with her child. Lehr v.
Robertson, 463 U.S. 248, 260 (1983); Smith v. Organization
of Foster Families, 431 U.S. 816, 845 (1972); Santosky v.
Kramer, 455 U.S. 745, 753, 758-59 (1982).
The state is duty-bound to protect the pregnant
mother’s right to that relationship from unconstitutional
terminations whether they are termed “involuntary” or
“voluntary.” Pregnant mothers are routinely coerced into
having abortions they do not want, resulting in the loss
of their children.
4
Because Roe and Casey are usd to prohibit the states
from providing any meaningful protection of the mothers
intrinsic right to her relationship with her child, the
pregnant mother’s Due Process and Equal Protection
rights have been routinely violated.
“It is a necessary and proper exercise of
the state’s authority to give precedence to
the mother’s fundamental interest in her
relationship with her child over the irrevocable
method of termination of that relationship by
induced abortion.” SDCL § 34-23A-2-5.
ARGUMENT
Petitioners, Thomas Dobbs, M.D., M.P.H. and Kenneth
Cleveland, M.D., have raised the conventional objections to
the Court’s decisions in Roe v. Wade, 410 U.S. 113 (1973)
and Planned Parenthood of Southeastern Pennsylvania
v. Casey, 505 U.S. 833 (1992).
While those objections validly point to many flaws in
the Court’s analysis in those cases, there are other points,
of significant importance, never before presented to this
Court in a case scrutinizing a state’s regulation of abortion.
These amici address two of those matters.
They are best highlighted and understood in the
context of the ongoing efforts of the State of South Dakota
to protect the fundamental intrinsic rights of the pregnant
mothers of that state. 2
2. By a super majority of 83% of both chambers of its
legislature, South Dakota passed a 23-page Concurrent Resolution
5
First, as a fundamental matter, Roe and Casey never
properly defined the conduct that was claimed to be a
protected “liberty” in those cases. Properly identifying
and defining the conduct asserted to be protected is a
basic threshold issue. Washington v. Glucksberg, 521 U.S.
702, 722-723 (1997).
Second, in an effort to justify its affirmance of Roe,
Casey made the startling claim that:
addressed to this Court setting forth its grievances with Roe and
Casey. That resolution observed:
“Virtually every statute we have passed to protect the
interests of pregnant mothers has been attacked in court by
an abortion clinic and its physicians claiming that Roe v. Wade
prohibits our rational and carefully thought out legislation. Much
of that legislation was designed to protect the pregnant mothers
against the negligence and dereliction of the abortion providers
themselves. Despite clear conf lict of interest, the abortion
providers claimed in court to represent the rights of the pregnant
mothers, and based upon Roe and its progeny, the Federal District
Court permitted the abortion providers to stand in the place of
the very women whose rights they violated.”
“The People of South Dakota and its elected officials have
stayed true to its mission of protecting its people, but, yet again,
find itself embroiled in litigation over its efforts to protect the
rights of its pregnant mothers. Another challenge, this time to
South Dakota’s 2011 Anti-Coercion Statute, is now in the courts...”
“The people of the various states will never have confidence
in, or acceptance of, the Roe decision; and will not have confidence
in the Court that reaffirmed a decision which a majority of its
members knew and admitted was wrongly decided, until the
Court corrects its errors of Roe...” Planned Parenthood, Minn
N.D., S.D., v. Noem, Alpha Center, U.S. Dist. Ct., D.S.D., Case
4:11-cv-04071 KES, House Concurrent Resolution No. 1004, State
of South Dakota, Ninetieth Session, Legislative Assembly, 2015,
ECF 266-28.
6
“Even on the assumption that the central
holding of Roe was in error, that error would go
only to the strength of the state interest in fetal
protection, not to the recognition afforded by
the Constitution to the women’s liberty.” Casey,
505 U.S. at 858 (emphasis added).
In fact, Roe and its progeny have been used to destroy
one of the most important fundamental intrinsic rights a
pregnant mother has in all of life.
I.
An Abortion is the Employment of a Medical
Procedure to Achieve a Non-Medical Objective:
The Termination of the Pregnant Mother’s
Constitutionally Protected Relationship with
Her Child, By Terminating the Life of a Whole,
Separate, Unique, Living Human Being.
Glucksberg admonished that the essential starting
point in any substantive Due Process analysis is the
careful defining of the conduct asserted to constitute a
protected liberty: “[W]e have required in substantivedue-process cases a ‘careful description’ of the asserted
fundamental liberty interest.” Glucksberg, 521 U.S. at 721
(citations omitted).
As a result, Glucksberg rejected the description of the
“liberty” asserted by its proponent – “the right to die” –
the Court determining instead that the conduct asserted
as a “liberty” was more accurately described as “a right to
commit suicide which itself includes a right to assistance
in doing so.” Id. at 723.
In its abortion jurisprudence, however, the Court
has abandoned that disciplined approach and failed to
7
accurately define the “conduct” alleged to constitute a
protected liberty, resorting to vague and obfuscatory
terms like “potential life”3 and “termination of pregnancy.”4
The Court has never provided“careful description” of the
conduct asserted to be protected.
An abortion is an extraordinary procedure unlike any
other in all of medicine.
An abortion is the employment of a medical procedure
to achieve a non-medical objective: the termination of
a pregnant mother’s relationship with her child. See,
Declaration of Glenn Ridder, M.D., Planned Parenthood
Minn., N.D., S.D., et al. v. Noem, Alpha Center, et al., U.S.
Dist. Ct., D.S.D., civ-11-4071 KES (P.P. v. Noem), ECF
246,¶6; Id., Hartmann, M.D., ECF 269, ¶¶17, 34-40; Id.,
Grossman, M.D., ECF 236, ¶16.
The termination of the pregnant mother’s relationship
with her child is achieved by the termination of the life
of the child. An abortion terminates the life of a whole,
separate, unique, living human being. SDCL § 34-23A-10.1
requires that fact to be disclosed to a pregnant mother
before a physician can take a consent for an abortion.
Planned Parenthood’s challenge to the constitutionality of
that disclosure requirement was rejected by an en banc
court of the Eighth Circuit. Planned Parenthood Minn,
N.D., S.D., et al. v. Rounds, Alpha Center, et al., 530 F.3d
724 (8th Cir. 2008) (en banc) (Rounds II), held that the
3. Roe, 410 U.S. at 113; Casey, 505 U.S. at 870, 871, 872, 873,
876, 878, 886.
4. Roe, 410 U.S. at 140; Casey, 505 U.S. at 852, 869, 870, 871,
872, 874, 887, 888.
8
“Human Being” Disclosure is a statement of scientific fact,
not a statement of ideology – as claimed by the plaintiffs
– and relevant to the decision of the pregnant mother. Id.
at 735-737.
The Eighth Circuit found that the Human Being
Disclosure was a true statement of scientific fact. The
en banc Court in Rounds II, when it dissolved the
preliminary injunction, stressed that the “truthfulness” of
the Human Being Disclosure “generates little dispute.” Id.
at 735. That court emphasized the record which included
the testimony of nationally renowned experts in molecular
biology and human embryology, and the detailed scientific
information and analysis concerning DNA, RNA, their
function and the new recombinant DNA technologies that
permit observation on a molecular level. Id. at 728-729;
Planned Parenthood, et al. v. Rounds, et al., Civ. No. 054077-KES, Declarations of Dr. David Mark, Ph.D., ECF
25, and Dr. Bruce Carlson, M.D., Ph.D., ECF 24.
After dissolution of the preliminary injunction,
and following completion of discovery in Rounds, the
Intervenor Alpha Center moved for summary judgment
concerning the truth of the Human Being Disclosure.
Despite the fact that the Plaintiffs in Rounds had
competent counsel and excellently credentialed experts, the
district court was compelled to enter summary judgment
because there was no genuine dispute concerning the
truthfulness of the statement that “an abortion terminates
the life of a whole, separate, unique, living human being.”
All the objective science supported the disclosure and
the Plaintiffs’ experts and physicians were compelled to
admit the essential truth of the statement. See, e.g., P.P.
9
v. Noem, Intervenors’ Rule 56.1 Statement of Undisputed
Material Facts. ECF 296, ¶¶85-112.
The district court ruled that the physician is required
to make the Human Being Disclosure using the exact
language of the statute. See, Planned Parenthood, et al.
v. Rounds, et al., 650 F.Supp. 2d 972, 976 (2009) (Rounds
III).
The Rounds Plaintiffs appealed the decision granting
summary judgment. The Eighth Circuit affirmed the
district court. Planned Parenthood, et al. v. Rounds, et
al., 653 F.3d 662, 667-668 (8th Cir. 2011) (“Rounds IV”).
Thus, Rounds held that the Human Being Disclosure
found in South Dakota’s Informed Consent Statute was
a truthful, non-misleading statement of scientific and
biological fact. Rounds IV at 667-668.
The fact that an unborn child is a human being is
universally and objectively true, and Rounds established
that it is a constitutional fact.
Legislative facts (also referred to as “universal” facts)
are binding on litigants in subsequent cases. U.S. v. Gould,
536 F.2d 216, 219-220 (8th Cir. 1976). “legislative facts
are established truths, facts or pronouncements that do
not change from court to court but apply universally... .”
Id., at 220.
That the earth revolves around the sun is a universally
true legislative fact. So too, the fact that an abortion
terminates the life of a whole, separate, unique, living
human being.
10
A constitutional fact is one that is essential for a
determination of a question of constitutional law; the fact
and the constitutional determination are inextricably
connected. See, e.g., U.S. v. Lincoln, 403 F.3d 703, 705-706
(9th Cir. 2005) (quoting U.S. v. Hanna, 293 F.3d 1080, 1088
(9th Cir. 2002)) (“[c]onstitutional facts are facts – such as ...
whether a statement is a true threat – that determine the
core issue of whether the challenged speech is protected
by the First Amendment”). 5
The South Dakota Human Being Disclosure was
found to be constitutional, as a matter of law, precisely
because it is “truthful and non-misleading.” The entire
constitutionality of the disclosure rose and fell on whether
it was truthful and non-misleading.
Throughout the nation, the killing of a child in utero,
at any time after conception, is now recognized as the
killing of a whole, separate, unique, living human being.
Currently, 38 states and the federal government make it
a criminal homicide to kill an unborn child in utero, and
in 30 of those jurisdictions, it is a homicide to kill the child
at any age after conception.6
5. See also, McIntyre v. Jones, 194 P.3d 519, 528 (Colo. App.
2008) (an issue of ‘constitutional fact’ is one which affects whether
the [defamatory] statement is subject to constitutional protection”
(citing NBC Subsidiary (KCNC-TV) Inc., v. Living Will Ctr., 879
P.2d 6, 9-11 (Colo. 1994) (en banc); State v. Tomaszewski, 782 N.W.
2d 725, 727 (Wis. Ct. App. 2010) (quoting State v. Post, 733 N.W.
2d 634, 636 (Wis. 2007)) (“the question of whether a traffic stop
is reasonable is a question of constitutional law”).
6. Alabama, Ala. Code 1975 §§ 13A-6-1 to 13A-6-4 (conception);
Alaska, Alaska Stat. § 11.41.150 (conception); Arizona, Ariz.
Rev. Stat Ann. §§ 13-1102-13-1105 (conception); Arkansas, Ark.
Stat. Ann. §§ 5-10-102-5-10-105 (defined by id. § 5-1-102(13)(B))
11
It is well established that a physician who has a
pregnant woman as a patient has two separate patients,
(conception); California, Cal. Penal Code § 187(a) (fetal stage);
Federal, 18 U.S.C. § 1841(a)(2)(C) (conception); Florida, F.S.A.
§ 782.09 (defined by id. § 775.021(5)) (conception); Georgia, Ga.
Code Ann. § 16-5-80 (conception); Idaho, I.C. § 18-4001 (defined
by id. § 18-4016) (conception); Illinois, §§ 720 ILCS 5/9-1.2,-5/92.1,-5/9-3.2 (conception); Indiana, IC §§ 35-42-1-1,42-1-3,42-14,42-1-6 (conception); Kansas, K.S.A. §§ 21-5401-5406 (defined
by id § 21-5419) (conception); Kentucky, KRS § 507A.020-.050
(defined by § 507A.010(1)(c)) (conception); Louisiana, LA. Stat.
Ann. §§ 14:29-14:32.8 (defined by id. § 14:2 A(7) & (11)) (conception);
Maryland, MD CRIM LAW § 2-103 (viability); Massachusetts,
Comm. v. Crawford, 722 NE.2d 960 (Mass. 2000) (viability);
Michigan, M.C.L.A. §§ 750.322-.323 (quickening); Minnesota,
M.S.A. §§ 609.266-.2691 (conception); Mississippi, Miss. Code.
Ann. § 97-3-19 (defined by id. § 97-3-37(1)) (conception); Missouri,
V.A.M.S. §§ 565.020-565.027 (defined by id. § 1.205 under State
v. Rollen, 133 SW.3d 57 (2003)) (conception); Montana, M.C.A. §§
45-5-102,45-5-103 (defined by § 45-5-116(3)) (8 weeks); Nebraska,
Neb. Rev. St. §§ 28-388 to 28-394 (conception); Nevada, N.R.S.
200.210 (quickening); New Hampshire, N.H. Rev. Stat. §§ 630:1-a
to 630:4 (20 weeks post conception); North Carolina, N.C.G.S.A. §§
14-23.1-14-23.8 (conception); North Dakota NDCC §§ 12.1-17.1-02
to 12.1-17.1-06 (defined by id. § 12.1-17.1-01(3)) (conception); Ohio,
R.C. §§ 2903.01--2903.08 (defined by id. § 2903.09) (conception);
Oklahoma, 21 Okl. St. Ann § 691 (defined by 63 Okl. St. Ann. §
1-730(A)(4)) (conception); Pennsylvania, 18 Pa. C.S.A. §§ 2601-2609
(defined by id. § 3203) (conception); South Carolina, SC ST § 16-31083 (conception); South Dakota, SDCL § 22-16-1.1 (defined by id.
§ 22-1-2(50A)) (conception); Tennessee, T.C.A. §§ 39-13-201 to 3913-218 (defined by id. § 39-13-214(a)) (conception); Texas, V.T.C.A.,
Penal Code §§ 19.01-19.05 (defined by id. § 1.07(a)(26)) (conception);
Utah, U.C.A. 1953 §§ 76-5-202 to 76-5-209 (defined by id. § 765-201) (conception); Virginia, VA Code Ann. § 18-2-32.2 (fetal
stage); Washington, Wash Rev. Code § 9A.32.060 (quickening);
West Virginia, W. Va. Code §§ 61-2-1,-2-4,-2-7 (defined by id. §
61-2-30) (conception); Wisconsin, Wis. Stat. § 940.01 (defined by id.
§ 939.75(1)) (conception); Wyoming, W.S. §§ 6-2-101,-104 (defined
by id. § 6-1-104(a)(xviii)) (conception).
12
the mother and her unborn child, and the physician has a
professional and legal duty to both. ACOG Comm. on Ethics
(2003-04), Am. Coll. Of Obstetrics and Gynecologists,
Patient Choice in the Maternal-Fetal Relationship, in
Ethics in Obstetrics and Gynecology 34-36 (ACOG, 2nd
ed., 2004) (“The maternal-fetal relationship is unique in
medicine … because both the fetus and the woman are
regarded as patients of the obstetrician”); Harrison,
M.R., Golbus, M.S., Filly, R.A. (Eds); The Unborn Patient:
Prenatal Diagnosis and Treatment (Michael R. Harrison,
MD et al. eds. 2nd ed. 1991).
Even the plaintiff abortion doctor in the current South
Dakota Anti-Coercion Statute litigation admits that a
physician who has a pregnant mother as a patient, has two
separate patients, the mother and her child, and has a duty
to both. See, P.P. v. Noem, testimony of Dr. Carol Ball,
Planned Parenthood Medical Director and member of the
Board of NAF., ECF 266-5; see also, Ridder, M.D., ECF
246, ¶15; Hartmann, M.D., ECF 269, ¶¶30-31. Dr. Ball
admits that the physician has a duty to disclose the risks of
a proposed procedure to the child by disclosing them to the
mother who makes a decision for both patients. Id., Ball,
ECF 266-20; Ridder, ECF 246, ¶¶14-18; Hartmann, ECF
269, ¶32. This dual duty is imposed by medical standards
and by law.7 Ridder, Id.; Hartmann, Id., ¶31.
7. Hughson v. St. Francis Hospital, 92 A.D.2d 131, 459
N.Y.S.2d 814 (1983) (“both the mother and child in utero . . . are
each owed a duty, independent of the other”). The doctor has
a duty to provide the mother with information regarding the
risks the proposed treatment would have for the child. Id. If the
physician fails to make proper disclosure, the child born alive
has a negligence claim against the physician for injuries causally
related to the negligence of defendants. Harrison v. United States,
13
Therefore, the physician who proposes to perform
an abortion proposes to terminate the life of one of her
patients.
It is a criminal homicide in South Dakota, Mississippi,
and 28 other jurisdictions to intentionally kill a human
being in utero any time after conception. SDCL § 22-161.1. See, footnote 6 above. Planned Parenthood’s Medical
Director, Dr. Ball, admitted that killing the child in utero,
at any age of gestation, is a criminal homicide, and the only
thing that immunizes her from prosecution is the signed
“consent.” P.P. v. Noem, Ball, ECF 266-7; see, SDCL § 2216-1.1 (doctor’s immunity depends on obtaining consent).
In states like South Dakota and Mississippi, the killing
of the child in utero is punishable by life imprisonment.
SDCL § 22-16.1-1 (fetal homicide is a Class B felony);
SDCL § 22-6-1 (Class B felony punishable by mandatory
life term without parole). In Mississippi, killing a child in
utero at any age after conception is a first degree murder.
284 F.3d 293 (1st Cir. 2002); Roberts v. Patel, 620 F.Supp. 323 (N.D.
Ill. 1985); Walker v. Mart, 164 Ariz. 37, 790 P.2d 735 (1990) (en
banc); Nold v. Pinyon, 272 Kan. 87, 31 P.3d 274 (2001); Draper v.
Jasionowski, 372 N.J.Super. 368, 858 A.2d 1141 (App. Div. 2004);
Ledford v. Martin, 87 N.C.App. 88, 359 S.E.2d 505 (1987); Miller
ex rel. Miller v. Dacus, 231 S.W.3d 903, 910-11 (Tenn. 2007); Jones
v. MetroHealth Med. Ctr, 89 N.E.3d 633, 662-663 (Ohio Ct.App.
2017); Randall v. United States, 859 F.Supp. 22, 31-33 (D.C.
1994); In re A.C., 573 A.2d 1235, 1239, 1246 n.13 (D.C. 1990). This
two-patient concept is recognized in other malpractice contexts.
See, e.g., Burgess v. the Superior Court of Los Angeles, 2 Cal.4th
1064, 831 P.2d 1197, 9 Cal.Rptr.2d 615 (1992); Ob-Gyn Associates
of Albany v. Littleton, 259 Ga. 663, 386 S.E.2d 146 (1989); In re
Certification of Question of Law from U.S. District Court (Farley),
387 N.W.2d 42 (S.D. 1986) (a wrongful death malpractice action
for the death of a stillborn child).
14
Miss. Code Ann. § 97-3-19; 37(1). It is punishable by life
imprisonment. Miss. Code Ann. § 97-3-21(1).
In short, the consent for an abortion: (1) authorizes
the physician to terminate the pregnant mother’s
constitutionally protected relationship with her child;
(2) authorizes the termination of the life of one of the
physician’s patients; and (3) immunizes the physician from
criminal prosecution for what is otherwise a criminal
homicide. P.P. v. Noem; Ridder, ECF 246, ¶¶14-18;
Hartmann, ECF 269, ¶29.
Thus, 48 years after Roe and 29 years after Casey,
this Court has yet to carefully define the conduct that Roe
asserted was protected as a Due Process liberty interest.
The Court must now acknowledge that an abortion is the
employment of a medical procedure to achieve a nonmedical objective: the termination of a pregnant mother’s
relationship with her child by terminating the life of the
mother’s child, a whole, separate, unique, living human
being, one of the doctor’s patients. The only reason the
physician who terminates the life of that child is not
criminally prosecuted is because this Court forced the
states to create an exception to their homicide statutes.
This Court forced that exception on the states without
carefully defining the conduct it declared protected, and
without understanding the incredible harm it would inflict
upon the true intrinsic rights of the mothers.
15
II. An Abortion is Not the Exercise of a Right; It is
the Waiver, Surrender and Termination of One of
the Most Important Fundamental Intrinsic Rights
a Mother Has in All of Life; Roe and Casey Have
Operated to Destroy that Right
Planned Parenthood v. Casey, 505 U.S. 833 (1992),
to justify continuing Roe’s regime, made numerous
statements which have proven incorrect.
Three such statements are pertinent here: (1) that the
“error” of Roe does not go “to the recognition afforded by
the constitution to the woman’s liberty,” Casey at 858; (2)
that without Roe, the state could force a pregnant mother
to have an abortion, Id. at 859; and (3) that there has been
“no development of constitutional law since” Roe that
has “implicitly or explicitly left Roe behind” as “obsolete
constitutional thinking.” Id. at 857.
Roe and Casey have proven destructive to one of the
most basic intrinsic rights of pregnant mothers.
A.
The Pregnant Mother has a Fundamental,
Intrinsic Right to Maintain Her Relationship
with Her Child
A pregnant mother has a fundamental liberty interest
in maintaining her existing relationship with her child,
and her personal interest in her child’s life and well-being.
1.
It is axiomatic that the term “liberty” extends beyond
mere freedom from physical restraint. Board of Regents,
16
et al. v. Roth, 408 U.S. 564, 572 (1972); Meyer v. Nebraska,
262 U.S. 390, 399 (1923).
To determine whether an “interest” is one protected
by Due Process, the Court must first describe the conduct
asserted to be a liberty. Glucksberg, 521 U.S. at 722-23;
Morrisey v. Brewer, 408 U.S. 471, 481 (1972); Graham
v. Richardson, 403 U.S. 365, 374 (1971). Protected are
interests “so rooted in the traditions and conscience of
our people as to be ranked as fundamental.” Snyder v.
Massachusetts, 291 U.S. 97, 105 (1934). The Court has
insisted upon respect for the teaching of history [and] solid
recognitions of the basic values that underlie our society.
Michael H. v. Gerald D., 491 U.S. 110, 122-123 (1989)
(quoting Griswold v. Connecticut, 381 U.S. 479, 501 (1965).
Employing these criteria – “tradition and history,”
“the conscience of our people,” and “recognition of
the basic values that underlie society,” the Court has
recognized as interests protected by Due Process those
fundamental to bringing up children and those “essential
to the orderly pursuit of happiness by free men.” Meyer,
262 U.S. at 399. There has been significant debate over the
precise definition of “deeply rooted traditions.” See, Moore
v. East Cleveland, 431 U.S. 494, 502 (1977); compare
Justice Scalia, Michael H., 491 U.S. 110, with dissents of
Justices Brennan, Id. at 136, and White, Id. at 157.
Regardless of the criteria employed, a mother’s
interest in her relationship with her child is protected
as a fundamental liberty (Santosky v. Kramer, 455 U.S.
745, 753, 759), and that fundamental liberty is protected
throughout pregnancy. Lehr v. Robertson, 463 U.S.
248, 260 n.16 (1983). That liberty interest in parental
17
relationships is derived from “intrinsic human rights.”
Smith v. Org. of Foster Families, 431 U.S. 816, 845 (1972).
That the mother’s relationship is a protected fundamental
liberty is supported by all applicable criteria, “tradition
and history;” the dictates of the natural and inalienable
rights of both mother and child; “the conscience of our
people,” and the “recognition of the basic values that
underlie society.”
A lthough closely related, a mother has three
identifiable interests protected throughout pregnancy: (1)
her interest in her existing relationship with her child; (2)
her personal interest in her child’s life and welfare; and
(3) her interest in her family as a unit. See, Santosky,
455 U.S. 745; Quilloin v. Walcott, 434 U.S. 246 (1978);
Smith, 431 U.S. 816 (1977); Prince v. Mass., 321 U.S.
158 (1944); Stanley v. Ill., 405 U.S. 645, 651-652 (1972);
Pierce v. Soc. of Sisters, 268 U.S. 510, 534-535 (1925).
The relationship of mother and child, especially during
pregnancy, is one traditionally cherished and protected,
and one which embodies some of the most basic values
upon which our entire society is built. Nothing would
shock the conscience of our people more than a declaration
that the most important, most intimate, most unique,
and most vulnerable of all familial relationships would
go unprotected by a Constitution which holds these
relationships as the touchstone and core of civilized
society. See, P.P. v. Noem, Concurrent Resolution, ECF
266-28, ID 4735. “Respect for human life finds ultimate
expression in the bond of love the mother has for her child.”
Gonzales v. Carhart, 550 U.S. 124, 159 (2007).
18
2.
The relationship between a parent and child is
protected as a fundamental liberty. Santosky, 455 U.S. at
753, 758-759. Troxel v. Granville, 530 U.S. 57, 65 (2000)
observed that it is perhaps the oldest recognized liberty,
first recognized in Meyer, 262 U.S. at 399 (1923), and
Pierce, 268 U.S. at 534-535 (1925). This liberty has its
source “in intrinsic human rights, as understood in ‘this
Nation’s history and tradition.’” Smith, 431 U.S. at 845
(quoting Moore, 431 U.S. at 503).
The interest protected is the interest in the
relationship itself, as demonstrated by cases addressing
the circumstances in which the relationship of a biological
father is recognized as protected. Compare, Stanley, 405
U.S. 645, and Caban v. Mohammed, 441 U.S. 380, 389 n.7
(1979) (making the point explicitly and finding father’s
interests protected) with Quilloin, 434 U.S. at 248, and
Lehr, 463 U.S. at 261 (father’s interest not protected).
In contrast, the pregnant mother’s interest in her
relationship with her child is always protected as a
fundamental liberty. “The mother carries and bears the
child, and in this sense her parental relationship is clear.”
Caban, 441 U.S. at 397 (Stewart, J., dissenting)).8 “Fathers
and mothers are not similarly situated with regard to the
8. Interrelated with the pregnant mother’s right to maintain
her relationship with her child is her fundamental right to
procreate. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). If it can
be said that her right to procreate is satisfied upon conception,
that right, being “one of the basic rights of man” (Id.), is rendered
meaningless if the mother’s resulting relationship with her child
in utero is left unprotected.
19
proof of biological parenthood.” Nguyen v. I.N.S., 533 U.S.
53, 63 (2001) (citing Lehr).
Because the parents’ rights are fundamental,
substantive Due Process forbids a state to terminate a
parent’s relationship with her child unless it can prove
by clear and convincing evidence the parent is unfit.
Santosky, 455 U.S. at 757-759.
While Santosky arises in the context of an “involuntary”
termination, the state cannot circumvent requirements of
Due Process by statutorily authorizing terminations it
labels “voluntary,” without ensuring that the mother’s
consent to terminate is truly voluntary and informed.
A mother’s relationship w ith her child during
pregnancy is so intimate that the unique bond between
them creates a human relationship which may be the most
rewarding in all of human experience. P.P. v. Noem; Task
Force Report, ECF 267-51, ID 5147-50, 5160.
“If there are any self-evident and universal
truths that can act for the human race as
a guide or light in which social and human
justice can be grounded, they are these: . . .
that the cherished role of a mother and her
relationship with her child, at every moment
of life, has intrinsic worth and beauty; that the
intrinsic beauty of motherhood is inseparable
from the beauty of womanhood; and that this
relationship, its unselfish nature and its role in
the survival of the race is the touchstone and
core of all civilized society. Its denigration is the
denigration of the human race.” P.P. v. Noem;
Concurrent Resolution, ECF 266-28, ID 4735.
20
South Dakota’s 2005 Informed Consent Statute required
a physician to disclose, prior to taking a consent, “that
the pregnant woman has an existing relationship with
that unborn human being and that the relationship enjoys
protection under the United States Constitution.” SDCL §
34-23A-10.1(c). In the Rounds case, Planned Parenthood
claimed that that disclosure was unconstitutional as a false
statement of fact and law. Planned Parenthood Minn.,
N.D., S.D., et al. v. Rounds, et al., 4:05-c-04077-KES,
ECF145, p.12-13. The district court granted Plaintiffs
summary judgment and, on appeal, Plaintiffs again
argued that the disclosure was false. Rounds, Docket No.
09-3233, ID 3652535 (Plaintiffs’ Brief, p.29-47).
The Eighth Circuit reversed, upholding the provision
as a true statement. Planned Parenthood et al., v. Rounds,
et al., 653 F.3d 662 (8th Cir. 2011).
It is absurd to suggest that if Roe had not found a
“right to an abortion” that a state could force a pregnant
mother to submit to an abortion. The pregnant mother’s
relationship with her child is protected as a fundamental
intrinsic right and no state can force a pre-birth
termination of any kind, no less by mandatory killing of
her child.
21
B. Because Roe and Casey have Prohibited
the States from Providing Meaning ful
Protections for the Pregnant Mother’s Right
to Her Relationship, Mothers are Losing Their
Children Against Their Will
1.
The Primary Decision
It is widely recognized, and Planned Parenthood’s
Medical Director admitted, that “the right that a mother
has to keep her relationship with her child is one of the
greatest rights that a mother would have in her lifetime,”
and that relationship “can give great joy and benefit to the
mother.” See, also, SDCL § 34-23A-85; P.P. v. Noem, Ball,
ECF 266-1, ID 4605; Task Force Report, ECF 267-51, ID
5160-62; Grossman, ECF 256,¶16, ID 4166-67; Casey, ECF
255,¶34, ID 4085-86; Coleman, ECF 257,¶17, ID 4192-93.
The primary critical decision a pregnant mother faces
is whether she should keep her relationship with her child.
Id., Ridder, M.D.,ECF 246,¶¶6,7,ID 3733-35; Hartmann,
M.D., ECF 269,¶¶34-40, ID 5283-86; Casey, ECF 255,¶¶
2, 56-59, ID 4069-70; Coleman, ECF 257, ¶17, ID 4192-93;
Grossman, ECF 256,¶¶13,16, ID 4164-65.
Planned Parenthood’s Medical Director admitted
that the pregnant mother’ decision, whether to keep or
terminate her relationship with her child, is one of the
greatest, most difficult and consequential decisions she
will face in all of life. Ball, ECF 266-2, ¶¶49:23-50:17, ID
4608-09; Ridder, ECF 247,¶¶12-15, ID 3917-19,; Casey,
ECF 255, ¶¶34;63, ID 4084-5; 4106-7; Hartmann, ECF
269, ¶¶124-127, ID 5333-34; Coleman,ECF257,¶17,ID419293;id., Grossman, ECF 256, ¶¶8-17, ID 4163-67; Abby
Johnson, ECF 211, ¶14, ID 3325.
22
Planned Parenthood’s Medical Director acknowledged
that the mother’s decision whether or not to keep her
relationship with her child is not a medical decision. Id.
Ball, ECF 266-3,ID 4612, Moore, ECF 266-4,ID 4615-16;
Ridder, ECF 246, ¶¶7, 8, ID 3734-35; Hartmann, ECF 269
¶¶34-40, ID 5283-86; Casey, ¶¶34-35;54;56, ID 4084-85,
4096-98.
Thus, the primary question faced by the pregnant
mother is not a medical question.
2.
Pregnant Mothers are Routinely Coerced
and Pressured into Abortions, and the
Derelict Practices of Abortion Clinics
Exacerbate the Coercion
(a)
Pregnant mothers are routinely coerced or pressured
into abortions they do not want. P.P. v. Noem, Declarations
of B.H., ECF 206; Weston, ECF 207; Alyssa Carlson, ECF
209; S.C., 208; Amrutha Bindu Mekala, ECF 217; Ayers,
ECF 218; Deere, ECF 353; Roden, ECF 219; Corbett,
ECF 220; Watson, ECF 221; Miller, ECF 222; Bowlin,
ECF 223; McAdams, ECF 224; Steen, ECF 225; Cota,
ECF 226; Hurguy, ECF 227; Szmeit, ECF 228; Kiefer,
ECF 239; and Florczak-Seeman, ECF 238.
Pregnant mothers are routinely coerced into abortions
at abortion clinics, P.P. v. Noem; Bindu Mekala, ECF 217;
Ayers, ECF 218; Roden, ECF 219; Corbett, ECF 220;
Watson, ECF 221; Miller, ECF 222. Pregnant mothers are
routinely pressured into abortions by the abortion clinic
staff. P.P. v. Noem; Huffstetler, ECF 229; Holcomb Misely,
23
ECF 268; Bowlin, ECF 223; McAdams, ECF 224; Ruch,
ECF 230; Steen, ECF 225; Cota, ECF 226; Hartman ECF
231; Hurguy, ECF 227; Szmeit, ECF 228; Coleman, ECF
257, ¶32 ID 4203; Hartmann, ECF 269 ¶79, ID 5306.
Some pregnant mothers coerced into abortions
are so traumatized they commit suicide. P.P. v. Noem,
Declaration of George Zallie (who found his 21-year-old
daughter hanging from her bedroom fan at the family’s
home), ECF 233. Women pressured to have an abortion
after a forcible rape, testify that the abortion was like
a second rape, only far worse than the first. Id. Lisa
Hartman, ECF 231, ¶10, ID 3504.
Studies show a leading cause of death among pregnant
mothers is murder, and most of those murders are
performed by their male partners. P.P. v. Noem, Coleman,
ECF 257, ¶35, ID 4204-5; see, 79 documented cases of
pregnant mothers murdered because they refused to have
an abortion, Coleman, Exhibit D.
In an exhaustive survey of 987 post-abortive women,
over half stated their abortions were coerced or pressured,
34% stated that abortion clinic personnel pressured them
to have an abortion, and 84.6% wished that just one person
offered the support they needed to carry to term. P.P. v.
Noem, Coleman, ECF 257 ¶61, ID 4218.
In 2013, the American College of Obstetricians
and Gynecologists issued Committee Opinion 554,
“Reproductive and Sexual Coercion,” stating that
“pregnancy coercion” is a serious cultural problem which
includes threats or acts of violence to compel women to
terminate a pregnancy. Declarations of Coleman, ECF
257,¶38, ID 4205-6; Hartmann, ECF 321, ¶114, ID 5326-7.
24
Coerced abortions are so widespread that in 2009 the
Center Against Forced Abortions (“CAFA”) was created,
and CAFA’s national network of attorneys provide pro
bono legal services for pregnant mothers who seek help
because they are being coerced into an abortion. CAFA
has saved between 10,000 to 20,000 pregnant mothers
from coerced abortions. Id., Parker, ECF 248, ¶¶2-12,
ID 3922-3927.
Pregnancy help centers throughout the nation counsel
large numbers of women victimized by coerced abortions.
Id., Declarations of Florczak-Seeman, ECF 238; Kiefer,
ECF 239; Corbett, ECF 220; Cota, ECF 226; Collins, ECF
240; Hjemfelt, ECF 242; Martinez, ECF 241; Wollman,
ECF 243; Unruh, 5/1/2020, ECF 264; Unruh, 7/1/2011,
ECF 263; Erica Miller, ECF 237; Travis Lasseter, ECF
265.
Good Counsel, Inc., which provides free maternity
housing, has counseled thousands of post-abortive
women, a significant percentage of whom were coerced or
pressured into abortions. Almost all of the mothers Good
Counsel houses are homeless because they were forced
out of their homes for refusing to have an abortion. Id.
Bell, ECF 261,¶4, ID 4537-8. Many other shelters provide
living arrangements for pregnant mothers because they
are being coerced to have abortions. Id., Sandra Ramos,
ECF 259.
Dorothy Wallis has worked with many hundreds of
pregnancy help centers, where post-abortive women
report that: they were coerced by threats of violence;
abortion clinic personnel pressured them into an abortion;
or no one would help them keep their babies. Id., Wallis,
ECF 258, Ex. A, p.10-11, ID 4505-6.
25
(b)
In addition to the testimony of the women, former
abortion clinic doctors and clinic managers have verified
the negligence and dereliction of abortion clinics. Id.,
Declarations of Giebink, M.D., ECF 232; Thayer, ECF 210;
Johnson, ECF 211; Lancaster, ECF 212;, Trevino, ECF
213; Padilla, ECF 214; Everett, ECF 215; Behrhorst, ECF
216. Surgery is scheduled over the phone, it is assumed
that the mother decided to have an abortion before she
arrives, consent is taken for surgery, payment is made
without any counseling and no regard is given to the
mother’s interest in her relationship with her child. Id.,
Declarations of Giebink, M.D., ECF 232; Thayer ECF
210; Johnson, ECF 211; Lancaster, ECF 212; Trevino,
ECF 213; Padilla, ECF 214; Everett ECF 215;Behrhorst
ECF 216.
Thus there is no physician-patient relationship at
abortion clinics (Id. Thayer, ECF 201, ¶14, ID 3305; Id.
Giebink, M.D., ECF 232 ¶28, ID 3517) and clinics perform
unethical itinerant surgery. Id. Ridder, M.D., ECF 246,
¶¶35-38, ID 3747-3749; Id. Hartmann, M.D., ECF 269,
¶66, ID 5298-9.
Planned Parenthood and other clinics pressure their
staffs to “sell” abortions, and steer, mislead, and pressure
ambivalent pregnant mothers to have abortions. Id.
Giebink, M.D., ECF 232 ¶¶22,23, ID 3515-16; Thayer ECF
210 ¶¶11-16, ID 3303-3306; Johnson, ECF 211 ¶¶16-24,
ID 3326-3330; Lancaster, ECF 212, ¶¶12-16, ID 333638; Trevino, ECF 213, ¶¶5-15, ID 3341-46; Padilla, ECF
214, ¶¶16-19, ID 3352-32; Everett, ECF 215, ¶¶3-9, ID
3357-3373; Behrhorst, ECF 216, ¶¶7-11, ID 3411-3412.
26
B.H., ECF 206; Weston, ECF 207; Ayers, ECF 218; S.C.,
ECF 208.
It is so common for abortion clinics to perform
abortions on mothers who are ambivalent that pregnant
mothers seek help to stop medical abortions after they are
started. A national network of physicians arose to help
these women stop medical abortions and to give birth to
children they want. Id., Davenport, MD, ECF 260.
Even when it is obvious that a pregnant mother is being
pressured or coerced into an abortion, the clinics still push
her to an abortion. Id., Declarations of Thayer, ECF 201,
¶24, ID 3309; Johnson, ECF 211, ¶¶16-22, ID 3326-3329;
Lancaster, ECF 212 ¶¶13-15, ID 3336-3337;Weston, ECF
207; B.H, ECF 206.; Vixie Miller, ECF 222.
III. Because Roe and Casey are Used to Prohibit the
States from Providing any Meaningful Protection
of the Pregnant Mothers’ Interests, the Mothers’
Due Process and Equal Protection Rights Are
Being Violated
A.
General Considerations
Roe and Casey have operated to prohibit states from
imposing protections of the pregnant mother’s intrinsic
right to maintain her relationship with her child. By way
of example, South Dakota passed an Anti-Coercion Statute
intended to protect the mother’s fundamental interest in
her relationship with her child by requiring mandatory
counseling at a registered pregnancy help center such as
Amicus Curiae Alpha Center. SDCL 32-23A-56(3). The
registered pregnancy center is highly regulated, their
27
counseling can only be provided by a licensed professional
and the counseling is limited to matters pertaining to the
“preliminary question” of whether or not the pregnant
mother should keep or terminate her relationship with her
child. They are prohibited from discussing the abortion
procedure, its risks, and engaging in a discussion about
religion. SDCL §§ 32-23A-58, 58.1; SDCL 32-23A-59.
That statute was expressly intended to protect the
rights of the pregnant mother against coercion and
pressure. SDCL 32-23A-54 (1) to (5).
South Dakota found that:
“It is a necessary and proper exercise of
the State’s authority to give precedence to
the mother’s fundamental interest in her
relationship with her child over the irrevocable
method of termination of that relationship
by induced abortion.”SDCL § 32-23A-54(5)
(emphasis added).
That well-thought-out statute was preliminarily enjoined
based on Roe and Casey.9 As a result of that injunction,
based on this Court’s decisions in Roe and Casey, pregnant
mothers in South Dakota have lost the benefit of the law’s
protection, and they continue to be coerced into abortions
resulting in the loss of the children they want. See, P.P. v.
Noem, Declarations of B.H., ECF 206; and L.M., ECF 302.
9. The motion to dissolve that preliminary injunction is
currently pending and it is expected that the case involving South
Dakota’s Anti-Coercion Statute will be in the Eighth Circuit this
fall.
28
B. Roe and Casey Have Operated to Prohibit
Reasonable and Necessary Exercise of the
State’s Authority to Protect the Fundamental
Rights of Pregnant Mothers Resulting in the
Violation of Their Due Process and Equal
Protection Rights
Because of the holdings in Roe and Casey, every state
has been compelled to expressly authorize a physician to
terminate a pregnant mother’s constitutionally protected
relationship by an abortion. See, e.g., SDCL § 34-23A-2-5.
1.
The Tension and Conflict Between Two
Distinct Liberty Interests
There is a natural tension and conflict between two
distinctly different interests identified by the Supreme
Court: the pregnant mother’s fundamental intrinsic
right to maintain her relationship with her child; and the
“liberty” fashioned by Roe.
The “liber ty” announced in Roe involves the
irrevocable termination of the fundamental intrinsic
right referenced in the Santosky, Stanley, and Lehr line
of cases. That “liberty” and that right are in conflict;
one protects the relationship, the other is employed to
terminate it.
The mother’s fundamental intrinsic right to her
relationship and the natural conflict between the two
distinct liberty interests has never been raised and
discussed in a case challenging a statute regulating
abortion. Until South Dakota passed its 2005 Informed
Consent Statute and its 2011 Anti-Coercion Statute, no
29
state had identified the mother’s fundamental intrinsic
right to maintain her relationship as an interest that the
state sought to protect by regulating abortions. Abortion
providers only raised the interest they wanted to promote,
an interest to “have an abortion.”
Thus, while the pregnant mothers’ fundamental
intrinsic right to maintain their relationship with their
children has always been recognized by the Supreme
Court – Troxel v. Granville, 530 U.S. 57, 65 (2000) states
it is perhaps the oldest recognized Due Process liberty
interest – and the interest in “terminating a pregnancy”
has been recognized since 1973, until now, no court has
been asked to reconcile the inherent conflict between the
two liberty interests.
Under proper application of constitutional principles,
no state can legitimately authorize such termination
without providing minimum Due Process protections and
Equal Protection of the law. South Dakota’s Informed
Consent and Anti-Coercion Statutes impose the minimum
safeguards necessary to protect the mothers’ Due Process
and Equal Protection Rights.
2.
Due Process
An abortion is the employment of a medical procedure
to achieve a non-medical objective: the termination of the
pregnant mother’s relationship with her child. See. Pt. I,
supra. The intentional killing of a human being in utero, at
any age, is a criminal homicide,10 but states are compelled
by Roe and Casey to immunize a physician who performs
10. See Footnote 6, supra.
30
an abortion on the condition that he obtains a voluntary
consent. See, e.g., SDCL § 22-16-1.1.
Such a consent constitutes a waiver of one of the most
important fundamental rights a mother has in all of life.
No state can expressly authorize an uninformed or
involuntary termination of a fundamental right. The state
is obligated to ensure that a consent to terminate or waive
such a right is informed and voluntary, especially where
the state authorizes what would otherwise be a criminal
homicide to achieve that waiver.
“It has been pointed out that ‘courts indulge
every reasonable presumption against waiver’
of fundamental constitutional rights and that
we ‘do not presume acquiescence in the loss of
fundamental rights.’” Johnson v. Zerbst, 304
U.S. 458, 464-65 (1938) (quoting Aetna Ins. Co.
v. Kennedy, 301 U.S. 389, 393 (1937)).
For example, without voluntary informed consent, a
state cannot terminate or authorize the termination of
a parent’s relationship with her child on the basis of the
child’s best interest, but must establish unfitness by clear
and convincing evidence. Santosky, 455 U.S., at 753. Those
Due Process requirements apply even if the state is not
the party seeking the termination. M.L.B. v. S.L.J., 519
U.S. 102 (1996). Few acts authorized or performed by the
state are “so severe and so irreversible” as the termination
of a mother’s relationship with her child. Id., at 118 (citing
Santosky, at 758-759).
A state cannot circumvent the obligation to protect
the mother’s fundamental right to her relationship by
31
merely labeling a termination “voluntary” – thereby
circumventing the obligation to provide protections
required in “involuntary” terminations – without imposing
protections to ensure the terminations are voluntary.
A state that fails to provide such protections violates
the mother’s substantive Due Process rights. Yet, Roe and
Casey require them to do so.
3.
Equal Protection
“Equal protection” is “a pledge of the protection
of equal laws.” Yick Wo v. Hopkins, 118 U.S. 356,
369 (1886). Those who are similarly situated must be
similarly treated. Plyer v. Doe, 457 U.S. 202, 216 (1982);
F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415
(1920). Where fundamental personal rights are involved,
the classification must be justified by a compelling state
interest. Weber v. Aetna, 406 U.S. 164, 175 (1972); Clark
v. Jeter, 486 U.S. 456, 461 (1988).
(a) “Voluntary” Termination
States uniformly impose strict protections for a
pregnant mother’s fundamental right to maintain her
relationship with her child, by ensuring that “voluntary”
terminations of that right, in the context of adoption, are
truly voluntary.
A pregnant mother considering termination of her
rights has the same rights and interests at stake, whether
termination is achieved by abortion or adoption. But
states, as South Dakota has found, are prohibited by Roe
and Casey to provide equal protection of the mother’s
rights in the context of abortion.
32
(b) The Criminal Homicide Exception
Thirty-eight states (see, Footnote 6) protect the
relationship of all pregnant mothers with their children
by making it a criminal homicide to kill the child in utero.
See, e.g., SDCL § 22-16.1;§ 22-16-1.1; Miss. Code Ann. §
97-3-19; § 97-3-37(1). However, all states are compelled
by Roe and Casey to create a class of mothers who are
denied the protection of those statutes which protect the
mother’s fundamental right. The states are forced to
expressly authorize the physician to terminate the life of
the mother’s child.
CONCLUSION
It is time for this Court to carefully define the conduct
which Roe declared protected, and rectify the errors of
Roe and Casey.
Respectfully submitted,
Harold J. Cassidy
Counsel of Record
Joseph R. Zakhary
Derek M. Cassidy
Thomas J. Viggiano, III
The Cassidy Law Firm LLC
750 Broad Street, Suite 3
Shrewsbury, New Jersey 07702
(732) 747-3999
hjc@thecassidylawfirm.com
Counsel for Amici 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.