Amicus Brief — Williams v. Zbaraz
Supreme Court brief1980
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IN THE
Siren Court of thy United States
OCTOBER TERM, 1979
No. 79-4
JASPER F. WILLIAMS AND EUGENE F. DIAMOND,
V. Appellants
DAVID ZBARAZ, et al.,
Appellees
No. 79-5
JEFFREY C. MILLER, ACTING DIRECTOR, ILLINOIS
DEPARTMENT OF PUBLIC AID,
Vv. Appellant
DAVID ZBARAZ, et al.,
dina. Appellees
No. 79-491
UNITED STATES OF AMERICA,
V. Appellant
DAVID ZBARAZ, et al.,
Appellees
On Appeals from the United States District Court
for the Northern District of Illinois
BRIEF OF AMICI CURIAE PLANNED PARENTHOOD
FEDERATION OF AMERICA, INC., ASSOCIATION
OF PLANNED PARENTHOOD PHYSICIANS, INC.,
AMERICAN PUBLIC HEALTH ASSOCIATION,
NATIONAL ABORTION FEDERATION, AMERICAN
ASSOCIATION OF SEX EDUCATORS, COUNSELORS
AND THERAPISTS, SOCIETY FOR ADOLESCENT
MEDICINE, ASSOCIATION FOR WOMEN IN
PSYCHOLOGY, NATIONAL URBAN LEAGUE, INC.,
THE AMERICAN JEWISH CONGRESS, AND CERTAIN
MEDICAL SCHOOL DEANS, PROFESSORS AND
INDIVIDUAL PHYSICIANS
IN SUPPORT OF THE APPELLEES
(Narnes of Individual Amici appear within)
[ Attorneys listed on inside cover]
WILSON - EPES PRINTING Co.. INC. - 789-0096 - WASHINGTON, D.C. 20001
MArGO K. ROGERS
JOHN E. HEINTZ
KAREN H. ROTHENBERG
BINGHAM B. LEVERICH
Covington & Burling
888 Sixteenth Street, N.W.
Washington, D.C. 20006
Attorneys for Amici Curiae
Of Counsel:
Eve W. PAUL
Planned Parenthood Federation
of America, Inc.
February 1980
INDIVIDUAL AMICI *
Edward C. Allred, M.D.
5862 S. Auglon
Los Angeles, California 90003
John M. Anderson, M.D.
Suite 406
20 South Park Street
Madison, Wisconsin 53715
William C. Andrews, M.D.
903 Medical Tower
Norfolk, Virginia 23507
Donald S. Barber, M.D.
Washington Highway
Morrisville, Vermont 05661
Maxwell M. Barr, M.D.
6490 Excelsior Boulevard
Minneapolis, Minnesota 55403
M. Aslam Barra, M.D.
928 Medical Center Drive
Bessemer, Alabama 35020
Jan M. Barton, M.D.
c/o American Women’s
Medical Group
2744 N. Western Avenue
Chicago, Illinois 60647
Herbert Bauer, M.D.
1117 E. Genesee Street
Syracuse, New York 13210
John W. Beasley, M.D.
777 South Mills Street
Madison, Wisconsin 53715
Robert Beck, M.D.
320 Willon
Walla Walla, Washington
Lloyd J. Benjamin, M.D.
127 Eureka Canyon Road
Watsonville, California 95076
Ralph C. Benson, M.D.
Professor & Chairman Emeritus
University of Oregon
Health Sciences Center
Portland, Oregon 97201
Robert W. Berliner, M.D.
Dean
Yale University School of
Medicine
333 Cedar Street
New Haven, Connecticut
Marion H. Bertling, M.D.
2312 Princess Ann Street
Greensboro, North Carolina
27408
Captain Peter C. Bigler,
USNR, M.D.
6843 Lake Charlene Drive
Pensacola, Florida 32506
David B. Bingham, M.D.
White Birch Road
Salem, Connecticut 06415
F. J. Bonte, M.D.
Dean
The University of Texas
Southwestern Medical School
5323 Harry Hines Boulevard
Dallas, Texas 75235
Clarence W. Boone, M.D.
2200 Grant Street
Gary, Indiana 46404
N. Edward Boyce, Jr., M.D.
Clinical Instructor Ob/Gyn
North California School
of Medicine
5 Bon Air Road
Larkspur, California
* Titles and affiliations for identification purposes only.
Charles A. Bradley, M.D.
5333 Hollister Avenue, Suite 210
Santa Barbara, California 93111
J. Robert Bragonier, M.D.
1000 West Carson Street
Torrance, California 90509
Benjamin N. Branch, M.D.
Box 248
Kahuku, Hawaii 96731
William E. Beaver, M.D.
Stonebridge Drive
Chapel Hill, North Carolina
27514
Elizabeth Brenner, M.D.
679 Weschester Road
Grosse Point Park, Michigan
48230
Thomas F. Britton, M.D.
1200 SE Morrison
Portland, Oregon 97214
Herbert P. Brown, M.D.
401 W. Summit Avenue
San Antonio, Texas 78212
Stephen C. Buchanan, M.D.
No. 116
4324 Cedar Springs
Dallas, Texas 75219
Manuel F. Bunyi, M.D.
Belle Glade Health Center
1024 N.W. Avenue Drive
Belle Glade, Florida 33430
Michael S. Burnhill, M.D.
Department of Ob/Gyn
Middlesex General Hospital
180 Somerset Street
New Brunswick, New Jersey
08901
T. P. Cantu, M.D.
Obstetrical Associates of Laredo
P.O. Box 1668
Laredo, Texas 78041
Robert C. Castadot, M.D.
Chief of Department Ob/Gyn
Baltimore City Hospital
4940 Eastern Avenue
Baltimore, Maryland 21224
Lars L. Cederqvist, M.D.
530 East 70th Street
New York, New York 10021
Ben Celniker, M.D.
4700 N. 51st Avenue
Phoenix, Arizona 85031
David Chafey, M.D.
Calle 2, No. 55
Ext. Villamar
Santurce, Puerto Rico 00913
Thomas C. Chalmers, M.D.
190 Locust Avenue
Rye, New York 10580
Kenneth J. Chapman, M.D.
3726 Olentangy River Road
Columbus, Ohio 43214
Sudha Chauduri, M.D.
1001 E. 47th Street
Kansas City, Missouri 64110
Nanie! Chester, M.D.
810 South 12th
McAllen, Texas 78501
Lawrence Collier, M.D.
99 N. Broadway
Tarrytown, New York 10591
Nadia H. Comvalius, M.D.
30 E. 65th Street
New York, New York 10021
Elizabeth B. Connell, M.D.
1163 Green Bay Road
Glencoe, Illinois 60022
Cynthia W. Cooke, M.D.
133 S. 36th Street
Room 514
Philadelphia, Pennsylvania 19104
a
Elizabeth M. Conard-Corkey
519 Hermitage Court
Charlotte, North Carolina 28207
Nicholas J. Cotsonas, Jr., M.D.
21 Spinning Wheel Road
Hinsdale, Illinois 60521
J. Thomas Cox, M.D.
5 Bon Air Road
Larkspur, California 94939
Robert D. Coye, M.D.
Dean
Wayne State University
School of Medicine
540 East Canfield
Detroit, Michigan 48201
Takey Crist, M.D.
Director
Crist Clinic for Women
Jacksonville, North Carolina
28340
John C. Cutler, M.D.
210 S. Dallas Avenue
Pittsburgh, Pennsylvania 15208
Philip D. Darney, M.D.
University of Oregon
School of Medicine
Department of Obstetrics
& Gynecology
Portland, Oregon 97201
Ezra L. Davidson, Jr., M.D.
Professor & Chairman
Department of Obstetrics
& Gynecology
Charles R. Drew
Postgraduate Medical School
Martin Luther King, Jr. Hospital
12021 Wilmington Avenue
Los Angeles, California 90059
Joseph E. Davis, M.D.
595 Madison Avenue
New York, New York 10022
Quentin Dehaan, M.D.
Medical Arts Center
4600 N. Habana Avenue
Tampa, Florida 33614
Charles A. Deprosse, M.D.,
M.P.H.
Department of Obstetrics
& Gynecology
University of lowa Hospitals
& Clinics
Iowa City, Iowa 52242
George C. Denniston, M.D.,
M.P.H.
President
Population Dynamics
3829 Aurora Avenue North
Seattle, Washington 98103
Helen O. Dickens, M.D.
Hospital of University of
Pennsylvania
Department of Obstetrics
& Gynecology
1000 Courtyard Building
3400 Spruce Street
Philadelphia, Pennsylvania 19104
Preston V. Dilts, Jr., M.D.
Professor and Chairman
Department of Obstetrics
and Gynecology
University of Tennessee
853 Jefferson Avenue
Memphis, Tennessee 38163
Janet T. Dingle, M.D.
12526 Cedar Road
Cleveland, Ohio 44106
Alfred B. Dixon, M.D.
610 N. Howard Street
Baltimore, Maryland 21201
Maynard D. Driver, M.D.
3031 Telegraph Avenue
Berkeley, California 94705
Leo J. Dunn, M.D.
Professor & Chairman
Department of Obstetrics
& Gynecology
Medical College of Virginia
Virginia Commonwealth
University
1200 E. Broad Street
Richmond, Virginia 23298
Robert H. Ebert, M.D. ~-
Chairman of the Board
Population Council
1 Dag Hammarskjold Plaza
New York, New York 10017
Kenneth Edelin, M.D.
Professor and Chairman
Department of Obstetrics
& Gynecology
Boston University School
of Medicine
80 East Concord Street
Boston, Massachusetts 02118
Eduard Eichner, M.D.
Severance Medical Arts Building
Room 712
Cleveland, Ohio 44118
E. H. Elahi, M.D.
Professor
Obstetrics & Gynecology-
Public Health
Cornell University
Medical School
43-70 Kissena Boulevard
Flushing, New York 11355
Johan W. Eliot, M.D.
School of Public Health
University of Michigan
Ann Arbor, Michigan 48109
Robert S. Ellison, M.D.
624 W. Duarts Road
Arcadia, Colorado 91006
Marsha Epstein, M.D.
President
Los Angeles County Medice’
Women’s Association
6221 Wilshire Boulevard
Los Angeles, California 90048
Jesse Espinola, M.D.
5 W. Washington Avenue
Washington, New Jersey 07882
Hiroko T. Felton, M.D.
Century Road
Palisades, New York 10964
Elise H. Field, M.D.
208 West High
Urbana, Illinois 61801
Ruth Finkelstein, M.D.
801 Medical Arts Building
Baltimore, Maryland 21201
Katherine Finseth, M.D.
Planned Parenthood
of Santa Clara County
17 N. San Pedro
San Jose, California 95110
William G. Fitzhugh, M.D.
2016 Monument Avenue
Richmond, Virginia 23220
Victor L. Flagiello, D.O.
510 E. Caesar Avenue
Kingsville, Texas 78363
Emanuel Fliegelman, D.O.
Oak Hill Estates, 8E
Penn Valley, Pennsylvania 19072
Charles E. Flowers, Jr., M.D.
Professor and Chairman
Departrent of Obstetrics
& Gynecology
The University of Alabama
in Birmingham
University Station
Birmingham, Alabama 35294
Helen H. Fornwalt, M.D.
231 Old Gulph Road
Wynnewood, Pennsylvania 19096
Lise Fortier, M.D.
4900 Woodley
Encino, California 91436
Henry W. Foster, Jr., M.D.
Professor and Chairman
Department of Obstetrics
& Gynecology
Meharry Medical College
1005 18th Avenue North
Nashville, Tennessee 37208
Richard Frank, M.D.
2626 Lakeview
Chicago, Illinois 60614
Fritz Fuchs, M.D.
Uris Professor of
Reproductive Biology
Professor of Obstetrics
& Gynecology
Cornell University
Medical College
New York, New York 10021
Paul Funk, M.D.
11311 Shaker Boulevard
Cleveland, Ohio 44104
Ira W. Gabrielson, M.D.
1639 Monk Road
Gladwyne, Pennsylvania 19035
Mary O. Gabrielson, M.D.
1639 Monk Road
Gladwyne, Pennsylvania 19035
Merritt F. Garland, Jr., M.D.,
M.P.H.
Preventive Medicine
Administration
P.O. Box 13528
Baltimore, Maryland 21203
Richard S. Gelick, D.O.
1335 W. Tabor Road
Philadelphia, Pennsylvania 19141
Gwen P. Gentile, M.D.
100 East 38th Street
Brooklyn, New York 11203
Edwin M. Gold, M.D.
Women & Infants Hospital
50 Maude Street
Providence, Rhode Island 02908
Seymour Goldstein, M.D.
1422 Fresno Road
Wilmington, Delaware 19803
George G. Goler, M.D.
11811 Shaker Boulevard
Cleveland, Ohio 44120
Myron Gordon, M.D.
Metropolitan Hospital
1901 First Avenue
New York, New York 10029
Mary Jane Gray, M.D.
Department of Obstetrics
& Gynecology
University of North Carolina
Chapel Hill, North Carolina
27514
Gerald R. Greene, M.D., M.P.H.
Department of Pediatrics
UCI Medical Center
101 City Drive South
Orange, California 92668
Sadja Greenwood, M.D.
201 Edgewood Avenue
San Francisco, California 94117
Gordon P. Griggs, M.D.
10 Congress Street
Suite 400
Pasadena, California 91105
John G. Guju, M.D.
435 Gypsy Lane
Youngstown, Ohio 44504
John Hales, M.D.
835 Ocean Avenue
Brooklyn, New York 11226
J. G. Hallatt, M.D.
5640 Las Lomas
Long Beach, California 90815
Mildred Hanson, M.D.
2217 Nicollet Avenue
Minneapolis, Minnesota 55404
Arthur L. Haskins, M.D.
Professor and Head
Department of Obstetrics
& Gynecology
University of Maryland Hospital
Baltimore, Maryland 21201
H. M. Hasson, M.D.
2424 North Clark Street
Chicago, Illinois 60614
Robert A. Hatcher, M.D., M.P.H.
Associate Professor of
Gynecology & Obstetrics
Emory University School
of Medicine
80 Butler Street
Atlanta, Georgia 30303
T. Terry Hayashi, M.D.
Chief of Obstetrics & Gynecology
Magee Womens Hospital
Forbes & Halket
Pittsburgh, Pennsylvania 15213
Louis M. Hellman, M.D.
2475 Virginia Avenue
Washington, D.C. 20037
C. H. Hendricks, M.D.
Professor and Chairman
Obstetrics & Gynecology
University of North Carolina
Chapel Hill, North Carolina
27514
Marvin P. Hennisch, M.D.
99 North Broadway
Tarrytown, New York 10591
Warren M. Hern, M.D.
1130 Alpine
Boulder, Colorado 80302
Lawrence L. Hester, Jr., M.D.
Professor and Chairman
Department of Obstetrics
& Gynecology
Medical University
of South Carolina
171 Ashley Avenue
Charleston, South Carolina 29403
J. Gilberto Higuera, M.D.
18700 Woodward Avenue
Highland Park, Michigan 48203
R. J. Hildebrandt
Polyclinic Medical Center
Harrisburg, Pennsylvania 17105
J. Brooks Hoffman, M.D.
i Pennyridge Road
Greenwich, Connecticut 06830
George R. Huggins, M.D.
3400 Spruce Street
Philadelphia, Pennsylvania 19104
Andrew D. Hunt, M.D.
Coordinator
Medical Humanities Program
A110 E. Fee Hall
Michigan State University
East Lansing, Michigan 48824
Frank R. Hurlbutt, M.D.
1164 Bishop Street
Honolulu, Hawaii 96813
David F. James, M.D.
235 East 67th Street
New York, New York 10021
Paul C. Jenks, M.D.
Taylor-Brown Medical Center
P.O. Box 111
Waterloo, New York 13165
Harry S. Jonas, M.D.
2411 Holmes
Kansas City, Missouri 64108
John B. Josimovich
Medical Director
Planned Parenthood
Essex County
15 William Street
Newark, New Jersey 07102
Irwin H. Kaiser, M.D.
Director-Professor
Department of Obstetrics
& Gynecology
The Hospital of Albert Einstein
College of Medicine
1825 Eastchester Road
Bronx, New York 10461
Harold A. Kaminetzky, M.D.
100 Bergen Street
Newark, New Jersey
Barry M. Kaminsky, M.D.
505 W. Olive Avenue
Sunnyvale, California 94086
David W. Kaplan, M.D.
University of Oklahoma
Health Sciences Center
Department of Pediatrics
Childrens Memorial Hospital
P.O. Box 26901
Oklahoma City, Oklahoma 73190
Raymond H. Kaufman, M.D.
1200 Moursund Avenue
Houston, Texas 77030
Robert G. Kaufman, M.D.
691 Murphy Road
Medford, Oregon 97501
Edgar B. Keemer, M.D.
1553 Woodward Avenue
Detroit, Michigan 48226
William C. Keettel, M.D.
Professor
Department of Obstetrics
& Gynecology
University of lowa Hospital
Iowa City, lowa 52240
Walter S. Keifer, M.D.
1145 Broadway
Seattle, Washington 98122
vii
Louis Keith, M.D.
333 East Superior
Chicago, I)linois 60611
Thomas H. Kirschbaum, M.D.
Professor and Chairman
Department of Obstetrics
and Gynecology
Michigan State University
East Lansing, Michigan 48824
Luella Klein, M.D.
Grady Hospital
80 Butler Street
Atlanta, Georgia 30303
Morton Paul Klein, M.D.
5430 Main Street
Williamsville, New York 14224
Stephen M. Klein, M.D.
11811 Shaker Boulevard
Cleveland, Ohio 44120
Richard K. Kleppinger, M.D.
1300 Lancaster Pike
Reading, Pennsylvania 19607
Schuyler G. Kohl, M.D.
Professor
Department of Obstetrics
& Gynecology
Downstate Medical Center
450 Clarkson Avenue
Brooklyn, New York 11203
Claude H. Koons, M.D.
1001 Office Park Road
West Des Moines, Illinois 50321
Lewis H. Koplik, M.D.
7000 Culter Avenue, N.E.
Suite W-12
Albuquerque, New Mexico 87110
Kermit E. Krantz, M.D., Litt.D.
Professor and Chairman
Department of Gynecology
and Obstetrics
University of Kansas
Medical Center
Rainbow Boulevard
at 39th Street
Kansas City, Kansas 66103
| |
Viii
Ruth Krauss, M.D.
200 15th Avenue
Seattle, Washington 98112
William Kroutil,M.D. ¥,
9461 Grindlay
Cypress, California 90630
Mary E. Lane, M.D.
70 South Broadway
Tarrytown, New York 10591
George Langmyhr, M.D.
6619 N.E. 196th Street
Seattle, Washington 98155
James H. Lee, Jr., M.D.
Professor and Chairman
Department of Obstetrics
& Gynecology
Jefferson Medical College
Thomas Jefferson University
1025 Walnut Street
Philadelphia, Pennsylvania 19107
Nelson Lee, M.D.
Prel Plaza
Orangeburg, New York 10962
H. Lehfeldt, M.D.
784 Park Avenue
New York, New York 10021
Theodor Lehrer, M.D.
Professional Association
4640 North Federal Highway
Suite H
Fort Lauderdale, Florida 33308
David E. Lessin, M.D.
4107 Hollywood Boulevard
Hollywood, Florida 33021
Ronald L. Levine, M.D.
Associate Clinical Professor,
Obstetrics & Gynecology
University of Louisville
School of Medicine
250 E. Liberty Street
Louisville, Kentucky 40202
Carl J. Levinson, M.D.
Baylor College of Medicine
Texas Medical Center
Houston, Texas 77030
F.. Woodward Lewis, M.D.
190 Groton Road
Ayer, Massachusetts 01432
Harold I. Lief, M.D.
Marriage Council of Philadelphia
4025 Chestnut Street
Philadelphia, Pennsylvania 19104
Jack Lippes, M.D.
1001 Humboldt Parkway
Buffalo, New York 14208
Louis J. Lissak, M.D.
420 East 72nd Street
New York, New York 10021
Harry M. Little, Jr., M.D.
Associate Professor
Department of Obstetrics
& Gynecology
University of Texas
Medical Branch
Galveston, Texas 77550
Albert E. Long, M.D.
490 Post Street
San Francisco, California 94102
Ernest W. Lowe, M.D.
720 Harrison Avenue
Boston, Massachusetts 02118
Fred A. Lyon, M.D.
Meadowbrook Women’s Clinic
6490 Excelsior Boulevard
Minneapolis, Minnesota 55426
M. E. Malakoff, M.D.
Obstetrical Associates of Laredo
P.O. Box 1668
Laredo, Texas 78041
Robert L. Malatesta, M.D.
13 Robin Road
Warren, New Jersey 07060
Robert Mallory III, M.D
151 Purchase Street
Rye, New York 10580
Alan J. Margolis, M.D.
University of California-San
Francisco
San Francisco, California 94143
Judith S. Mausner, M.D.
Department of Community and
Preventive Medicine
The Medical College of
Pennsylvania
3300 Henry Avenue
Philadelphia, Pennsylvania 19129
Henry Mayer, M.D.
945 Middlefield Road
Redwood City, California 94063
J. McMahon, M.D.
3133 South Hoover Avenue
Los Angeles, California 90017
Sherman M. Mellinkoff, M.D.
Dean
UCLA School of Medicine
Los Angeles, California 90024
Stanley Mendelowitz, M.D.
99 N. Broadway
Tarrytown, New York 10591
Julien H. Meyer, Sr., M.D.
2118 Rosalind Avenue, S.W.
Roanoke, Virginia 24014
Anita K. Millen, M.D.
3037 Arrowhead Drive
Los Angeles, California 90068
Kamran Moghissi, M.D.
C. S. Mott Center
275 East Hancock
Detroit, Michigan 48201
George E. Montgomery, M.D.
McFarland Clinic
12th & Douglas
Ames, Iowa 50011
Arthur P. Mostel, M.D.
27 Strawberry Hill Avenue
Stamford, Connecticut 06903
R. A. Munsick, M.D.
I.U. Hospital Room N266
1100 W. Michigan Street
Indianapolis, Indiana 46202
Lonny Myers, M.D.
333 E. Ontario
Apartment 1011B
Chicago, Illinois 60611
William A. Myers, M.D.
111 Island Road
Circleville, Ohio 43113
Rebecca Nachamie, M.D.
125 Maple Street
Brooklyn, New York 11225
Frederick Natolin, M.D., D. Phil.
Professor
Department of Obstetrics and
Gynecology
Yale University School of
Medicine
333 Cedar Street
New Haven, Connecticut 06510
James H. Nelson, M.D.
2001 Fourth Avenue
San Diego, California 92101
Marjorie E. Nelson, M.D.,
M.P.H.
Assistant Professor of Family
Medicine
Ohio University College of
Osteopathic Medicine
133 N. Congress
Athens, Ohio 45701
Robert B. Nelson, M.D.
916 19th Street, N.W. #808
Washington, D.C. 20006
M. C. Newmark, M.D.
739 Miller Drive
Davis, California 95616
Kenneth R. Niswander, M.D.
Professor and Chairman
Department of Ob/Gyn
University of California at
Davis
Sacramento, California 95817
F. Keith Oehlschlager, M.D.
1167 East 2nd Street
Odessa, Texas 79962
Geraldine Oliva, M.D.
Medical Director
Planned Parenthood Alameda
County
1660 Bush Street
San Francisco, California 94109
Edward C. Olsgard, M.D.
2412 Bunne
Eureka, California 95501
G. Williams Orr, M.D.
201 South 46th Street
Omaha, Nebraska 68132
Melvin J. Padawer, M.D.
12 Greenridge Avenue
White Plains, New York 10601
Linda A. Parenti, M.D.
512 III Cascade Plaza
Akron, Ohio 44308
Roy T. Parker, M.D.
F. Bayard Carter Professor &
Chairman
Department of Obstetrics &
Gynecology
Duke University Medical Center
Durham, North Carolina 27710
Sam P. Patterson, M.D.
920 Madison Avenue
Memphis, Tennessee 38103
Margaret Paxson, M.D.
Box 13
Riderwood, Maryland 21139
Ben M. Peckham, M.D.
Professor and Chairman
Department of Obstetrics &
Gynecology
University of Wisconsin
Medical School
1300 University Avenue
Madison, Wisconsin 53706
Horace A. Penso, M.D.
22455 Maple Court, Suite 303
Hayward, California 94541
Johanna F. Perlmutter, M.D.
Beth Israel Hospital
330 Brookline Avenue
Boston, Massachusetts 02215
Hope Craig Perry, M.D.
Planned Parenthood of
Tompkins County
512 E. State Street
Ithaca, New York 14850
Richard A. Peters, M.D.
1108 16th Street, N.W.
Washington, D.C. 20036
Diana Petitti, M.D.
The Permanente-Medical Group
Department of Medical Methods
Research
3700 Broadway
Oakland, California 94611
L. Charles Powell, Jr., M.D.
Professor
Department of Osbstetrics &
Gynecology, U.T.M.B.
Galveston, Texas 77550
Jack R. Price, M.D.
Flint Community Planned
Parenthood Association
310 East Third Street, YWCA
Flint, Michigan 48503
Rafael L. Quinquilla, M.D.
Calle Augusta 1752
Urb. San Gerardo, Cupey Alto
Rio Piedras, Puerto Rico 00926
Hall Ramirez, M.D.
238 18th Street
Bakersfield, California 93301
Anna T. Rand, M.D.
320 West 86th Street
New York, New York 10024
Ralph Richart, M.D.
Professor of Pathology
Columbia University
College of Physicians
630 West 168th Street
New York, New York 10032
Douglas Robertson, M.D.
41 Timber Ridge
Mt. Kisco, New York 10549
Marvin B. Rodney
Cancer Screening Services
6440 Goldwater Canyon Avenue
North Hollywood, California
91606
Walter C. Rogers, M.D.
7020 N. Siena Drive
Tucson, Arizona 85704
Seymour L. Romney, M.D.
Professor
Albert Einstein College of
Medicine
1300 Morris Park Avenue
Bronx, New York 10461
Allan Rosenfield, M.D.
Professor
Obstetrics & Gynecology-Public
Health
College of Physicians &
Surgeons
Columbia University
60 Haven Avenue
New York, New York 10082
M. J. Rosenthal, M.D.
600 N. Euclid Avenue
Suite 203
Uplan, California 91786
George M. Ryan, Jr., M.D.
Professor of Obstetrics &
Gynecology
Chief
Division of Ambulatory &
Community Medicine
University of Tennessee
College of Medicine
800 Madison Avenue
Memphis, Tennessee, 38163
Kenneth J. Ryan, M.D.
Chief of Staff
Boston Hospital for Women
221 Longwood Avenue
Boston, Massachusetts 02115
Eugene Saberski, M.D.
99 N. Broadway
Tarrytown, New York 10591
David A. Sacks, M.D.
3032 Cepa De Oro Drive
Los Alamitos, California 90720
Marcus B. Saltzman, M.D.
59 Millstone Lane
Willingboro, New Jersey 08046
Sherwood L. Samet, M.D.
175 E. Brown Street
East Stroudsburg, Pennsylvania
18301
Lewis E. Savel, M.D.
468 Irvington Avenue
South Orange, New Jersey 07079
Stephan N. Schanzer, M.D.
401 W. Summit
San Antonio, Texas 78212
Leon Schimmel, M.D.
645 Anderson Road, #18
Davis, California 95616
Frank E. Schramm, M.D.
35 E. Elizabeth Avenue
Bethlehem, Pennsylvania 18018
John J. Sciarra, M.D., Ph.D.
Prentice Women’s Hospital
333 E. Superior Street
Chicago, Illinois 60611
Antonio Scommegna, M.D.
Chairman
Department of Obstetrics &
Gynecology
Michael Reese Hospital
29th Street & Ellis Avenue
Chicago, Illinois 60616
Leonard A. Schonberg, M.D.
Route 100
South Londonderry, Vermont
05155
Harold Schulman, M.D.
Obstetrics & Gynecology
Department
Room 708
Jacobi Hospital
Pelham Parkway & Eastchester
Road
Bronx, New York
Paul C. Schwallie, M.D.
483 Sunrise Circle
Kalamazoo, Michigan 49009
Richard H. Schwarz, M.D.
Professor and Chairman
Department of Obstetrics and
Gynecology
State University of New York
Downstate Medical Center
450 Clarkson Avenue
Brooklyn, New York 11203
Robert H. Schwartz, M.D.
2789 Belgrave Road
Pepper Pike, Missouri 44124
William H. Scragg, M.D.
Academic Health Center
Texas Technical Regional
4800 Alberta Avenue
El Paso, Texas 79905
Meredith F. Sirmans, M.D.
Medical Services for Women, Inc.
449 East 58th Street
New York, New York 10022
xii
Morgan T. Smith, Jr., M.D.
1245 Highland Avenue
Suite 504
Abington, Pennsylvania 19001
Richard M. Soderstrom, M.D.
The Mason Clinic
1100 Ninth Avenue
Seattle, Washington 98111
John S. Spangler, M.D.
Straub Clinic
888 S. King
Honolulu, Hawaii 96813
Jane N. Spragg, M.D.
Mill & Bridge Streets
Hillsborough, New Hampshire
03244
E. A. Steffen, M.D.
734 Lake Avenue
Racine, Wisconsin 53403
P. G. Stubblefield, M.D.
220 Longwood Avenue
Boston, Massachusetts 02115
Somers H. Sturgis, M.D.
47 Raymond Street
Cambridge, Massachusetts 02140
Dorothy Sved, M.D.
38 North 8th Avenue
Highland Park, New Jersey
08904
D. P. Swartz, M.D.
Professor Obstetrics &
Gynecology
Albany Medical College
Albany, New York 11208
Ruth Schwartz, M.D.
220 Alexander Street
Rochester, New York 14607
William Swartz, M.D.
University of California at
San Diego
225 Dickison Street
San Diego, California 92105
xiii
Walter F. Tauber, M.D.
155 Maple Street
Springfield, Massachusetts 01105
Helen W. Taylor
1015 East Princess Anne Road
Norfolk, Virginia 23504
Marshall A. Taylor, M.D.
1525 Wampanoag Trail
Riverside, Rhode Island 02915
Kenneth W. Teich, M.D.
247 Yorktown Road
Hershey, Pennsylvania 17033
William O. Thomas, Jr., M.D.
265 North Broadway
Portland, Oregon 97227
W. Norman Thornton, Jr., M.D.
Professor and Chairman
Emeritus
Department of Obstetrics &
Gynecology
University of Virginia School of
Medicine
Charlottesville, Virginia 22908
Christopher Tietze, M.D.
120 East 90th Street
New York, New York 10028
Curtis T. Todd, M.D.
336 Regency Parkway Drive
Omaha, Nebraska 68114
Lawrence P. Tourkow, M.D.
8319 Hendrie Boulevard
Huntington Woods, Michigan
48070
Frances H. Trimble, M.D.
6006 Charles Mead Road
Baltimore, Maryland 21212
David H. Tullis, M.D.
2345 Secor Road
Toledo, Ohio 43623
Ekrem §S. Turan, M.D.
728 Governor Circle
Newtown Square, Pennsylvania
19073
Louise B. Tyrer, M.D.
833 South Avenue :
Westfield, New Jersey 07090 :
Judith Tyson, M.D.
Medical Director
Planned Parenthood of Vermont
23 Mansfield Avenue
Burlington, Vermont 05401
Mark B. Vizer, M.D.
724 Lawn Avenue
Sellersville, Pennsylvania 18960
Saroji Wadhua, M.D.
Mellon Pavillion West P.
4875 Liberty Avenue
Pittsburgh, Pennsylvania 15224
Livia S. Wan, M.D.
320 East 30th Street
New York, New York 10016
Allan B. Weingold, M.D.
Professor and Chairman
Department of Obstetrics—
Gynecology
George Washington University
2150 Pennsylvania Ave., N.W.
Washington, D.C. 20027
W. Donald Weston, M.D.
Dean, College of Human |
Medicine
Michigan State University
A-118 East Fee Hall
East Lansing, Michigan 48824
Kenneth F. Whitaker, M.D.
c/o Planned Parenthood of
Rhode Island
187 Westminster Mall
Providence, Rhode Island 02903
S. A. Wilchins, M.D.
20 Denman Place
Elizabeth, New Jersey 07208
Preston Lea Wilds, M.D.
Eastern Virginia Medical School
600 Gresham Drive
Norfolk, Virginia 23507
xiv
Andrew T. Wiley, M.D. Ralph M. Wynn, M.D.
62 H Ridge Road Professor and Head
Greenbelt, Maryland 20770 Department of Obstetrics and
. Gynecology
J. Robert Willson, M.D. - -
: University of Arkansas for
oe, of Gynecology and Medical Sciences
. . + he Slot 518
haar Silage 4301 West Markham
Ann Arbor, Michigan 48109 Little Rock, Arkansas 72205
Isabel J. Wolfstein, M.D. Donald Zelkind, M.D.
23601 South Woodland Road 1081 West 156th Avenue
Shaker Heights, Ohio 44122 Broomfield, Colorado 80020
ARGUMENT:
I. THE DISTRICT COURT CORRECTLY
II,
FOUND THAT THERE IS A CLASS OF
INDIGENT WOMEN FOR WHOM ABOR-
TIONS ARE MEDICALLY NECESSARY AND
THAT THE STATE’S DENIAL OF ABOR-
TION FUNDING FOR SUCH WOMEN WILL
SUBSTANTIALLY INCREASE MORBIDITY
AND MORTALITY AMONG THE WOMEN
ee I alate cacaccsetastataepecuisinene
A. There Exists A Class Of Indigent Women
For Whom Abvurtions Are Medically Neces-
1. Both pre-existing conditions and compli-
cations that arise during pregnancy may
pose excessively high risks...
2. Teenage pregnancy poses particularly
serious health problems ...............
B. The Illinois Statute Will Make Publicly
Funded Abortions Unavailable To A Signifi-
cant Number Of Indigent Women For Whom
Abortions Are Found To Be Medically
CR RSL a Ia Pk a Ae
C. The Effect Of The Illinois Statute Will Be To
Increase Morbidity And Mortality Among
Indigent Pregnant Women .................
ILLINOIS’ REFUSAL TO FUND MEDICALLY
NECESSARY ABORTIONS VIOLATES THE
EQUAL PROTECTION CLAUSE .....
10
11
14
22
29
xvi
INDEX—Continued
Page
A. The Illinois Statute Should Be Subjected To
I 31
B. The Illinois Statute Does Not Further A
Compelling State.Interest ....0000 39
C. The Illinois Statute Does Not Rationally Fur-
ther A Legitimate State Interest ......0......... 40
Rae ieteer te Matera ra ate A CE See 44
xvii
TABLE OF AUTHORITIES
Cases: Page
Beal v. Doe, 482 U.S. 488 (1977) ...........0..0.000c0cee 12, 18, 43
Bellotti v. Baird, 428 U.S. 182 (1976) -....0000000000.... 33
Bellotti v. Baird, U.S. ——, 99 S. Ct. 3035
cee es ss cota menebinniaeabio’ 32
Buckley v. Valeo, 424 U.S. 1 (1976) 000... 9
Carey Vv. Population Services International, 431
TI 43
Cleveiand Board of Education v. LaFleur, 414 U.S.
Oe siiacee 32
Colautti v. Franklin, 439 U.S. 379 (1979).......... 12, 25, 34,
35, 42
Connecticut v. Menillo, 423 U.S. 9 (1975) ......0....... 34
Dandridge v. Williams, 397 U.S. 471 (1970) .....37, 38, 39
Department of Agriculture v. Moreno, 413 U.S.
Ns sacedetpneead 38, 40
Doe v. Bolton, 410 U.S. 179 (1978) ............... 12, 13, 34, 35
Dunn Vv. Blumstein, 405 U.S. 330 (1972) ........0.... 31, 33
Examining Board of Engineers Vv. Flores de Otero,
| BRIER IR IM EEE et Le OE 40, 41
Glasson v. City of Louisville, 518 F.2d 899 (6th
Cir.), cert. denied, 423 U.S. 980 (1975) .............. 41
Jimenez V. Weinberger, 417 U.S. 628 (1974) ......... 39
Maher V. Roe, 482 U.S. 464 (1977) .......................... passim
McRae vy. Califano, No. 76-Civ-1804 (E.D.N.Y.
NE Gy IID cathahnak ic thicncn cdo chanectalerctheccdbcoss sesesosBy 20, 20
Memorial Hospital v. Maricopa County, 415 U.S.
Eadie ites th edna ener 26, 31, 32, 33, 36, 40
Planned Parenthood vy. Danforth, 428 U.S. 52
ila a ae ee ee. 34, 35
Roe v. Wade, 410 U.S. 118 (1978) ..0.......ccceceeeccceeceeee passim
San Antonio Independent School District v. Rod-
ORs UN Pe. CIE ar kceicakecocsecieacevimessticsecess 30, 32
Shapiro v. Thompson, 394 U.S. 618 (1969) ...... ..01, 88, 41
Sherbert v. Verner, 374 U.S. 398 (1968) ................ 33
Singleton v. Wulff, 428 U.S. 106 (1976)... 36
Weber v. Aetna Casualty & Surety Co., 406 U.S.
SER RSE Ree We A cee pe el 38
Weinberger v. Salfi, 422 U.S. 749 (1975) ................. 32, 40
:
:
7
‘i
xviii
TABLE OF AUTHORITIES—Continued
Page
Weinberger v. Wiesenfeld, 420 U.S. 636 (1975)... 9,44
Williams v. Zbaraz, —— U.S. ——., 99 S. Ct. 2095
REC ae eR a A 34, 37, 39, 41, 43
Zablocki v. Redhail, 434 U.S. 374 (1978) ............... 32, 37
Zbaraz Vv. Quern, 469 F. Supp. 1212 (N.D. IIL.
RENE Leen 10, 11, 24, 26, 27, 36, 37, 41
Constitution and Statutes
aE | Ee 33
Fourteenth Amendment
Due Process Clause 220000000 ccccccceeeeceeeeee-- eee 87
Equal Protection Clause ............... 8, 9, 30, 36, 37, 39
Ill. Rev. Stat. ch. 23 §§ 5-5, 6-1, 7-1 (Supp. 1978)... 9
Articles, Reports and Publications:
Abortion—Part 2: Hearings before the Subcom-
mittee on Constitutional Amendments of the
Senate Committee on the Judiciary, 93d Cong.,
EE ae eee eli ee ae Re 29
Abortions and the Poor: Private Morality, Public
Responsibility (Alan Guttmacher Inst. 1979)... 35
The Atlanta Constitution, February 12, 1980... 35
Cates & Tietze, Standardized Mortality Rates As-
sociated with Legal Abortion: United States
1972-1975, 10 Family Planning Perspectives 109
RARE Ra a otal thie Sa e tL 12, 26, 27
Center for Disease Control, Health Effects of Re-
stricting Federal Funds for Abortion—United
States, 28 Morbidity & Mortality Weekly Report
A iii ia ne Ss 28, 35
DHEW, Adolescent Pregnancy (August 4, 1977)
(decision memorandum).......—<—tCSt—t—— 22
Felig, Diabetes Mellitus, in Medical Complications
During Pregnancy 170 (Burrow & Ferris eds.
BE ailtaenclitirdvensn nueite ee 20
xix
TABLE OF AUTHORITIES—Continued
Page
Ferris, Renal Disease, in Medical Complications
During Pregnancy 1 (Burrow & Ferris eds.
BAR RRL ern SR ante RSD en Ni el Ds a 19
Ferris, Toxemia and Hypertension, in Medical
Complications During Pregnancy 53 (Burrow
8 REN en bom 18
Gibbs & Locke, Maternal Deaths in Texas 1969-
1973, 126 Am. J. of Obstet. Gynecol. 687 (1976) .. 15
Graber, Christman, Rawlings & Boehm, Diabetes
Ce ee ee 19, 20
Horger & Facog, Sickle Cell & Sickle Cell-Hemo-
globin C Disease During Pregnancy, 39 Obstet-
rics & Gynecology 873 (1972) 0.000.000. 17
Hume, Vascular Disease, in Medical Complications
During Pregnancy 150 (Burrow & Ferris eds.
ERR RR ce SE Le Se a ae 21
Jones, Hypertensive Disorders of Pregnancy, 8
JOGN Nursing 92 (1979) 00 18
Kahler, Cardiac Disease, in Medical Complications
During Pregnancy 105 (Burrow & Ferris eds.
RRNA Eas OE Ot ete: AD ed 14, 15, 16
Kreutner & Hollingsworth, Adolescent Obstetrics
a 19
Levin & Algazy, Hemotologic Disorders, in Medical
Complications During Pregnancy 689 (Burrow
& Ferris eds. 1975) sii eshmesidlediinstesietiaiinboaee 17
Medical Complications During Pregnancy (Burrow
a enema 14
The Merck Manual (13th ed. 1977) a Es 15, 16, 18
Messer, Medical Indications for Pregnancy In-
terruption, in Pregnancy Termination: Pro-
cedures, Safety and New Developments 305
(Zatuchni, Sciarra & Steidel eds. 1979) ............ 15, 19
11 Million Teenagers (Alan Guttmacher Inst.
PR PRI RRS E Ea SRI Na RL IO 12, 22, 23, 24
Mitchell & Capizzi, Neoplastic Disease, in Medical
Complications During Pregnancy 738 (Burrow
ee a ae 16
xX
TABLE OF AUTHORITIES—Continued
Page
Nadelson, Abortion Counselling: Focus on Ado-
lescent Pregnancy, 54 Pediatrics 765 (1978).... 23
Office of Child Health Affairs, DHEW, Teenage
Pregnancy (December, 1976) ......... 0. 22, 23, 24
Pernoll, High-Risk Pregnancy, in Current Obstet-
ric & Gynecologic Diagnosis & Treatment 560
ID I I act ae 14
Petitti & Cates, Restricting Medicaid Funds for
Abortions: Projections of Excess Mortality for
Women of Childbearing Age, 67 Am. J. of Pub.
SU RT i 28
Pritchard & MacDonald, Williams Obstetrics (15th
i EE eiichadinhncoctaten et ice 15, 16, 21
Speroff, Toxemia of Pregnancy, 32 Am. J. of Car-
SI I I oa ——e
Teicher, A Solution to the Chronic Problem of Liv-
ing: Adolescent Attempted Suicide, in Current
Issues in Adolescent Psychiatry 124 (Brunner-
I I sc 23
Tietze, The Effect of Legalization of Abortion on
Population Growth and Public Health, 7 Family
Planning Perspectives 123 (1975) ........................ 27
IN THE
Siyptrene Court of the United States
OCTOBER TERM, 1979
No. 79-4
JASPER F. WILLIAMS AND EUGENE F. DIAMOND,
- Appellants
DAVID ZBARAZ, et al.,
Appellees
No. 79-5
JEFFREY C. MILLER, ACTING DIRECTOR, ILLINOIS
DEPARTMENT OF PUBLIC AID,
7 Appellant
DAVID ZBARAZ, et al.,
Appellees
No. 79-491
UNITED STATES OF AMERICA,
Appellant
Vv.
DAVID ZBARAZ, et al.,
Appellees
On Appeals from the United States District Court
for the Northern District of Illinois
2
BRIEF OF AMICI CURIAE PLANNED PARENTHOOD
FEDERATION OF AMERICA, INC., ASSOCIATION
OF PLANNED PARENTHOOD PHYSICIANS, INC.,
AMERICAN PUBLIC HEALTH ASSOCIATION,
NATIONAL ABORTION FEDERATION, AMERICAN
ASSOCIATION OF SEX EDUCATORS, COUNSELORS
AND THERAPISTS, SOCIETY FOR ADOLESCENT
MEDICINE, ASSOCIATION FOR WOMEN IN
PSYCHOLOGY, NATIONAL URBAN LEAGUE, INC.,
THE AMERICAN JEWISH CONGRESS, AND CERTAIN
MEDICAL SCHOOL DEANS, PROFESSORS AND
INDIVIDUAL PHYSICIANS
IN SUPPORT OF THE APPELLEES
Planned Parenthood Federation of America, Inc.,
Association of Planned Parenthood Physicians, Inc.,
American Public Health Association, National Abortion
Federation, American Association of Sex Educators,
Counselors and Therapists, Society for Adolescent Medi-
cine, Association for Women in Psychology, National
Urban League, Inc., The American Jewish Congress and
263 medical school deans, professors and individual physi-
cians respectfully submit this brief as amici curiae in
support of the appellees. All parties have given their
consent for the filing of this brief in letters filed with
the Clerk of this Court.
INTEREST OF AMICI
Planned Parenthood Federation of America, Inc.
Planned Parenthood Federation of America, Inc., also
known as Planned Parenthood—World Population (“Plan-
ned Parenthood”), is a not-for-profit corporation organized
in 1922 and existing under the laws of the State of
New York. Its headquarters are in New York City. It
is the leading national voluntary public health organiza-
tion in the field of family planning.
3
Planned Parenthood has 187 affiliates in forty-three
states and the District of Columbia, all of them separate
not-for-profit entities. These affiliates operate approxi-
mately 744 family planning clinics offering services to
the public. Most affiliates offer medical services, includ-
ing thirty-six which offer abortion services as part of
their program. Eight affiliates are educational units
without medical services. Most Planned Parenthood affili-
ates which do not perform abortions themselves offer
pregnancy counseling and referral services.
Planned Parenthood provides its affiliates with guidance
in the areas of contraception, voluntary sterilization, in-
fertility, abortion, sex education and education for mar-
riage and parenthood. Each of the affiliates offering
medical services functions under strict medical standards
promulgated by the National Medical Committee in con-
junction with local medical committees. These commit-
tees are made up of health professionals, the large ma-
jority of whom are physicians.
Planned Parenthood also functions as a clearinghouse
for information and services relating to these same areas.
It formulates medical and clinical standards which are
available tu its affiliates and to the public on a nationwide
basis and develops guidelines and materials relating to
public and professional education in all aspects of family
planning. Its Medical Director and other consultants con-
fer with other national medical organizations, medical
school faculties and local agencies in relation to teaching
techniques, formation of clinics and the like.
Many of Planned Parenthood’s affiliates operate in
cooperation with local public health facilities. The affili-
ates are also teaching and training centers for physicians,
nurses, teachers and social workers from this country
and foreign countries and provide referral services for
their clients to qualified medical specialists anc facilities.
4
As ~ necessary corollary of its activities in the area of
contraception, Planned Parenthood is committed to the
principle that safe abortions should be available to all
who need them. Planned Parenthood does not view abor-
tion as an alternative to contraception; it believes, how-
ever, that abortion services are essential to protect women
where contraception has been unavailable, has not been
used for some other reason or has failed, particularly in
cases where pregnancy poses significant health risks. It
believes, moreover, that for women who need but cannot
afford abortions, public funds must be made available
to provide this essential service.
Association of Planned Parenthood Physicians, Inc.
Planned Parenthood works closely with the Association
of Planned Parenthood Physicians, Inc. (“APPP’), a New
York not-for-profit corporation organized in 1974. APPP
is the successor to the American Association of Planned
Parenthood Physicians, an unincorporated association
which was organized in 1968. APPP was formed for
scientific, educational and charitable purposes and spe-
cifically to promote the ongoing interest in family plan-
ning in order to improve the stability and health of the
family through responsible parenthood. APPP has 807
members, all of whom are physicians or other health
professionals associated with family planning.
American Public Health Association
The American Public Health Association is a national
nongovernmental organization established in 1872. Its
object is to protect and promote personal and environ-
mental health. With a membership of over 50,000, it is
the largest public health organization in the world.
Within this membership, both professional health workers
and consumers act in a leadership role to develop a
national policy for the provision of equitable, quality
health care for all citizens.
National Urban League, Inc.
The National Urban League, Inc. is a charitable orga-
nization, organized as a not-for-profit corporation under
the laws of the State of New York. As the oldest non-
profit, nonpartisan human rights organization in the
nation, the League has waged a 70-year campaign against
poverty, racism, illiteracy and neglect.
As a result of its ongoing efforts to ameliorate pre-
vailing conditions in black ghettos, the League is painfully
aware of the unacceptably poor health of many black
Americans. Maternal morbidity and mortality rates
among black women, and particularly among black teen-
agers, are significantly greater than the national aver-
ages. The League believes that the availability of abor-
tions to all black women who are in medical need of
them is critical to its efforts to reduce maternal morbidity
and mortality among black women.
National Abortion Federation
The National Abortion Federation is a national, non-
profit organization composed both of professional individ-
uals and groups providing abortion services and of others
committed to making safe, legal abortion available to all
women.
American Association of Sex Educators, Counselors
and Therapists
The American Association of Sex Educators, Counselors
and Therapists is a national nonprofit membership organ-
ization founded in 1967. Its aims are to assist those
professionals responsible for sex education, counseling
and therapy programs by providing standards of com-
petency in these areas.
6
Society for Adolescent Medicine
The Society for Adolescent Medicine is a national orga-
nization of providers of health care to the adolescent
population. It consists of 800 members, all of whom are
physicians and health professionals.
Association for Women in Psychology
The Association for Women in Psychology is a_not-
for-profit scientific and educational organization which
encourages research directed toward alternatives to stereo-
typed sex roles. It has over 2,000 members, women
and men.
The American Jewish Congress
The American Jewish Congress, a national organiza-
tion of American Jews, was founded to protect the funda-
mental freedom of Jews and all Americans. The Ameri-
can Jewish Congress neither favors nor opposes abortion
but believes that a woman’s decision whether to undergo
abortion must be her own, uncoerced by government. For
that reason, it has joined in briefs amici submitted to this
Court in Roe v. Wade, 410 U.S. 113 (1973), Doe v. Bol-
ton, 410 U.S. 179 (1973), and Poelker v. Doe, 482 U.S.
519 (1977).
Individual Physicians, Professors,
and Medical School Deans
The 263 individual physicians who as amici subscribe
to this brief are all involved in the provision of health
care to pregnant women, either as specialists in obstetrics
and gynecology, psychiatry or pediatrics, or as educators
responsible for the training of medical students and resi-
dents in these fields. They are concerned that abortion
services not be denied to any women who are in medical
need of them, regardless of their economic status.
7
Amici all share a longstanding concern with the avail-
ability of quality medical care to all pregnant women.
Through their various activities and efforts, they all seek
a decrease in maternal morbidity and mortality. While
modern medicine has an arsenal of techniques which can
minimize the health risks of pregnancy, too many women,
particularly poor women, still suffer severe complications
and too many women still die during pregnancy.
As organizations long concerned with maternal health
and as individual professionals specializing in the pro-
vision of health care to pregnant women, amici are in a
unique position to address the special health risks which
many poor women face in pregnancy and to highlight for
the Court the circumstances in which physicians may con-
clude that abortions are medically necessary. This brief
addresses these points and argues that Illinois’ denial of
funding for indigent women in medical need of abortions
violates the Equal Protection Clause of the Fourteenth
Amendment.
SUMMARY OF ARGUMENT
Illinois has chosen to deny funding for any abortion
which a woman’s physician deems to be “medically neces-
sary” but which her physician cannot certify to be
“necessary for the preservation of the life of the woman.”
By doing so, the state has carved out an exception to its
policy of funding all medically necessary services, proce-
dures and operations pursuant to the Medicaid statutory
scheme.
The District Court correctly found that there is a class
of indigent women for whom abortions are medically
necessary, even though not certifiably necessary to pre-
serve their lives, and that the state’s failure to fund such
abortions will substantially increase morbidity and mor-
tality among the women in this class. The medical evi-
8
dence supports the conclusion that both pre-existing condi-
tions and complications that arise during pregnancy may
make an abortion medically necessary, because they may
entail excessively high risks that cannot be sufficiently
reduced except by the performance of an abortion. Each
woman’s physician must be permitted, in the exercise of
his best professional judgment, to weigh the various treat-
ment alternatives and determine whether an abortion is
medically necessary for her, under all the circumstances.
By treating medically necessary abortions differently
from other medically necessary services, Illinois has cre-
ated a classification that violates the Equal Protection
Clause of the Fourteenth Amendment. Because the classi-
fication unduly burdens the exercise of a fundamental right
by withholding funding for medically necessary abortions
and thereby imposing excessive health risks on indigent
women who seek such abortions, and because for many
indigent women the classification acts as a complete bar-
rier to the effectuation of the fundamental right to choose
to have an abortion, the classification should be sub-
jected to strict scrutiny. Regardless of whether it is
subjected to strict scrutiny or is merely tested against
the rational basis standard, however, the classification is
not sufficiently supported by any legitimate state interest
to withstand equal protection analysis.
9
ARGUMENT
In Maher v. Roe, 482 U.S. 464 (1977), this Court held
that the Equal Protection Clause of the Fourteenth
Amendment is not violated by a state regulation that
fails to provide Medicaid funding for a “nontherapeutic”’
abortion—an abortion sought by a woman on a purely
elective basis rather than on the basis of her physician’s
opinion that an abortion is medically necessary. As the
Court pointed out in Maher, however, the Connecticut
regulation at issue there did provide Medicaid funding
“for first trimester abortions .. . that are ‘medically nec-
essary’... .” Id. at 466.
The Illinois statute at issue here’ is significantly dif-
ferent in two respects. First, the Illinois statute denies
Medicaid funding for all abortions except those “necessary
for the preservation of the life of the woman.” Unlike
the Connecticut regulation in Maher, the Illinois statute
thus denies funding for every abortion which a woman’s
physician deems to be “medically necessary” but which the
physician cannot certify to be “necessary for the preserva-
tion of the life of the woman.” Second, the Illinois statute
is part of a statutory scheme which provides funding for
all “medically necessary” services and operations other
1 Til. Rev. Stat. ch. 23, §§ 5-5, 6-1, 7-1 (Supp. 1978). These amici
take no position with respect to the argument raised by the United
States that, insofar as the District Court held the so-called “Hyde
Amendment” unconstitutional, its judgment should be vacated on
the ground that there is no case or controversy with respect to that
provision. See United States Brief at 26-29. If the Court rejects
that argument and considers the constitutionality of the Hyde
Amendment, however, these amici respectfully submit that the
Hyde Amendment violates equal protection for essentially the same
reasons set forth in the Argument herein with respect to the IIli-
nois statute. See, e.g., Weinberger v. Wiesenfeld, 420 U.S. 636,
638 n.2 (1975); Buckley v. Valeo, 424 U.S. 1, 98 (1976).
2Tll. Rev. Stat. ch. 23, §§ 5-5, 6-1, 7-1 (Supp. 1978).
10
than abortions, regardless of whether those services are
necessary for the preservation of the life of the patient.*
The issue presented in this case is thus one of first
impression, i.e., whether a state which funds other medi-
cally necessary services for indigent patients may with-
hold funding for an abortion which an indigent woman’s
physician has determined to be medically necessary.
The District Court ruled that Illinois may not withhold
such funding. This conclusion rests on several findings of
fact which, as we show in Part I below, are supported by
the medical evidence in the record, as well as by recog-
nized medical treatises. On the basis of those findings, the
District Court upheld the plaintiffs’ contention that “by
imposing restrictions on the public funding of medically
necessary abortions which are not imposed on other medi-
cally necessary operations, P.A. 80-1091 [the Illinois stat-
ute] violates their rights to equal protection of the laws
guaranteed by the Fourteenth Amendment to the United
States Constitution.” Zbaraz v. Quern, 469 F. Supp. 1212,
1216 (N.D. Ill. 1979). For the reasons set forth in Part
II, infra, the District Court was, we submit, clearly cor-
rect in reaching this conclusion.
I. THE DISTRICT COURT CORRECTLY FOUND
THAT THERE IS A CLASS OF INDIGENT WOMEN
FOR WHOM ABORTIONS ARE MEDICALLY NEC-
ESSARY AND THAT THE STATE’S DENIAL OF
ABORTION FUNDING FOR SUCH WOMEN WILL
SUBSTANTIALLY INCREASE MORBIDITY AND
MORTALITY AMONG THE WOMEN IN THIS
CLASS.
- The District Court’s decision rests on three important
and interrelated findings of fact. First, the District Court
found that there exists a class of pregnant women eligible
* By contrast, no claim was made in Maher that the regulation
which denied funding for nontherapeutic abor.ions was part of a
regulatory scheme which provided public funding for other non-
therapeutic services.
11
for Illinois medical assistance programs for whom abor-
tions are medically necessary but not certifiably necessary
for the preservation of their lives. 469 F. Supp. at 1213
n.l, 1218-21. Second, the court found that this class of
indigent women cannot obtain publicly funded abortions
under the restrictions imposed by the Illinois statute.
Id. at 1220-21. Third, the court found that the effect
of the statute will be substantially to increase morbidity
and mortality among the women in this class (id. at
1220) ; or, as the court also put it, a woman within this
class “may be subjected to considerable risk of severe
medical problems, which may even result in her death.”
Id, at 1219.
As we show below, each of these findings is fully sup-
ported by the medical testimony in the record and by the
writings of respected medical experts, many of which
were made part of the record as attachments to affidavits
of medical witnesses.*
A. There Exists A Class Of Indigent Women For
Whom Abortions Are Medically Necessary.
It is undisputed that some women experience serious
medical problems during pregnancy which subject them
to greater than normal risk of morbidity and mortality.
Women who have pre-existing conditions such as cancer,
heart disease or diabetes, for example, or who develop
pregnancy-related complications such as preeclampsia, are
considered high risks during pregnancy. Whether the
risks to health and life in any given case are such that an
abortion is medically necessary is, perforce, a medical
question. As this Court recognized in Roe v. Wade, 410
U.S. 118, 166 (1973), “the abortion decision in all its
* Testimony contained in the Appendix will be cited by the last
name of the affiant, a Roman numeral if the affiant submitted two
affidavits, and the page of the Appendix at which it appears; e.g.,
Depp Aff. I | ——,, App. p. ——.
12
aspects is inherently, and primarily, a medical decision,
and basic responsibility for it must rest with the physi-
cian.”
This Court has repeatedly emphasized, moreover, that
the determination whether an abortion is medically neces-
sary can be made by a woman’s physician only after con-
sideration of an array of variables and that her physician
must be given the freedom necessary to evaluate these
variables and to formulate his best medical judgment:
“Whether ‘an abortion is necessary’ is a professional
judgment that . . . may be exercised in the light of
all factors—physical, emotional, psychological, famil-
ial, and the woman’s age—relevant to the well-being
of the patient. All these factors may relate to health.
This allows the attending physician the room he needs
to make his best medical judgment.” Doe v. Bolton,
410 U.S. 179, 192 (1973), as quoted in Beal v. Doe,
432 U.S. 438, 441 n.3 (1977).
See also Colautti v. Franklin, 439 U.S. 379, 387-88
(1979).
The degree of risk a given woman faces can only be
measured against the “normal” risks of pregnancy. Preg-
nancy inherently involves some risk, because it results in
significant physiological changes in a woman’s body and
places exceptional demands on her bodily functions. Gen-
eral morbidity and mortality rates bear this out.°
Obviously, however, a woman’s physician must be alert
for indications that she, in particular, is at greater than
normal risk by reason of a pre-existing condition, such as
hypertension, diabetes, heart disease, or cancer, or by rea-
® See Cates & Tietze, Standardized Mortality Rates Associated
with Legal Abortion: United States 1972-1975, 10 Family Plan-
ning Perspectives 109 (1978) (hereinafter cited as Mortality Rates) ;
11 Million Teenagers (Alan Guttmacher Inst. 1976); Depp Aff. I
{7 11, 18, App. pp. 32-34.
13
son of a pregnancy-related complication, such as pre-
eclampsia. Even for a woman who does suffer from such
a disease or complication, moreover, the decision whether
an abortion is medically necessary will depend on a num-
ber of factors.
For example, the relative severity and associated level
of risk of these medical problems obviously vary from case
to case. The availability of medical facilities and re-
sources to provide treatment also varies. Some treatment
approaches may require resources which simply are not
available in health care facilities to which indigent women
have access. In addition, the probable effectiveness of
alternative treatment approaches varies. While a range
of techniques has been developed to deal with high-
risk pregnancies, most of these approaches involve strict
regimens, special medication, close supervision and, fre-
quently, hospitalization. A physician must consider
whether his patient can adhere to such a program. It
may not be possible, for example, for a single parent
with small children and no financial resources to rest
in bed or to be hospitalized for an extended period of
months.
Despite this Court’s repeated recognition that “whether
‘an abortion is necessary’ is a professional judgment that
. » . may be exercised in the light of all factors . . . rele-
vant to the well-being of the patient,” Doe v. Bolton,
supra, 410 U.S. at 192; Beal v. Doe, supra, 4382 U.S.
at 441-42 n.3, the amicus brief filed by certain physi-
cians in support of appellants appears to take the
position that an abortion is never medically necessary
because there are always alternative medical treatments
that are equally effective. This position not only is at
odds with this Court’s previous statements as to the scope
of relevant factors which a physician may weigh in de-
ciding whether an abortion is medically necessary but,
as we show below, is also refuted by the medical evidence
in the record and in the recognized medical literature.
14
1. Both pre-existing conditions and complications
that arise during pregnancy may pose excessively
high risks. ;
There are numerous pre-existing conditions and compli-
cations of pregnancy which pose higher than normal risks
to health and life and which will thus alert the physician
to the possibility that an abortion may be medically
necessary.° The following discussion presents a few ex-
amples.’
Cardiac Diseases and Disorders. While modern medical
techniques for the surgical and medical treatment of
cardiac disease make it possible for most pregnant women
with cardiac disease to survive pregnancy, such women
are still at great risk. Perhaps as many as 3.7 percent
of all pregnant women have diagnosed cardiac disease.’
®The text, Medical Complications During Pregnancy (Burrow
& Ferris eds. 1975), discusses, in addition to those outlined here-
in, some 20 major types of complications of pregnancy, including
thyroid disease, adrenal and pituitary disorders, gastrointestinal
diseases, liver diseases, bacterial and viral infections, pulmonary
disease, and neurological complications. See also Pernoll, High-Risk
Pregnancy, in Current Obstetric & Gynecologic Diagnosis & Treat-
ment 560, 562 (Benson ed. 1978).
7 The amicus brief submitted by certain physicians in support of
appellants discusses many of these examples. In each instance,
they indicate treatments which can reduce the risks posed by the
condition and conclude that an abortion is “not appropriate,” “not
indicated,” or “not necessary.” We recognize the existence of these
forms of treatment and their potential for preventing death or
severe health consequences in some cases. These treatments are not,
however, effective in all cases or even available or feasible in all
cases. As we point out in the text, moreover, the fact is that, de-
spite the existence of sophisticated medical techniques, women still
die during pregnancy because of cardiac disease, hypertension, and
other conditions and complications discussed infra. The amici
physicians who support appellants simply ignore this fact.
8 Kahler, Cardiac Disease, in Medical Complications During
Pregnancy 105 (Burrow & Ferris eds. 1975).
15
While the mortality rate among such women has de-
clined steadily in the past twenty-five years (in part be-
cause of the increased availability of abortions), heart
disease remains a significant cause of maternal mortality,
accounting for up to 10 percent of all maternal deaths.°
One study of maternal mortality in Texas found that
heart disease caused 4.2 percent of deaths directly re-
lated to pregnancy and 17.9 percent of deaths indirectly
related to pregnancy.”
Heart disease takes many forms, including rheumatic
heart disease, congenital heart disease and primary pul-
monary hypertension. These diseases have the common
effect of reducing the patient’s functional cardiac capacity.
Since pregnancy increases the demands placed on a
woman’s cardiovascular system, carrying a pregnancy to
term will result in significantly increased risk to a woman
with cardiac disease."
A woman whose cardiac capacity is so impaired that
she must significantly limit her physical activity is at
particularly high risk during pregnancy. Such a woman
may be able to carry her pregnancy to term, but only
if she is hospitalized for the duration of the pregnancy
under strict bed rest, strict diet and administration of
digitalis.* If such a woman does not respond to such a
regimen or cannot be hospitalized for the duration, “car-
* The Merck Manual 518 (13th ed. 1977).
10 Gibbs & Locke, Maternal Deaths in Texas 1969-1973, 126 Am. J.
of Obstet. Gynecol. 687 (1976); Messer, Medical Indications for
Pregnancy Interruption, in Pregnancy Termination: Procedures,
Safety and New Developments 305 (Zatuchni, Sciarra & Steidel eds.
1979) (hereinafter cited as Medical Indications for Pregnancy
Interruption). .
" Kahler, Cardiac Disease, supra note 8, at 129.
me & MacDonald, Williams Obstetrics 612-13 (15th ed.
16
diac disease is an urgent indication for therapeutic
abortion.” **
Cancer. Mitchell and Capizzi succinctly summarize the
risks of cancer during pregnancy:
“(O]f all the medical illnesses complicating preg-
nancy, few are more ominous than cancer. Cancer
threatens the life and well-being of the mother, and
its required therapy may be hazardous to the
fetus.” 1
The existence of cancer may contribute to increased
complications during pregnancy, particularly anemia.’®
In addition, while pregnancy does not generally affect the
course of cancer, necessary treatment for the cancer may
have to be suspended because of the risks to the fetus. For
example, “chemotherapy causes considerable risks of tera-
togenesis and carcinogenesis, if it does not cause [spon-
taneous] abortion, and generally should be avoided. .. .” 1°
An abortion may be medically necessary if therapy can-
not be delayed until the pregnancy is brought to term.”
Sickle Cell Disease. Sickle cell disease involves the
formation of abnormal blood cells which interfere with
normal circulation.'* Whenever oxygen demand increases
13 Jd.; see also Kahler, Cardiac Disease, supra note 8, at 129-30.
The brief of certain amici physicians, which asserts that “abortion
is not the appropriate treatment for the pregnant patient with
cardiac disease,” simply does not reflect the weight of medical
opinion. Brief at 8.
14 Mitchell & Capizzi, Neoplastic Diseases, in Medical Complica-
tions During Pregnancy 738 (Burrow & Ferris eds. 1975).
18 Td. at 740.
16 Jd. at 770.
17 Td. at 743.
18 Sickle cell disorders, which almost exclusively affect blacks, are
disorders in the amino acid sequences of hemoglobin molecular
structures. The Merck Manual 277 (13th ed. 1977).
17
in the body (as it does during pregnancy), abnormal
or sickle cells develop which cannot flow through capil-
laries. They thus block the normal flow and result in
oxygen starvation, causing extremely painful crises at
blockage points. These localized crises can occur any-
where in the body and can affect the functions of the
kidneys, lungs, heart and other organs."
While maternal mortality in pregnant women with
sickle cell disease is relatively low in the United States,
one affiant indicated that a pregnant woman with sickle
cell disease has a 25 percent chance of experiencing a
crisis and dying as a result of pregnancy.” In addition,
“maternal morbidity is severe and the frequency of com-
plications is high.”*! These complications include in-
creased anemia, infections, pulmonary complications, hy-
pertension and congestive heart failure. In many in-
stances the maternal risk is considered to be too great,
and therapeutic abortions are recommended.”
Hypertensive Disorders of Pregnancy. Hypertension
(high blood pressure) is one of the most common com-
plications of pregnancy and arises in one of two forms.
Some women suffer from pre-existing hypertension and
experience magnified symptoms during pregnancy. Other
women, who have normal blood pressures before preg-
nancy, develop hypertension of pregnancy, or preeclamp-
sia, which usually appears after the 20th week of gesta-
tion and is associated with proteinurea (excessive protein
19 Levin & Algazy, Hematologic Disorders, in Medical Complica-
tions During Pregnancy 689, 703-04 (Burrow & Ferris eds. 1975).
20 Zbaraz Aff. { 6(e), App. p. 128.
21 Jd.
22 Levin & Algazy, Hematologic Disorders, supra note 19, at 706-
07; see also Horger & Facog, Sickle Cell & Sickle Cell-Hemoglobin
C Disease During Pregnancy, 39 Obstetrics & Gynecology 873, 878
(1972).
18
in urine) and edema (excessive fluid retention).2* Pre-
eclampsia affects between 5 and 7 percent of all pregnant
women; but it affects 30 percent of all indigent women
and 24 percent of women with first pregnancies. About
1 out of every 200 women with preeclampsia will experi-
ence convulsions, a severe form of the condition referred
to as eclampsia.**
The treatment of preeclampsia requires extended bed
rest, sedation and salt restriction.** While some phy-
sicians may attempt to treat preeclamptic patients on
an outpatient basis, it is usually necessary to hospitalize
the patient for a period of weeks.”
Contrary to the assertion made by certain amici phy-
sicians that abortion is never medically indicated for
preeclampsia (Brief at 10), there are circumstances in
which an abortion is recognized to be medically neces-
sary. As one medical authority states, “pregnancy should
be terminated [because of preeclampsia] either when the
patient has been given the opportunity to demonstrate
maximal response to therapy, or when the physician is
*3 Jones, Hypertensive Disorders of Pregnancy, 8 JOGN N ursing
92-93 (1979) (hereinafter cited as Hypertensive Disorders). Pre-
eclampsia is frequently referred to as toxemia.
24 Td.
25 The Merck Manual 953 (13th ed. 1977). In addition to its
immediate effects on a woman’s health, preeclampsia may result
in significant, negative health consequences to the woman in later
life. Some studies indicate, for example, that preeclampsia may be
correlated with the subsequent development of hypertension outside
of pregnancy and that eclamptic women are more likely to become
diabetic. Ferris, Toxemia and Hypertension, in Medical Complica-
tions During Pregnancy 53, 87 (Burrow & Ferris eds. 1975).
26 Ferris, Toxemia and Hypertension, supra note 25, at 81; Hy-
pertensive Disorders, supra note 23, at 94.
27 Speroff, Toxemia of Pregnancy, 32 Am. J. of Cardiology 582,
590 (1973).
no tn te eno ap a
19
convinced that the patient will fail to respond to
treatment.” 2°
Renal Disease. Impaired renal or kidney function due
to various forms of renal disease poses significant risks
during pregnancy, particularly in combination with hy-
pertension or preeclampsia. “Acute renal failure is one
of the most serious complications of pregnancy” and
often develops late in pregnancy in association with
preeclampsia.” If renal function and hypertension worsen
early in pregnancy, an abortion becomes medically neces-
sary “since there is little likelihood of a_ successful
pregnancy, and renal function may be permanently
impaired.” *°
Diabetes Mellitus. Diabetes mellitus** is associated
with an increase in the incidence of complications in
pregnancy, particularly hypertension, impaired renal func-
tion, and heart disease. When multiple complications
appear, the risk to the woman’s health is compounded.
Diabetes is also more likely to result in complications
if the woman’s condition has not yet stabilized under
treatment. A woman diagnosed as a diabetic within a
year prior to conception is unlikely to have a stabilized
condition and is thus at greater risk.*”
While maternal mortality is not significantly greater
among diabetics than among nondiabetics, pregnancy may
28 Td. at 589.
2° Ferris, Renal Disease, in Medical Complications During Preg-
nancy 1, 34 (Burrow & Ferris eds. 1975).
30 Td. at 32; see also Kreutner & Hollingsworth, Adolescent Ob-
stetrics & Gynecology 192-93. (1978); Medical Indications for
Pregnancy Interruption, supra note 10, at 307.
31 Diabetes mellitus is a metabolic disease caused by insulin defi-
ciency resulting in increased protein and lipid utilization and de-
creased carbohydrate utilization.
32 Graber, Christman, Rawlings & Boehm, Diabetes and Preg-
nancy 9 (1973).
20
cause long-term diabetic complications, “may exaggerate
the metabolic defect in diabetes,” and may cause increased
damage to blood vessels.** Many women with pre-
existing retinopathy, a degeneration of the retina which
can result from diabetes, have suffered a progression of
retinopathy after pregnancy. Similarly, many women
with nephropathy, kidney degeneration often caused by
diabetes, likewise suffer a progression of this disease as
a result of pregnancy.* These risks have led one writer
to conclude that “in patients with proliferative retin-
opathy or nephropathy . . ., interruption of pregnancy
and sterilization should be the recommended course of
action... .” ** Another authority states:
“If diabetes has been present for more than 20 years,
if she has advanced diabetic vascular changes such as
retinopathy and/or kidney disease, or if she is over
the age of 35, the possibility of complications and an
unfavorable outcome of pregnancy are increased to
such a degree that the [pregnant] woman should
seriously consider . . . a therapeutic abortion in the
first trimester of pregnancy.” *7
Venous Disease. Venous thrombosis, pulmonary em-
bolism and varicose veins are all conditions which can
cause serious complications during pregnancy.** One
study found that the risk of blood clotting is approxi-
mately five times greater in pregnant women than in
33 Felig, Diabetes Mellitus, in Medical Complications During
Pregnancy 170, 191 (Burrow & Ferris eds. 1975).
* Td.
35 Jd.
36 Jd.
87 Graber et al., Diabetes and Pregnancy, supra note 32, at 11.
38 A thrombosis is a blood clot which is attached to a vessel wall;
an embolism is a blood clot which has broken free and migrates
through the eins.
ue
21
nonpregnant control subjects.*® Women who have used
birth control pills are at even greater risk.”
The risks associated with clotting continue through-
out pregnancy. Generally, anticoagulant therapy is in-
dicated and appears to reduce the mortality rate signifi-
cantly, but hemorrhaging and possible risks to the fetus
may require termination of such therapy,‘! and an abor-
tion may become medically necessary.*”
Psychiatric Factors. Many women suffer from mental
illness which may be exacerbated by a full term pregnancy.
A woman who suffers from mental illness and seeks to
terminate her pregnancy, moreover, may suffer signifi-
cant consequences if denied an abortion. One medical
expert testified that if a woman suffering from mental
illness is “forced to carry a pregnancy to term [she]
may become severely depressed or psychotic, may suffer
impairment or paralysis of functioning and may engage
in... self-destructive behavior ....” *
A physician may treat a pregnant woman who suffers
from mental illness by placing her in an institution under
close supervision, but such treatment risks additional
decline in her condition.“* Thus, in many instances a
psychiatrist may determine that an abortion is medically
necessary to protect his patient from severely adverse
mental health consequences.*®
39 Hume, Vascular Disease, in Medical Complications During
Pregnancy 150, 155 (Burrow & Ferris eds. 1975).
40 Pritchard & MacDonald, Williams Obstetrics 845 (15th ed.
1976).
#1 Jd. at 161.
42 Zbaraz Aff. { 7(d), App. pp. 127-28.
43 Barglow Aff. § 4, App. p. 114; see also McRae v. Califano, No.
76-Civ-1804, slip op. at 116-124 (E.D.N.Y. Jan. 15, 1980).
44 Barglow Aff. 9, App. p. 117.
45 Td. at 1 6, App. pp. 115-16.
22
2. Teenage pregnancy poses particularly serious
health problems.
The physical risks of teenage pregnancy are significant.
Teenagers between 15 and 19 years of age are 13 percent
more likely than women in their twenties to develop
fatal complications; girls under 15 are 60 percent more
likely to suffer fatal complications.** The incidence of
nonfatal complications is also greater among teenagers.
The incidence of preeclampsia among teenagers, for ex-
ample, is 1.3 times as great as the incidence among
women in their twenties and is particularly hazardous
because of the teenagers’ physical immaturity.“7 Young
teenagers also experience greater rates of hemorrhage
and spontaneous abortion, two of the leading causes of
maternal mortality.**
Consistent and thorough prenatal care can reduce the
likelihood of adverse physical consequences from teen-
age pregnancy. Contrary to the assertion made by cer-
tain amici physicians (Brief at 4), however, even the
most comprehensive prenatal care does not reduce the
risks to the levels experienced by older women.** Fur-
thermore, comprehensive prenatal care requires the co-
operation of the patient. Many teenagers have a difficult
time recognizing the importance of good nutrition and
46 11 Million Teenagers, supra note 5, at 23.
47 Td.
48 Td.
49 DHEW, Adolescent Pregnancy (August 4, 1977) (decision
memorandum); Office of Child Health Affairs, DHEW, Teenage
Pregnancy 9-10 (December, 1976). The latter report summarizes
certain studies on this subject as follows:
“These studies are consistent in indicating, but by no means
proving, that very young women as a group are biologically
too immature for effective childbearing. Prenatal care, no
matter how comprehensive, appears unable to ensure pregnancy
outcomes similar to those sustained by older women.” Jd. at 10.
Lo nell
oun
23
rest and are less likely than adults to be able to co-
operate in a careful program of prenatal care.”
Pregnancy also interrupts a young teenager’s physical
and emotional development, with potentially long-lasting
or permanent consequences. This problem is particularly
prevalent among young teenagers who carry their preg-
nancies to term within two years after the onset of
menses.*’ Although the emotional and psychological con-
Sequences of teenage pregnancy are more difficult to
quantify than the physical risks, they are of equal or
greater long-run importance.
The severity of the stress an unwanted pregnancy may
produce in a teenager is apparent from suicide and illegal
abortion statistics. For teenage girls, actual or sus-
pected pregnancy is a major cause of suicide attempts.”
Prior to the legalization of abortion in 1970, the prin-
cipal cause of death among pregnant adolescents in New
York was illegal abortion.** A teenager is more likely
than a mature woman to resort to illegal abortion or
self-abortion because she is more likely to be desperate,
to have limited access to the health care system, to lack
knowledge of basic medical facts and anatomy, to mis-
judge or ignore risks, and to use crude and dangerous
methods.*™
50 11 Million Teenagers, supra note 5, at 38.
51 Teenage Pregnancy, supra note 49, at 5.
52 Teicher, A Solution to the Chronic Problem of Living: Adoles-
cent Attempted Suicide, in Current Issues in Adolescent Psychiatry
124 (Brunner-Mazel ed. 1973).
53 McRae v. Califano, No. 76-Civ-1804, Tr. at 1347 (E.D.N.Y.
1976).
54 Jd. Not only does illegal abortion carry the risk of death and
sterility, but it also generates greater guilt and anxiety than are
experienced with legal abortion. See Nadelson, Abortion Counsel-
ling: Focus on Adolescent Pregnancy, 54 Pediatrics 765, 767
(1978).
24
All of the increased risks faced by pregnant teen-
agers generally are even further magnified for the young
teenager, 2.¢., the girl under the age of 15. Fertility
is increasing, not declining, in this age group.** The ad-
verse effects are multiplied; moreover, when second preg-
nancies occur while the mothers are still under 20, as
they frequently do when the first pregnancy occurs in
the early teens.”
B. The Illinois Statute Will Make Publicly Funded
Abortions Unavailable To A Significant Number Of
Indigent Women For Whom Abortions Are Found
To Be Medically Necessary.
The District Court found that most health problems
associated with pregnancy would not be covered by the
Illinois statute, which provides funding only for abor-
tions certified to be “necessary for the preservation of
the life of the woman,” and it further found that “those
that would be covered would often not be apparent until
the later stages of pregnancy, when an abortion is more
dangerous to the mother.” 469 F. Supp. at 1220. In sup-
port of these findings, the court correctly pointed out
that:
“The affidavits submitted by plaintiffs give many
examples of medical conditions which would not be
covered by the new Illinois standards, but which
could pose a great threat to the safety of the mother.”
Id., n.12.
The District Court accordingly concluded that “the
Illinois statute as modified will deny needed medical
aid to indigent mothers... .” Id. at 1220. Of course,
this finding is hardly surprising in view of the medical
testimony as to the nature of the medical conditions which
55 Teenage Pregnancy, supra note 49, at 1, 4-5.
56 Jd. at 1; 11 Million Teenagers, supra note 5, at 12.
57 Teenage Pregnancy, supra note 49, at 6.
25
may be adversely affected by pregnancy and the com-
plications which may arise. See subpart A, supra.
That testimony demonstrates that there are relatively
few cases in which a physician will be able to certify
at an early stage of pregnancy that an abortion is “‘neces-
sary for the preservation of the life of the woman.”
Rather, most cases present an array of possible out-
comes, of varying degrees of probability, which might
ensue from an observed condition or combination of con-
ditions. A physician cannot measure these probabilities
with any degree of precision; the various factors he must
consider are inherently uncertain.
Nor will any two physicians identify and assess risks
in identical fashion. Physicians vary in their emphasis
on certain factors, in their experience with the diagnosis
and treatment of certain diseases, and in their threshold
of intervention.
It is clear, however, that a woman’s health may be
placed in serious jeopardy if her physician is forced to
delay his decision until probabilities approach certainties
or until unanimity among his colleagues can be achieved.
Indeed, such delay may cause her health to deteriorate to
a crisis condition.» Every week an abortion is delayed,
58 See Depp Aff. II 11, App. pp. 106-07. This Court has re-
peatedly recognized that medical judgments are based on assess-
ments of numerous factors that cannot be evaluated with precision
and that judgments thus are likely to vary from physician to physi-
cian. See, e.g., Colautti v. Franklin, supra, 439 U.S. at 395-96.
5° In a similar context, this Court recognized the critical impor-
tance of taking medical action before a patient’s condition requires
emergency treatment. In ruling on a state durational residency
requirement applicable to the provision of nonemergency medical
care to indigents, the Court stressed that:
“The State could not deny [an indigent] care just because,
although gasping for breath, he was not in immediate danger
of stopping breathing altogether. To allow a serious illness
to go untreated until it requires emergency hospitalization is
26
moreover, the procedure itself involves greater risks of
complications.”
There is, of course, no way of knowing how many
medically necessary abortions will be performed if the
Illinois statute is upheld. The District Court pointed
out that “affidavits submitted by respected members of
the medical profession . . . suggest that the percentage of
abortions any physician would deem ‘medically neces-
sary’ may be as low as one fifth of the representative
cases in which a pregnant woman desires an abortion.”
469 F. Supp. at 1221.°% Whatever the percentage, how-
ever, it is clear that the Illinois statute would deny fund-
ing for a substantial number of abortions deemed to be
medically necessary by the physicians of the indigent
women in question.
C. The Effect Of The Illinois Statute Will Be To In-
crease Morbidity And Mortality Among Indigent
Pregnant Women.
Not surprisingly, no studies have been published which
directly compare the mortality or morbidity rates of
women having specific medical diseases who carried their
pregnancies to term with the rates of other women hav-
ing the same diseases who terminated their pregnancies.
Studies of general death-to-case ratios are available,”
however, and clearly support the finding of the District
to subject the sufferer to the danger of a substantial and ir-
revocable deterioration in his health .... The denial of medi-
cal care is all the more cruel in this context, falling as it does
on indigents who are often without the means to obtain alter-
native treatment.” Memorial Hospital v. Maricopa County,
415 U.S. 250, 260-61 (1974) (footnote omitted).
®° Mortality Rates, supra note 5, at 111.
*! One of the same affiants estimated that the percentage might
be as high as 50%. See Depp Aff. II 11, App. pp. 106-07.
82 See generally Mortality Rates, supra note 5.
27
Court that the effect of the Illinois statute “will be to
increase substantially maternal morbidity and mortality
among indigent pregnant women.” 469 F. Supp. at 1220.
One such study shows, for example, that if a woman
carries her pregnancy to term, her risk of death is more
than 24 times greater than her risk of death from an
abortion performed during the first eight weeks of preg-
nancy.” If, after some delay, she obtains an abortion
(either because she finds a private source of funding or
her physician eventually determines that her case can be
certified for reimbursement), her risk of death increases
simply because of the delay. The mortality rate for abor-
tions increases over thirty-fold from the eighth week to
the sixteenth week of gestation.“ If she tries to self-
induce an abortion or obtains an illegal abortion, her
risk of death is at least 100 times her risk of death from
a legal first trimester abortion.“ Comparable morbidity
ratios would be even more extreme, moreover, for the
pregnancy morbidity rate is generally four to ten per-
cent higher than the pregnancy mortality rate.”
These risks must, by definition, be even greater among
those women for whom abortions have been found to be
medically necessary but who cannot obtain them. One
study included in the record estimates, for example, that
the increase in mortality resulting from adoption of the
Hyde Amendment (which imposes restrictions on the
funding of abortions that are somewhat less severe than
the Illinois statute) will be approximately seventy-seven
83 Jd. at 112.
* Td. at 111.
*® Tietze, The Effect of Legalization of Abortion on Population
Growth and Public Health, 7 Family Planning Perspectives 123
(1975).
66 Depp Aff. II J 11, App. p. 106.
28
deaths per year.” In McRae v. Califano, supra, the dis-
trict court likewise found, on the basis of an extensive
record, that the Hyde Amendment restrictions on fund-
ing for abortions would result in significant increased
mortality. (Slip op. at 158).
Contrary to the assertion made in the amicus brief
of the National Right To Life Committee, moreover,
there is no evidence that the abortion funding restrictions
imposed by the Hyde Amendment have not resulted in an
increase in mortality or morbidity among Medicaid re-
cipients. (National Right to Life Brief at 17). Indeed,
the assertion in the Committee’s brief to that effect is
based on an outright misrepresentation as to the findings
of a recent report by the Center for Disease Control.”
That report deals only with the impact of the Hyde
Amendment on the incidence of abortion-related complica-
tions, which were defined to include only “illness related
to either an induced or a spontaneous abortion that
caused a woman to come to an acute-care facility,” and
found no increase in the incidence of those complications.
The report did not even consider whether increased
morbidity or mortality results from pregnancy-related
complications when women in medical need of abortions
cannot obtain them because they are denied funding.”
87 Petitti & Cates, Restricting Medicaid Funds for Abortions:
Projections of Excess Mortality For Women of Childbearing Age,
67 Am. J. of Pub. Health 860, 861 (1977).
88 Health Effects of Restricting Federal Funds for Abortion—
United States, 28 Morbidity & Mortality Weekly Report 37 (1979).
*° In further support of its contention that the health of indigent
women denied medically necessary abortions has not been jeopar-
dized by the Hyde Amendment, the Committee states that “one
abortion is not equivalent to one birth. . . . [T]wo abortions are
needed to avert one birth” and thus asserts that the risks of a full
term pregnancy must be compared to the risks of two abortions.
National Right to Life Brief at 17. The Committee bases this highly
misleading statement on testimony of Dr. Christopher Tietze before
a subcommittee of the Senate Judiciary Committee on the use of
Oe Ii Ae Bs ee
eT ee
29
It is clear, then, that the District Court’s findings are
valid and substantiated by the record and the medical
literature. Many indigent women who become pregnant
suffer from pre-existing conditions or develop complica-
tions during pregnancy which entail high risks. In many
instances, the woman’s physician, in the exercise of his
best professional judgment and after weighing the various
treatment alternatives, would conclude that the risks to
the woman’s health and life cannot be sufficiently reduced
by any methods other than an abortion.
Yet Illinois refuses to fund such abortions. As a re-
sult, the class of indigent women for whom abortions are
medically necessary will suffer substantially increased
morbidity and mortality. As we show below, Illinois’
failure to fund such medically necessary abortions con-
stitutes a denial of the equal protection of the laws.
If. ILLINOIS’ REFUSAL TO FUND MEDICALLY NEC-
ESSARY ABORTIONS VIOLATES THE EQUAL
PROTECTION CLAUSE.
In Roe v. Wade, 410 U.S. 113 (1973), and a series
of subsequent cases (discussed infra), this Court has
struck down a variety of state statutes prohibiting
or otherwise circumscribing abortion. Appellants rely
primarily on only one abortion-related decision of this
abortion as a method of reducing population growth. His testimony
indicates that if no other contraceptive methods were practiced, the
average woman might conceive seven times during her lifetime.
Dr. Tietze estimated that to reduce that average from seven to six,
each woman would have to have two abortions during her lifetime.
Abortion—Part 2: Hearings before the Subcomm. on Constitutional
Amendments of the Senate Comm. on the Judiciary, 93d Cong., 2d
Sess. 52 (1976). Dr. Tietze points out, however, that if every woman
used contraceptives of 95 percent effectiveness, less than one abor-
tion per woman would be required to reduce fertility by one. Id.
Thus, the Committee’s contention that the risks of carrying a preg-
nancy to term must be compared to the risks of having two abortions
is not even remotely supported by the only authority it cites for this
proposition.
30
Court, Maher v. Roe, 432 U.S. 464 (1977), in support
of their argument that the Illinois denial of funding for
medically necessary abortions does not violate the Con-
stitution. Even in that decision, however, the Court be-
gan with the premise that a state’s provision of medical
care to indigents must meet constitutional standards:
“The Constitution imposes no obligation on the
States to pay the pregnancy-related medical expenses
of indigent women, or indeed to pay any of the medi-
cal expenses of indigents. But when a State decides
to alleviate some of the hardships of poverty by pro-
viding medical care, the manner in which it dispenses
benefits is subject to constitutional limitations.”
Maher v. Roe, supra, 432 U.S. at 469-70 (footnote
omitted).
Illinois has decided to alleviate some of the hardships
of poverty by providing medical care. It dispenses bene-
fits by funding essentially all medically necessary treat-
ment except medically necessary abortions. Thus, within
a class of Medicaid-eligible persons, Illinois has carved
out a subclass—pregnant women in medical need of abor-
tions—and denies that subclass the funds its members
require if they are to pay for the treatment they need.
This classification violates the Equal Protection Clause
of the Fourteenth Amendment. The framework of anal-
ysis under that clause was reiterated in Maher v. Roe:
““We must decide, first, whether [state legislation]
operates to the disadvantage of some suspect class
or impinges upon a fundamental right explicitly or
implicitly protected by the Constitution, thereby re-
quiring strict judicial scrutiny. . . . If not, the
[legislative] scheme must still be examined to de-
termine whether it rationally furthers some legiti-
mate, articulated state purpose and therefore does
not constitute an invidious discrimination ... .’”
Id. at 470, quoting San Antonio Independent School
District v. Rodriguez, 411 U.S. 1, 17 (1978).
PRS RE, Cyn he rene
31
We submit, first, that the Illinois statute impinges upon
a fundamental right and cannot survive strict scrutiny
and, second, that the statute does not even rationally
further a legitimate, articulated state interest.
The District Court below, believing that Maher fore-
closed it from subjecting an abortion funding restriction
to strict scrutiny, applied the rational basis test to Il-
linois’ decision to single out medically necessary abortions
for exclusion from its Medicaid program. Under reason-
ing which amici fully support, the court found that the
statute fails to meet even that very generous standard.
We also believe, however, that the facts and interests
involved distinguish this case from Maher (see pp. 37-38
infra) in such a way that strict scrutiny is appropriate.
Under either line of analysis, the Illinois statute is un-
constitutional, and the judgment of the District Court
should be affirmed.”
A. The Illinois Statute Should Be Subjected To Strict
Scrutiny.
Whether a welfare or funding statute impinges upon
a fundamental right depends on whether it affects the
exercise of constitutionally protected rights and inter-
ests, not on whether a constitutional right to the welfare
benefits themselves exists. For example, in Shapiro v.
Thompson, 394 U.S. 618, 629-31, 638 (1969), this Court
struck down a waiting period requirement in a welfare
statute because it touched on the fundamental right of
interstate travel. Similarly, in Dunn v. Blumstein, 405
U.S. 330, 388 (1972), and Memorial Hospital v. Mari-
copa County, 415 U.S. 250, 254 (1974), the Court sub-
70 Because the District Court thoroughly developed the rational
basis analysis and did not apply the strict scrutiny test, we devote
greater attention to the strict scrutiny argument. By doing so, we
seek only to stress the importance of the interests that we believe
justify the application of the strict scrutiny test, and not to sug-
gest that the District Court’s rational basis analysis is inadequate.
32
jected durational residence conditions, related to voting
in one case and to medical care in the other, to strict
scrutiny because they impinged upon the right to travel.
By contrast, in San Antonio Independent School District
v. Rodriguez, supra, 411 U.S. at 35, the Court did not
strictly scrutinize a school financing scheme because the
interest affected—the interest in education—was found
not to be fundamental.”
In this case, Illinois’ decision to withdraw funding of
certain abortious impinges upon “the constitutional right
of a woman, in consultation with her physician, to choose
to terminate her pregnancy.” Bellotti v. Baird, US.
, 99 S. Ct. 3035, 3046 (1979) (Powell, J.) ; see Roe
v. Wade, supra, 410 U.S. at 153. This right is unques-
tionably fundamental. See, e.g., id. at 152-53; San An-
tonio Independent School District v. Rodriguez, supra,
411 U.S. at 34 n.76; Cleveland Board of Education v.
LaFleur, 414 U.S. 632, 640 (1974) ; Zablocki v. Redhail,
434 U.S. 374, 386 (1978).
It is true that equal protection analysis is not ended
by a determination that a statutory classification touches
on a fundamental right; some inquiry into the degree of
impact on the right is appropriate. See, e.g., Memorial
Hospital v. Maricopa County, supra, 415 U.S. at 256-
™ Cf. Weinberger v. Salfi, 422 U.S. 749 (1975), cited by appellant
Miller for.the proposition that welfare is not a fundamental right.
Miller Brief at 17. Although this proposition may well be true, it
is immaterial because a right to welfare is neither asserted nor at
issue here. Further, the Court in Salfi acknowledged that there
are constitutional limitations on the manner in which welfare bene-
fits are dispensed :
“[A] noncontractual claim to receive funds from the public
treasury enjoys no constitutionally protected status, . .
though of course Congress may not invidiously discriminate
among such claimants on the basis of a ‘bare congressional
desire to harm a politically unpopular group,’ . .. or on the
basis of criteria which bear no rational relation to a legitimate
legislative goal.” 422 U.S. at 772 (citations omitted).
St Reticle en esns,
33
57; Maher v. Roe, supra, 482 U.S. at 472-74; cf. Bellotti
V. Baird, 428 U.S. 182, 147, 149-50 (1976). To be im-
permissible, however, the interference with the exercise
of the right need not be absolute. Nor must exercise of
the right actually be deterred. It is sufficient if the clas-
sification penalizes or unduly burdens the exercise of
the right. See Shapiro v. Thompson, supra, 394 U.S. at
631, 634; Dunn v. Blumstein, supra, 405 U.S. at 339-
41; Memorial Hospital v. Maricopa County, supra, 415
U.S. at 257-58; Maher v. Roe, supra, 432 U.S. at 473;
cf. Sherbert v. Verner, 374 U.S. 398 (1963).72 A careful
examination of the rights and interests undergirding the
right to choose an abortion, as delineated in Roe v. Wade,
supra, and of the impact of Illinois’ denial of funding
for medically necessary abortions demonstrates that the
72 In Sherbert v. Verner, the Court ruled that a denial of un-
employment compensation benefits due to the claimant’s refusal to
work on Saturday burdened the claimant’s free exercise of her
religion. Even though the case focused on a First Amendment
right, the Court’s analysis in that case is like the penalty analysis
in equal protection cases and applies with equal force here:
“We turn first to the question whether the disqualification
for benefits imposes any burden on the free exercise of appel-
lant’s religion. We think it is clear that it does. In a sense
the consequences of such a disqualification to religious princi-
ples and practices may be only an indirect result of welfare
legislation within the State’s general competence to enact; it
is true that no criminal sanctions directly compel appellant to
work a six-day week. Bui .:‘s is only the beginning, not the
end, of our inquiry. For ‘[i]f tie purpose or effect of a law
is to impede the observance of one or all religions or is to
discriminate invidiously between religions, that law is con-
stitutionally invalid even though the burden may be charac-
terized as being only indirect.’ Braunfeld v. Brown, [366 U.S.
599] at 607. Here not only is it apparent that appellant’s
declared ineligibility for benefits derives solely from the prac-
tice of her religion, but the pressure upon her to forego that
practice is unmistakable. . . . Governmental imposition of such
a choice puts the same kind of burden upon the free exercise
of religion as would a fine imposed against appellant for her
Saturday worship.” 374 U.S. at 403-04 (footnote omitted).
34
denial of funding unduly burdens the exercise of the
right to choose an abortion.
Roe v. Wade, its companion decision Doe v. Bolton,
410 U.S. 179 (1973), and their progeny, in analyzing the
woman’s fundamental privacy right encompassing the
abortion decision, have stressed several interests related
to that right and the abortion decision. Among these are
the following: the woman’s interest in her health; the
woman’s corollary interest in obtaining her physician’s
best medical judgment, untainted by nonmedical cca-
siderations such as her ability to pay; and the state’s
interest in the woman’s health. E.g., Roe v. Wade, supra,
410 U.S. at 158, 162-64.7*
The interest in the woman’s health has been emphasized
in several recent decisions. In Connecticut v. Menillo,
423 U.S. 9 (1975) (per curiam), the Court upheld the
state’s efforts to prohibit the performance of abortions by
nonphysicians because such a prohibition promoted the
health of the women affected. In Planned Parenthood v.
Danforth, 428 U.S. 52, 75-79 (1976), and Colautti v.
Franklin, 439 U.S. 379, 398-400 (1979), the Court struck
down state regulations adverse to the health interests of
the women affected. See also Williams v. Zbaraz, 99
S. Ct. 2095, 2098-99 (1979) (Stevens, J.) (denial of
stay). The interest of a woman in securing the sound
medical judgment of her physician has likewise been a
738 Of course, Roe v. Wade also recognized a state interest in po-
tential life. That interest, addressed at pp. 42-43 infra, is not dis-
cussed here because it is not infringed by the Illinois statute and
because this Court has emphasized that it cannot override the
interest in the woman’s life and health. See Roe v. Wade, supra,
410 U.S. at 164-65; Colautti v. Franklin, 439 U.S. 379, 400 (1979).
™4 In Planned Parenthood, the Court invalidated a prohibition on
the use of a method of abortion that was safer for the woman
than various alternative methods. In Colautti, the Court held that
a statute appearing to give fetal existence priority over the health
of the woman was unconstitutional.
ES a ee
35
focus in a number of recent decisions. See, e.g., Doe v.
Bolton, supra, 410 U.S. at 191-92; Planned Parenthood
V. Danforth, supra, 428 U.S. at 63-64; Colautti v. Frank-
lin, supra, 439 U.S. at 387-88, 393-94.75
Illinois does not and cannot argue that, like the state
action in Menillo, its denial of Medicaid funding for
medically necessary abortions promotes the health of
womer.. Instead, like the statutes in Planned Parenthood
and Colautti, the Illinois statute can serve only to inter-
fere substantially with the woman’s interest in her health
and to thwart rather than advance the state’s interest in
her health.
By definition, Medicaid-eligible women do not have suf-
ficient income and resources to meet the costs of neces-
sary medical services. The denial of funding leaves these
women with few courses of action other than forgoing
needed abortions or procuring the additional funds neces-
sary to finance legal abortions.** Because an abortion
is medically necessary only when it is likely that preg-
nancy or childbirth will entail excessive risks, forgoing
such an abortion necessarily exposes a woman to a sig-
nificant possibility of health damage or death. Even if
See Part I, supra, for discussion of the factors that only a
physician can evaluate.
76 Other possible courses of action include obtaining free abor-
tions, attempting self-abortions, and procuring cheap illegal or
“back alley” abortions. However, few free abortions are available,
and the medical system cannot reasonably be expected to absorb
the cost of abortions for all Medicaid-eligible women who need
them. Abortions and the Poor: Private Morality, Public Responsi-
vility 28 (Alan Guttmacher Inst. 1979). Conclusive evidence on the
extent to which the lack of funding is forcing or will force resort
to self-abortions and back alley abortions is difficult to gather. Early
evidence appeared to indicate that few such abortions were occur-
ring, but more recent data suggest an increase in such abortions.
See Center for Disease Control, Health Effects of Restricting Fed-
eral Funds for Abortion—United States, 28 Morbidity & Mortality
Weekly Report 37 (1979) and unpublished data available from the
CDC, cited in The Atlanta Constitution, Feb. 12, 1980, at 3-A, col. 2.
36
a woman ultimately is able to secure the funds to pay
for an abortion,” the delay that occurs while she collects
the funds itself involves health risks and also magnifies
the risks inherent in the abortion procedure.”*
The woman’s interest in her physician’s medical judg-
ment is similarly infringed by the Illinois statute. The
absence of funding through the channels normally used
by the indigent patient and her physician for medically
necessary treatment injects a nonmedical factor—money
—into the physician’s evaluation of the woman’s needs.
Indeed, the lack of funding may effectively remove from
the physician’s consideration the one form of treatment
that may be the most appropriate means of preserving
his patient’s health.
Memorial Hospital v. Maricopa County, supra, estab-
lishes that when the exercise of a constitutional right is
burdened by the withholding of funding for medical care
that is necessary for the preservation of health, such a
deprivation impinges upon the exercise sufficiently to
invoke strict scrutiny under the Equal Protection Clause.
The Court there held that a temporary denial to indigents
of nonemergency health care penalized the exercise of
the right to travel because it subjected those affected to
“the danger of a substantial and irrevocable deteriora-
tion of .. . health,” though not to an immediate risk of
death. 415 U.S. at 259-61. Further, as Justice Black-
mun noted in Singleton v. Wulff, 428 U.S. 106, 118-19
n.7 (1976): “For a doctor who cannot afford to work
™ The woman may resort to obtaining the necessary funds for
the abortion out of general public assistance, her only other ready
source of money, and thereby deprive herself or her family of other
basic necessities.
78 As was fully discussed in Part I above, for all of these reasons
the District Court properly found that the denial of funding for
medically necessary abortions will substantially increase maternal
mortality and morbidity among those affected. Zbaraz v. Quern,
469 F. Supp. 1212, 1220 (N.D. Ill. 1979).
el a iene le es
7 OR AR Dee. ee ee
87
for nothing, and a woman who cannot afford to pay him,
the State’s refusal to fund an abortion is as effective
an ‘interdiction’ of it as would ever be necessary.” ™
In short, when measured against prior decisions of this
Court, Illinois’ denial of funding for medically necessary
abortions clearly penalizes and nearly interdicts the exer-
cise of a fundamental right, and, accordingly, should be
subjected to strict scrutiny under the Equal Protection
Clause.” To avoid such scrutiny, the appellants rely
heavily on Dandridge v. Williams, 397 U.S. 471 (1970),
and on Maher v. Roe, supra. See, e.g., Miller Brief at
76, 79; Williams Brief at 37, 48, 64-65, 67-69; United
States Brief at 51-53. In Maher the Court did hold that
a statute precluding Medicaid funding of certain abor-
tions did not have to withstand strict scrutiny. Maher
v. Roe, supra, 482 U.S. at 474, 477. There is a critical
distinction between this case and Maher, however, which
renders Maher’s holding inapplicable here.
Maher addressed demands for funding of nonthera-
peutic abortions. Jd. at 466-67. Therefore, the health
interests that are central to this case and that are in-
7 See also Williams v. Zbaraz, supra, 99 S. Ct. at 2098, 2099
(recognizing that, without funding, many if not most indigent
women for whom abortions are medically necessary will not be able
to have them, and their constitutional right to choose abortion will
be meaningless).
8° As the District Court below indicated, the equal protection
analysis subsumes due process analysis. Zbaraz v. Quern, supra,
469 F. Supp. at 1216 n.5. Because the funding denial unduly bur-
dens and nearly interdicts the exercise of a fundamental right, it
could appropriately be analyzed under the Due Process Clause of
the Fourteenth Amendment. See Maher v. Roe, supra, 432 U.S. at
484-89 (Brennan, Marshall, and Blackmun, JJ., dissenting) ; cf.
Zablocki v. Redhail, supra, 434 U.S. at 391-96 (Stewart, J., con-
curring). The funding denial clearly disturbs the balance of inter-
ests struck in Roe v. Wade, by establishing the state’s preference
for fetal existence over the health of the woman, even during the
first two trimesters of pregnancy.
nL aes Reamer TT a ee
38
terests of the state as well as of the woman * simply
were not implicated in Maher. Moreover, in seeking fund-
ing for nontherapeutic abortions, the plaintiffs in Maher
were, in effect, seeking more favorable treatment than
other Medicaid-eligible persons received, for the Medicaid
program generally covers only medically necessary serv-
ices, not nontherapeutic ones. See id. Thus, unlike the
present case, Maher did not involve discrimination among
medically necessary treatments, and the denial of fund-
ing there did not expose the pregnant plaintiffs to sub-
stantial deleterious effects on their health.®
Dandridge v. Williams, supra, likewise is inapposite,
for two reasons. First, as the Court in Dandridge itself
noted, the regulation in Dandridge, which allocated wel-
fare funds among eligible families, did not affect free-
doms guaranteed by the Bill of Rights. Dandridge v.
Williams, supra, 397 U.S. at 484; see Department of
Agriculture v. Moreno, 413 U.S. 528, 544 (1973) ( Doug-
las, J., concurring). As the Court reasoned in Weber v.
Aetna Casualty & Surety Co., 406 U.S. 164, 172 (1972):
“Though the latitude given state economic and social
regulation is necessarily broad, when state statutory
classifications approach sensitive and fundamental per-
51 Roe v. Wade, supra, 410 U.S. at 154, 159, 162-63.
*2 This distinction also undercuts appellants’ reliance on an ob-
servation appearing in a footnote in the Maher opinion: “Shapiro
and Maricopa County did not hold that States would penalize the
right to travel interstate by refusing to pay the bus fares of the
indigent travelers.” Maher v. Roe, supra, 432 U.S. at 474-75 n.&.
Appellants seize upon this statement as support for their argument
that Illinois does not penalize the exercise of the right to seek an
abortion by refusing to pay for it. See Miller Brief at 76; Williams
Brief at 40, 68. The Court’s observation in Maher, however, sug-
gests only that states have no affirmative obligation, in the absence
of other factors, to pay for the means to effectuate certain rights;
it does not mean that states that generally provide payment for
medically necessary services can choose to exclude payment for one
such service, when that exclusion interferes with the effectuation
of a fundamental right.
A litt wat atts
39
sonal rights, this Court exercises a stricter scrutiny.”
Unlike the classification in Dandridge, the Illinois classifi-
cation in denying funding for medically necessary abor-
tions imposes a substantial impediment to the exercise
of such sensitive and fundamental personal rights.
Second, the premise of Dandridge was that, because
the state’s welfare funds were finite, an increase in the
benefits for those who claimed that they were treated
unfairly would have necessitated a decrease in the bene-
fits of others. Dandridge v. Williams, supra, 397 U.S. at
479; see Jimenez v. Weinberger, 417 U.S. 628, 633
(1974). That is not the situation in the case now before
the Court. Because abortions are significantly less expen-
sive than the medical care associated with full-term
pregnancies and childbirth,® the allocation of public funds
for abortions will increase the amount of funds avail-
able for other purposes.“ Dandridge thus is inapplicable
on this ground as well.
In sum, the discrimination imposed by the Illinois
statute between indigent women in medical need of abor-
tions and indigent persons in need of other medical
services impinges upon the fundamental right to seek an
abortion and should be subjected to strict scrutiny.
B. The Illinois Statute Does Not Further A Compelling
State Interest.
A statute subjected to strict scrutiny under the Equal
Protection Clause must further a compelling state inter-
83 Indeed, as Justice Stevens noted in denying a stay of the Dis-
trict Court’s order in this case: “[I]t is less expensive for the
State to pay the entire cost of abortion than it is for it to pay only
its share of the costs associated with a full-term pregnancy.” Wil-
liams v. Zbaraz, supra, 99 S. Ct. at 2098 (emphasis added).
8* Cf. Jimenez v. Weinberger, swpra, 417 U.S. at 633 (Dandridge
distinguished; in Jimenez, there was no showing that correction of
the invalid classification would significantly impair the fund or
necessitate a reduction in the scope of persons benefited).
40
est if it is to stand. E.g., Memorial Hospital v. Maricopa
County, supra, 415 U.S. at 254, 262. As the District
Court below correctly concluded, and as is more fully
discussed in Part II.C. below, the Illinois denial of fund-
ing for medically necessary abortions does not even ra-
tionally further a legitimate state interest. The denial
a fortiori does not further a compelling state interest.
C. The Illinois Statute Does Not Rationally Further A
Legitimate State Interest.
Even if a statutory classification neither impinges
upon a fundamental right nor discriminates against a
suspect class, it still must be rationally related to a
legitimate governmental purpose. Maher v. Roe, supra,
432 U.S. at 478. As the District Court’s analysis makes
clear, however, the state interests asserted below do not
support the Illinois funding discrimination between med-
ically necessary abortions and other medically necessary
services.“ Moreover, the record shows that whatever
85 On this appeal, appellants raise several justifications not of-
fered below. These justifications, untimely raised, either are not
legitimate state interests or are not furthered by the statute. For
example, appellants postulate an interest in avoiding spending pub-
lic funds, raised by taxes, to support an activity that many tax-
payers find morally repugnant. E£.g., Miller Brief at 80; Williams
Brief at 57, 61-62; United States Brief at 55. This interest is not
legitimate for purposes of equal protection analysis. As the Court
stated in Department of Agriculture v. Moreno, supra, 413 U.S. at
534: “[I]f the constitutional conception of ‘equal protection of the
laws’ means anything, it must at the very least mean that a bare
congressional desire to harm a politically unpopular group cannot
constitute a legitimate governmental interest.” [Emphasis the
Court’s.] See also Weinberger v. Salfi, supra, 422 U.S. at 772 (quot-
ing Moreno); Memorial Hospital v. Maricopa County, supra, 415
U.S. at 266 (state may not maintain political acceptability of pro-
grams by excluding an unpopular class from benefits) ; cf. Examin-
ing Board of Engineers v. Flores de Otero, 426 U.S. 572, 605 (1976)
(“[asserted] justification amounts to little more than an assertion
that discrimination may be justified by a desire to discriminate” ).
Taxpayer wishes cannot justify the infringement of others’ rights;
ee ee eee
Oe em aiunials
41
permissible interests are now asserted to justify singling
out medically necessary abortions for exclusion from the
Medicaid program were far from the minds of the Illinois
legislators who enacted the statute; the real purposes of
the statute are impermissible ones.
The District Court properly disposed of the assertion
of a state interest in limiting public welfare expenditures
and allocating scarce funds. The record clearly estab-
lishes that an abortion costs significantly less than a
normal full-term pregnancy and delivery. Therefore, it
obviously costs less than an abnormal pregnancy and
birth requiring more than normal medical care. Zbaraz
Vv. Quern, supra, 469 F. Supp. at 1218; see Williams v.
Zbaraz, supra, 99 S. Ct. at 2098. Additionally, as a
result of the Illinois statute, the state may incur costs
of placing children their mothers cannot care for, costs
of care for abnormal children, and increased welfare
costs for children the mothers cannot support. Any asser-
tion of a fiscal interest in the limitation of abortion
funding is frivolous.
The appellants have emphasized a second interest, that
in encouraging childbirth, because this Court in Maher
recognized that the encouragement of normal childbirth
is a legitimate state interest. Miller Brief at 78-80;
the Bill of Rights and the Fourteenth Amendment were designed
in part precisely to shield certain rights and liberties of minorities
from encroachment by the majority or a more powerful minority.
Cf. Glasson v. City of Louisville, 518 F.2d 899, 905-06 (6th Cir.),
cert. denied, 423 U.S. 930 (1975).
The intervening appellants also suggest an interest in preventing
fraud. Williams Brief at 76-83. This Court provided a sufficient
answer to this argument in Roe v. Wade, supra, 410 U.S. at 166: “If
an individual practitioner abuses the privilege of exercising proper
medical judgment, the usual remedies, judicial and intra-professional,
are available.” Guarding against fraud by blocking access to abor-
tions by indigents who need them is irrational. Cf. Shapiro v.
Thompson, supra, 394 U.S. at 636; Examining Board of Engineers
v. Flores de Otero, supra, 426 U.S. at 606.
42
Williams Brief at 48, 56; United States Brief at 57-64;
see Maher v. Roe, supra, 432 U.S. at 477.. The District
Court also correctly found that this interest, the boun-
daries of which are defined by Roe v. Wade and Maher
Vv. Roe, does not support the Illinois statute.
Roe v. Wade emphasized that the state has two in-
terests related to pregnancy which may justify regula-
tions affecting abortion. One is in the health of the
woman and the other is in the potential life of the fetus.
Both of the state’s interests exist throughout a pregnancy
though they do not become compelling until certain points
during the pregnancy. Roe v. Wade, supra, 410 U.S. at
162-63. Maher recognized that the state could take
certain actions to implement its interest in potential life,
even during the first two trimesters, where the health of
the woman, or the state’s interest in that health, was not
at risk. Maher did not, however, accelerate the time at
which the state’s interest in potential life becomes com-
pelling or authorize a state to give fetal life priority
over the life or health of the woman. See Colautti v.
Franklin, supra, 439 U.S. at 400.
On the contrary, Roe v. Wade, supra, 410 U.S. at 163-
64, made it clear that the state may not proscribe an
abortion even after viability “when it [the abortion] is
necessary to preserve the life or health of the mother.”
(Emphasis added.) As Justice Stevens pointed out in
denying appellants’ applications for a stay in this case:
“Roe v. Wade, 410 U.S. 113, . . . itself establishes
that the State’s interest in potential life is never so
great that it can outweigh the woman’s interest in
her health . . . . Moreover, the State clearly has an
interest in preserving and protecting the life and
health of the mother, as well as in promoting child-
86 The state’s interest in the woman’s health becomes compelling
first, approximately at the end of the first trimester. The interest
in potential life becomes compelling at the point of viability. Jd.
43
birth. In this case, where we deal only with ‘medi-
cally necessary’ abortions, the weight to be accorded
to the State’s interest in childbirth must necessarily
be diminished by its acknowledged interest in the
health of the mother.” Williams v. Zbaraz, supra,
99 S. Ct. at 2098.
Furthermore, it must be remembered that the state
interest in promoting childbirth which this Court ac-
knowledged in Maher was repeatedly described as an
interest in promoting normal childbirth. Maher v. Roe,
supra, 432 U.S. at 477, 479; see also Beal v. Doe, 432
U.S. 438, 446 (1977). Yet the Illinois statute does not
further this legitimate interest at all.
Childbirth cannot be “normal childbirth,” we submit,
when it results from the inability to obtain a medically
necessary abortion. It does not “encourage normal child-
birth” to deny a poor woman the funds to terminate a
pregnancy where that pregnancy may cause or exacerbate
a condition threatening her health or life. It does not
“encourage normal childbirth” to deny a poor woman
funds to terminate a pregnancy likely to end, at a later
date, in surgical intervention that could pose a threat
to her life. It does not “encourage normal childbirth” to
force a woman with serious psychological problems to un-
dergo the extreme stress of an unwanted pregnancy,
which might foreclose the possibility that she will conquer
her illness.
7 Moreover, even if the Illinois statute could be deemed to fur-
ther this or another permissible state interest asserted by the
parties, it does not rationally further such an interest. It is not
rational for a state to achieve even a legitimate state purpose by
deliberately inflicting harm on certain citizens. See Carey v. Popu-
lation Services International, 431 U.S. 678, 715-16 (1977) (Stevens,
J., concurring). This is especially true in this case, where the
state has an affirmative interest, recognized by this Court in Roe
v. Wade, in the maternal health that is harmed by the statute.
44
In short, none of the asserted state interests jus-
tifies the Illinois statute. Furthermore, a reading of the
legislative history (Appendix at 42-88) brings into stark
relief the true purposes of the statute: to implement a
belief that life begins at conception, and to discourage
or prevent all abortions that the legislators thought they
could reach—namely, those sought by poor women de-
pendent on public funds for medical care.** The statute
can be understood by those women only to mean that the
state wants to prevent them from obtaining abortions,
even at the expense of their health. Under Roe v. Wade,
such a legislative purpose cannot be upheld.
CONCLUSION
For all the foregoing reasons, the District Court’s
judgment that the Illinois statute is unconstitutional
should be affirmed.
Respectfully submitted,
MARGO K. ROGERS
JOHN E. HEINTZ
KAREN H. ROTHENBERG
BINGHAM B. LEVERICH
Covington & Burling
888 Sixteenth Street, N.W.
Washington, D.C. 20006
Of Counsel: Attorneys for Amici Curiae
EVE W. PAUL
Planned Parenthood Federation
of America, Inc.
February 1980
88 “This Court need not in equal protection cases accept at face
value assertions of legislative purposes, when an examination of
the legislative scheme and its history demonstrates that the as-
serted purpose could not have been a goal of the legislation.” Wein-
berger v. Wiesenfeld, 420 U.S. 636, 648 n.16 (1975) (citations
omitted).
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.