# Amicus Brief — Williams v. Zbaraz > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0492%3A21 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Brief - **Published:** January 1, 1980 - **Citation:** 448 U.S. 358 ## Text 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). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0492%3A21. Public record. Not legal advice.