Amicus Brief — John Ashcroft v. Planned Parenthood Association of Kansas City, Missouri, Inc.

MOTION FILED

gyi 29.1902 NO. 811625

Iu the

Supreme Court of the Anited States

Ocrosper Term, 1982

JOHN ASHCROFT, Attorney General of the State of Missouri,

and RALPH L. MARTIN, Prosecuting Attorney of Jackson

County, Missouri,

Petitioners,

v.

PLANNED PARENTHOOD ASSOCIATION OF

KANSAS CITY, MISSOURI, INC.,

NAIM S. KASSAR, M.D., REPRODUCTIVE HEALTH

SERVICES, and ALLEN S. PALMER, D.O.,

Respondents.

On Writ of Certiorari to the United States Court

of Appeals for the Eighth Cireuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE AND BRIEF AMICUS CURIAE OF

AMERICANS UNITED FOR LIFE IN

SUPPORT OF PETITIONERS

DENNIS J. HORAN

VICTOR G. ROSENBLUM

PATRICK A. TRUEMAN

THOMAS J. MARZEN

MAURA K. QUINLAN

230 N. Michigan—Suite 915

Chieago, II. 60601

312/263-5029

Attorneys for Americans

United for Life

UNITED STATES LAW PRINTING co., CHICAGO, ILLINOIS 60618 (312) 525-6581

In the

Supreme Court of the United States

Ocroser Tero, 1982

No. 81-1623

JOHN ASHCROFT, Attorney General of the State of Missouri,

and RALPH L. MARTIN, Prosecuting Attorney of Jackson

County, Missouri,

Petitioners,

v.

PLANNED PARENTHOOD ASSOCIATION OF

KANSAS CITY, MISSOURI, INC.

NAIM S. KASSAR, M.D., REPRODUCTIVE HEALTH

SERVICES, and ALLEN S. PALMER, DO.

Respondents.

On Writ of Certiorari to the United States Court

of Appeals for the Eighth Cireuit

MOTION OF AMERICANS UNITED FOR LIFE FOR

LEAVE TO FILE BRIEF AMICUS CURIAE

IN SUPPORT OF PETITIONERS

MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE

Americans United for Life hereby respectfully moves

for leave to file the attached brief amicus curiae in sup-

port of petitioners in this case. Written consent of the

petitioners has been obtained and filed with the Clerk of

this Court. The consent of the attorney for respondents

was requested but refused.

Americans United for Life (AUL) is a national educa-

tional foundation organized to promote better understand-

ing of the humanity and value of unborn human life, and

to assure equal protection under law for all members of

the human family regardless of age, health, or condition

of dependency. The national office of Americans United

for Life is located in Chicago, Illinois. AUL is supported

by thousands of Americans from every state of the union.

This case, like others presently to be considered by this

Court, involves consideration of several broad areas of

abortion regulation, including the health regulation of first

trimester abortions (specifically through the requirement

of pathology reports), the health regulation of post-first

trimester abortions (specifically through the hospitaliza-

tion requirement), and the protection of live-born children

in post-viability abortions (specifically through the re-

quirement that a second physician attend the procedure).

This Court’s decision will have a profound effect nation-

ally on the validity of abortion regulations, and thus is of

central importance to the class of unborn children, as well

as the class of children aborted alive, all of whose interests

AUL seeks to promote.

The arguments offered by AUL are independent of those

suggested in petitioners’ cross-petition for a writ of cer-

tiorari, and if accepted by this Court, wouid be dispositive

of this case.

Respectfully submitted,

Dennis J. Horan

Victor G. Ros xRLUM

Patrick A. TrRuEMAN

Tuomas J. Manzen

Maura K. Quis) an

230 N. Michigan—Suite 915

Chicago, IL 60601

312/263-5029

Attorneys for Americans

United for Life

TABLE OF CONTENTS

oe PAGE

e SSIES Oe ili

e ᷑ . ̃¶ “ 1

V 2

e a 5

I. Strict Serutiny Is Not The Appropriate

Standard Of Review For The Challenged

ES, Fi ee ee 5

A. Strict Serutiny Is Only Appropriate When

Legislation Substantially Burdens the

Woman's Freedom to Deceide 5

B. Strict Scrutiny May Not Be Invoked Merely

Because Abortion Is Treated Differently

Than Other Medical Procedures 7

C. The Regulations at Issue Do Not Sub-

stantially Burden the Woman’s Freedom

to Decide: They Rationally Relate to Legi-

timate State Interests 9

II. Even Under Strict Serutiny Analysis, The Pro-

visions Are Constitutional — 0.000000... 13

A. The State’s Compelling Interest in the

Life of Infant Persons Justifies the Second

Physician Requirement 14

1. The State Has a Compelling Interest

in Actual Human Life 14

$i

PAGE

2. The Second Physician Requirement Is

e 15

3. The Requirement of a Second Physician

Is Not Overbroad: An Abandoned

D & E Procedure Might Produce a

c 16

B. The State’s Compelling Interest in Ma-

ternal Health Justifies the Pathology Report

and Hospitalization Requirements 19

rr IG I SE Se SOS REN oe 27

iii

TABLE OF AUTHORITIES

Cases

PAGE

Bellotti v. Baird, 428 U.S. 132 (19760 5

Bellotti v. Baird, 443 U.S. 622 (1979) (Bellotti II) . 6,8

10, 22

Carey v. Population Services International, 431 U.S.

RR RA ER! 4 Tes eet 2 5-6

Connecticut v. Menillo, 423 U.S. 9 (1975) . 3, 6, 9, 11, 19-21

Dandridge v. Williams, 397 U.S. 471 (19700) 9

Doe v. Bolton, 410 U.S. 179 (1973 20

Harris v. McRae, 448 U.S. 297 (1980) 2, 8, 11, 14, 19

Hodgson v. Lawson, 542 F.2d 1350 (8th Cir. 1976) — 7

Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61

gE REAR RON AOR” ee, eS HN 9

Maher v. Roe, 432 U.S. 464 (1977) ᷑ 7 5, 7-8, 10

McGowan v. Maryland, 366 U.S. 420 (1961) 8

Planned Parenthood Association of Kansas City, Mis-

souri v. Ashcroft, No. 79-4142-CV-C-H (W.D. Mo.

OG SS ̃ ͤ—— ee 24

Planned Parenthood Association of Kansas City, Mis-

souri v. Ashcroft, 655 F.2d 848 (8th Cir. 1981) ..7,9, 12, 24

Planned Parenthood of Central Missouri v. Danforth,

,, I eS passim

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

Whalen v. Roe, 429 U.S. 589 (197777777) 6

Word v. Poelker, 495 F.2d 1349 (8th Cir. 1974377 7

iv

Other Authorities

PAGE

Benson, R., Handbook of Obstetrics and Gynecology

. App. 4

Burnhill, Reducing the Morbidity of Vacuum Aspira-

tion Abortion, in Pregnancy Termination 146

(1979) —————— App. 3

Cates, Jr., Schulz, Gold & Tyler, Jr., Complications of

Surgical Evacuation Procedures for Abortions After

12 Weeks’ Gestation, in Pregnancy Termination 206

FF 17-18, 25-26

Cates, Jr., Schulz & Grimes, Dilatation and Evacuation

for Induced Abortion in Developing Countries: Ad-

vantages and Disadvantages, 11 Stud. Fam. Plan.

RD CIEE — 2 . 26

Centers for Disease Control, Annual Summary 1978

Er 24-25

Chicago Sun-Times, The Abortion Profiteers 1978

0 T 21-22

Gangai, An unusual surgical injury to the ureter, 109

RS ee ee App. 2

Gordon, Cervicovaginal fistula as a result of saline

abortion, 112 Am. J. Obstet. Gynecol. 578 (1972) ...App. 3

Grimes & Cates, Jr., abortion: methods and complica-

tions in Human Reproduction, 796 (1980) ....... App. 1,3

Grimes & Cates, Jr., Fatal uterine rupture during

oxytocin-augmented saline abortion, 130 Am. J.

Obstet. Gynecol. 591 (19789: App. 3

Lowensohn & Hibbard, Laceration of the ascending

branch of the uterine artery: A complication of ther-

apeutic abortion, 118 Am. J. Obstet. Gynecol. 36

1 17

v

PAGE

Me Donald & Aaro, Medical Complications of Induced

Abortion, 67 S. Med. J. 560 (1974) 0... App. 1

Merck Manual (13th ed. 1977) oe 18, App. 5

National Center for Health Statistics, Hospital Dis-

charge Survey Data, 1970-1976 (1972-1978) App. 4

Peterson, Dilatation and Evacuation: Patient Evalu-

ation and Surgical Techniques, in Pregnancy Termi-

, ͤ e App. 3

Rous, Major & Bordon, Rupture of the bladder sec-

ondary to uterine vacuum curettage: A case report

and review of the literature, 106 J. Urology 685

—— App. 2

Rubin, Cates, Jr., Gold, Rochat & Tyler, Jr., Fatal

Eetopie Pregnancy After Attempted Legal Induced

Abortion, 244 J. A. M. A. 1705 (1980 App. 4

Second Trimester Abortion: A Symposium by Cor-

respondence, 16 J. Reprod. Med. 47 (1976) 25

Walton, Immediate Morbidity on Large Abortion Serv-

ice, 72 N.Y. St. J. Med. 919 (19725 App. 3

Watson, Urologic Complications of Legal Abortion, in

New Perspectives on Human Abortion 135 (1981) App. 1

In the

Supreme Court of the United States

Octroser Term, 1982

No. 81-1623

JOHN ASHCROFT, Attorney General of the State of Missouri,

and RALPH L. MARTIN, Prosecuting Attorney of Jackson

County, Missouri,

Petitioners,

V.

PLANNED PARENTHOOD ASSOCIATION OF

KANSAS CITY, MISSOURI, NO.,

NAIM S. KASSAR, M.D., REPRODUCTIVE HEALTH

SERVICES, and ALLEN S. PALMER, D. o.,

Respondents.

On Writ of Certiorari to the United States Court

of Appeals for the Eighth Cireuit

——

BRIEF AMICUS CURIAE OF AMERICANS UNITED

FOR LIFE IN SUPPORT OF PETITIONERS

Americans United for Life (AUL) is a national educa-

tional foundation organized to promote better understand-

ing of the humanity and value of unborn human life, and

to assure equal protection under law for all members of

the human family regardless of age, health, or condition

of dependency. The national office of Americans United

for Life is located in Chicago, Illinois. AUL is supported

by thousands of Americans from every state of the union.

The Board of Directors and Officers of Americans United

for Life include the following:

OFFICERS

Chairman

DENNIS J. HORAN, ESQ.

Vice Chairmen

ERMA CLARDY CRAVEN

PROF. VICTOR G. ROSENBLUM

Secretary-Treasurer

JOSEPH R. STANTON, M.D.

Executive Director

STEVEN R. VALENTINE

BOARD OF DIRECTORS

JOHN E. ARCHIBOLD, ESQ.

Denver, Colorado

REV. CHARLES CARROLL

L iscopal Diocese of Colorado

ERMA CLARDY CRAVEN

Minneapolis, Minnesota

PROF. EUGENE F. DIAMOND, M.D.

Pediatrics

Loyola University, Chicago

PROF. ARTHUR J. DYCK

Population Ethics

Harvard University

JOHN F. HILLABRAND, M.D.

Toledo, Ohio

DENNIS J. HORAN, ESQ.

Chicago, Illinois

HENRY J. HYDE, ESQ.

Member of Congress

MILDRED F. JEFFERSON, M.D.

Boston, Massachusetts

LORE MAIER

Toledo, Ohio

KENNETH M. MITZNER, PH.D.

Los Angeles, California

PROF. JOHN T. NOONAN

Law

University of California

Dk. JACOB A. O. PREUS,

Former President

The Lutheran Church

Missouri Synod

PROF. PAUL RAMSEY

Department of Religion

Princeton University

HERBERT RATNER, M.D.

Child & Family Quarterly

Oak Park, Illinois

PROF. VICTOR G. ROSENBLUM

Law-Political Science

Northwestern University

JOSEPH R. STANTON, M.D.

Boston, Massachusetts

PROF. GEORGE H. WILLIAMS

Divinity - Church History

Harvard University

JASPER F. WILLIAMS, SR., M.D.

Obstetrics - Gynecology

PROF. WILL HERBERG

Philosophy and Culture

Drew U

1971 - 1977

PROF. DAVID W. LOUISELL

Law

University of California

1975 - 1977

2

This case, like others presently to be considered by this

Court, involves consideration of several broad areas of

abortion regulation, including the health regulation of first

trimester abortions (specifically through tue requirement

of pathology reports), the health regulation of post-first

trimester ebortions (specifically through the hospitaliza-

tion requirement), and the protection of live-born chil-

dren in post-viability abortions (specifically through the

requirement that a second physician attend the procedure).

This Court’s decision will have a profound effect nation-

ally on the validity of abortion regulations, and thus is of

central importance to the class of unborn children, as well

as the class of children aborted alive, all of whose interests

AUL seeks to promote.

SUMMARY OF ARGUMENT

The woman’s fundamental right to decide to terminate

her pregnancy does not require strict scrutiny of all legis-

lation that has any effect on abortion. Strict scrutiny

applies only to regulations which substantially burden the

woman in the exercise of her right. Harris v. McRae, 448

U.S. 297, 314 (1980).

Nor does the special treatment of abortion procedures

require strict equal protection analysis. Id. at 422. Only

regulations which prohibit or virtually prohibit abortions

or which provide a third party with a blanket veto trig-

ger strict scrutiny be impinging on the right to abortion.

A requirement that a second physician attend the abor-

tion of a viable child is primarily a child care regulation,

and only affects abortion indirectly by slightly raising the

cost. Thus, the burden on the right is insubstantial, and

the regulation must only survive the rational basis test.

Children aborted alive are full persons under the law.

Thus, a second doctor provision furthers the ultimate state

interest—protection of the lives of its citizens—and sur-

3

vives rational scrutiny. Further, this vital state interest

would justify the provision under strict scrutiny analysis.

Since any post-viability abortion can result in a live birth

—even a D & E, which might be abandoned in the event

of an unanticipated maternal complication, thus allowing

the possibility of infant survival—it is only proper that

the state provide adequate safeguards for its citizens

aborted alive.

The insignificant increased abortion cost resulting from

the pathology report requirement does not impinge on the

woman’s right. Pathology reports are an efficient means

of reducing maternal mortality. Such a requirement would

thus further a legitimate state interest and survive ra-

tional scrutiny.

Even under strict scrutiny, the pathology report require-

ment is constitutional. The state has a compelling interest

in providing basic care conditions ensuring maximum

safety for the woman having an abortion at any stage of

pregnancy. Connecticut v. Menillo, 423 U.S. 9, 10-11 (1975).

Pathology reports directly reduce maternal mortality at

only a minor increased cost and thus serve the state’s

compelling interest in maternal health. Roe v. Wade, 410

U.S. at 163. Furthermore, the requirement is especially

necessary in order to combat abusive practices in abortion

clinics. Pathology reporting essentially safeguards the

woman in the exercise of her right, and hence srrvives

strict scrutiny.

The post-first trimester hospitalization requirement nei-

ther prohibits abortion nor provides for a third-party veto.

Strict scrutiny is, therefore, inappropriate. By providing

an environment especially conducive to maternal safety,

the hospitalization requirement furthers the state interest

in maternal health and survives rational scrutiny.

4

Should this Court apply strict scrutiny, the hospitaliza-

tion requirement remains constitutional. Complication

rates for abortion increase dramatically after the first tri-

mester. Hospitals possess such vital facilities as blood

banks and intensive care units available on a 24-hour

basis. This allows for maximum treatment capacities, and

a hospitalization requirement thus directly furthers the

staate’s compelling interest in maternal life and health.

The abortion regulations at issue before this Court are

well within constitution limits, and represent the state’s

pursuit of legitimate, indeed compelling interests. They

must be upheld. 3

I.

STRICT SCRUTINY IS NOT THE APPROPRIATE

STANDARD OF REVIEW FOR THE CHALLENGED

PROVISIONS. —

Respondents challenge Missouri’s statutory post-abor-

tion pathology report requirement, its post-first trimester

abortion hespitalization requirement, and its requirement

that a second physician be present for post-viability abor-

tions. Review begins with the threshold question of wheth-

er the regulations at issue impinge upon any fundamental

right. Maher v. Roe, 432 U.S. 464, 470 (1977). If they do,

strict scrutiny is appropriate. Id. If not, the regulations

face ‘‘the less demanding test of rationality.’’ Jd. at 478.

A. Strict Scrutiny Is Only Appropriate When Legislation

Substantially Burdens the Woman’s Freedom to De-

cide.

Whether abortion regulations impinge upon a woman’s

right to choose—i.e., whether they trigger strict scrutiny

--depends upon whether such regulations ‘‘substantially

limit access to the means of effectuating that decision.’’

Carey v. Population Services International, 431 U.S. 678,

688 (1977). Such substantial burdens* on the abortion

* By “substantial burden” is meant a state-imposed restriction on

the exercise of a right which is sufficiently burdensome so as to

constitute an impingement, thus triggering strict scrutiny. To with-

stand strict scrutiny, the restriction must be justified by a sufficiently

compelling interest. Otherwise, the restriction constitutes an “undue

burden” and is unconsitutional. An “insubstantial burden” is a

restriction with an impact that is insufficient to trigger strict

scrutiny.

6

right appear only in certain limited contexts, viz.,

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

regulations almost tantamount to a prohibition,’’ see

Planned Parenthood of Central Missouri v. Danforth, 428

U.S. 52, 92, 102 (1976) (concurring opinions of Stewart,

J., and Stevens, J.), and absolute third-party vetoes, see,

e.g., Bellotti v. Baird, 443 U.S. 622, 643 (1979) (Bellotti

II).

Strict scrutiny is not required merely because some indi-

viduals will be ‘‘discouraged’’ from exercising a specific

choice. See Whalen v. Roe, 429 US. 589, 602-603 (1977).

In such a case, there is no absolute or near absolute pro-

hibition. Nor is there a blanket third-party veto. There-

fore, it cannot ‘‘be said that any individual has been de-

prived of the right to decide independently.“ Id. at 603.

Similarly, a substantial burden on the abortion deci-

sion is not created by a statutory requirement merely be-

cause it might increase the cost of an abortion. In Dan-

forth, this Court held that recordkeeping and reporting

requirements, which certainly add to the cost of an abor-

tion, did not have a legally significant impact or conse-

quence on the abortion decision,’’ 428 U.S. at 81, and thus

did not trigger strict serutiny. See also Connecticut v.

Menillo, 423 U.S. 9 (1975) (requirement that a licensed

physician perform the abortion). These cases make it

clear that strict scrutiny should be ‘‘invoked only when

the state regulation entirely frustrates or heavily burdens

the exercise of constitutional rights in this area.“ Carey

v. Population Services International, 431 U.S. 678, 7

(1977) (Powell, J., concurring in part and concurring in

the judgment) (emphasis added).

7

B. Strict Scrutiny May Not Be Invoked Merely Because

Abortion Is Treated Differently Than Other Medical

Procedures.

The mere differential treatment of abortion from other

medical procedures does not trigger strict scrutiny. Equal

protection analysis applies strict scrutiny to the disparate

treatment of a suspect class of individuals based on their

status. But abortion implicates no suspect class. See Maher

v. Roe, 432 U.S. at 470. Moreover, differential treatment

of procedures cannot be equated with differential treat-

ment of individuals. Hence, strict scrutiny cannot be in-

voked under equal protection principles when abortion is

treated differently than other medical procedures.

Even so, in the context of its analysis of the post-abor-

tion pathological report requirement, the court of appeals

apparently invoked strict scrutiny merely because abor-

tion had been singled out and treated differently than other

medical procedures:

ere the state regulates abortions beyond its regu-

lation of similar surgical procedures, that difference

in treatment must be shown to be necessitated by the

particular characteristics of the abortion procedure.

See Word v. Poelker, [495 F.2d 1349, (8th Cir.

1974) ].“ Hodgson v. Lawson, 542 F.2d 1350, 1357-58

(8th Cir. 1976) (emphasis added, footnote omitted).

[The question here is whether Missouri has shown

any reason why the physicians and medical facilities

performing abortions cannot make medical judgments

about the desirability of a pathology report in an

individual case, while physicians and medical facili-

ties performing all other types of surgery are free to

exercise their professional judgment.

Planned Parenthood Association of Kansas City, Missouri

v. Ashcroft, 655 F.2d 848, 870 (8th Cir. 1981).

8

This Court has repeatedly rejected such an analysis.

In Planned Parenthood of Central Missouri v. Danforth,

the plaintiffs argued ‘‘that the State should not be able

to impose any recordkeeping requirements that signifi-

eantly differ from those imposed with respect to other,

and comparable, medical or surgical procedures.’’ 428 U.S.

52, 80-81 (1976). This Court rejected that argument and

sustained the requirements. Jd. The Court reaffirmed this

holding in the context of consent provisions, Bellotti v.

Baird, 428 U.S. 132, 148-150 (1976), and Medicaid fund-

ing, Maher v. Roe, 432 U.S. 464, 473 (1977). More recently,

this Court has stressed that ‘‘the unique nature and con-

sequences of the abortion decision’’ fully justifies special

treatment. Bellotti v. Baird, 443 US. 622, 643 (1979) (Bel-

lotti II). In a still more recent case, this Court dispensed

of the equal protection analysis suggested by the court of

appeals in the instant case:

The guarantee of equal protection ... is not a source

of substantive rights or liberties, but rather a right

to be free from invidious discrimination in statutory

classifications and other governmental activity. It is

well settled that where a statutory classification does

not itself impinge on a right or liberty protected by

the Constitution, the validity of classification must be

sustained unless ‘‘the classification rests on grounds

wholly irrelevant to the achievement of [any legiti-

mate governmental] objective.“ McGowan v. Mary-

land, 366 U.S. [420, 425 (1961).

Harris v. McRae, 448 U.S. 297, 422 (1980) (footnote omit-

ted).

Thus, unless the Missouri regulations at issue here sub-

stantially burden the right to choose abortion, they cannot

be subjected to strict scrutiny, regardless of whether they

treat abortion differently than other medical procedures.

9

All that the state need demonstrate is that these abortion

regulations are not ‘‘wholly irrelevant’’ to the achieve-

ment of some valid state interest in order to sustain them

against an equal protection attack. Abortion regulations

cannot be stricken merely because similar regulations have

not been enacted with regard to other medical procedures.

As this Court bas held, ‘‘the Equal Protection Clause does

not require that a State must choose between attacking

every aspect of a problem or not attacking the problem at

all. Lindsley v. Natural Carbonic Gas Co., 220 US. 61

(1911) ]. It is enough that the State’s action be ration-

ally based and free from invidious discrimination.’’ Dan-

dridge v. Williams, 397 U.S. 471, 486-487 (1970).

C. The Regulations at Issue Do Not Substantially Burden

the Woman’s Freedom to Decide; They Rationally

Relate to Legitimate State Interests.

1. Requirement of Second Physician.

The court of appeals applied the strict scrutiny test to

Missouri’s requirement that a second physician attend all

post-viability abortions. Noting that this requirement

would increase the expense of an abortion, the court of

appeals held that ‘‘a government-imposed regulation that

adds to the cost of abortion is a government-created

obstacle and is subject to strict serutiny.““ Planned Parent-

hood v. Ashcroft, 655 F. 2“ 848, 864 (8th Cir. 1981).

This broad holding not only conflicts with Danforth and

Menillo, but also with the court of appeals’ own holding

that strict scrutiny is inappropriate in considering record-

keeping requirements even though they raise the price of

an abortion. Id. at 871. The second physician requirement

does not prohibit abortions, as did the regulation before

this Court in Roe v. Wade, 410 U.S. 113 (1973). Nor does

10

the provision provide for a blanket veto, as in Planned

Parenthood of Central Missouri v. Danforth, 428 US. 52

(1976), and Bellotti v. Baird, 443 U.S. 622 (1979) (Bellotti

II). Thus a proper analysis of the second physician re-

quirement would address the question of whether the in-

crease in cost is so great as to be ‘‘drastically limiting

lof] the availability and safety of the desired service.“

Maher v. Roe, 432 U.S. 464, 472 (1977).

Post-viability abortions, with their high attendant risks,

will almost certainly be performed in a hospital. Given

the easy availability of pediatricians in a hospital setting,

it is unlikely that the requirement that a second physician

attend the abortion procedure will so increase the relative

cost of the abortion as to preclude women from choosing

to have an abortion. Hence, the regulation does not signi-

ficantly limit a woman’s access to abortion, and can-

not be said to place a substantial burden on the woman’s

right to choose.

Indeed, the second doctor requirement cannot properly

be said to implicate the right to abortion at all. It is in-

tended to provide assistance to infants born alive after

termination of pregnancy, and thus relates to abortion in,

at most, a very indirect fashion. The second physician re-

quirement is an infant care regulation, not an abortion

regulation.

Surely, this Court would not hold that a state require-

ment that a physician (as opposed to a mid-wife) must

attend childbirth in order to assure proper medical atten-

tion to newborns ‘‘burdens’’ the right to childbearing. It

would not hold that a state requirement that every new-

born child must be examined by a physician or that certain

drugs or vaccinations must be provided to the child ‘‘bur-

dens’’ the right to childbearing. Neither should it hold

11

that a state requirement that a second physician be avail-

able during a post-viability abortion to assist a surviving

child ‘‘burdens’’ the right to choose abortion.

The remaining question then is whether the [second

physician provision] is rationally related to a legitimate

governmental objective. Harris v. McRae, 448 U.S. 297,

324 (1980). Certainly, the state maintains a most com-

pelling interest in the life and health of any infant person

born alive as the result of an attempted abortion. The

presence of a second physician with the specific duty to

care for a child surviving a post-viability abortion signifi-

cantly furthers this interest since it may be presumed that

the physician who attempts to kill the fetus before birth

would not actively seek to assist a surviving infant.“

2. Pathology Reports.

The court of appeals held that the requirement of patho-

logy reports for all abortions, like the second physician

requirement, increased the cost of an abortion. 655 F.2d

at 869. As already noted, strict scrutiny does not apply

simply because a regulation raises the cost of an abortion.

See Planned Parenthood of Central Missouri v. Danforth,

428 U.S. 52 (1976); Connecticut v. Menillo, 423 US. 9

(1975). In Danforth, this Court disclaimed the need for

strict scrutiny and upheld cost-increasing recordkeeping

requirements because they, like the pathology reports at

issue here, can be useful to the State’s interest in pro-

tecting the health of its female citizens, and may be a

resource that is relevant to decisions involving medical

experience and judgment.“ Id. at 81 (footnote omitted).

* The record clearly indicates the need for a second physician to

provide proper care for a child aborted alive. See testimony of Dr.

Crist. Tr. 431, 435 (woman has a right to a dead fetus; never

attempts to save fetus).

12

Since a minor cost increase is the only effect of this provi-

sion on the woman’s decision, strict scrutiny should not

be applied. =e

When examined under the rational basis test, the patho-

logy report requirement is clearly constitutional. The

state has an important and legitimate interest in the

health of the mother.“ Roe v. Wade, 410 U.S. 113, 163

(1973). [Pathology reports are useful and even neces-

sary in some cazes,’’ and may warn of serious, possibly

fatal disorders.’’ Planned Parenthood v. Ashcroft, 655

F. ad at 870.

As illustrated in the Appendix, pathology reports are

crucial in the detection of life-threatening conditions.

Without regular pathology reporting, the incidence of

maternal deaths from abortion will increase. Complica-

tions that pathology reports can detect include uterine

perforation, rupture of maternal. organs, incomplete abor-

tions, infection and excessive bleeding. Each can lead to

maternal death. The report can also warn of such urgent

and potentially lethal conditions as ectopic pregnancy,

hydatidaform mole (degenerate pregnancy), and cherio-

carcinoma (a highly malignant cancer). See Appendix.

Maternal mortality is a concern central to the right ree-

ognized in Roe, 410 U.S. at 163 (strength of state inter-

est proportional to mortality rate for abortion and child-

birth). Pathology reports, which directly and efficiently

reduce the number of abortion deaths, serve the legitimate

and compelling state interest in maternal life and health.

3. Hospitalization Requirement.

Similar considerations support the constitutionality of

the post-first trimester hospitalization requirement. Like

the pathology report requirement, this provision aims to

enhance maternal health and reduce maternal deaths. It

13

does not prohibit abortions. It does not provide for an

absolute third-party veto, nor does it so increase the cost

of an abortion that it would drastically limit access to

abortion. Therefore, it cannot be said to substantially

burden the woman’s decision to have an abortion. Hence,

the hospitalization requirement is not subject to strict

serutiny.*

Under the rational basis test, the hospitalization re-

quirement is clearly constitutional. The state has a legiti-

mate—indeed compelling—interest in maternal health

after the first trimester. Roe v. Wade, 410 U.S. 113, 162

(1973). Hospitals, with their superior treatment facilities

—ineluding intensive care units, blood banks, and various

other equipment (all available 24 hours a day), as well

as sizable staffs, including a wide variety of experts and

specialists—provide an environment which is especially

conducive to the protection of maternal health. Therefore,

the post-first trimester hospitalization requirement is

rationally related to the legitimate and compelling state

interest in maternal health and is constitutional.

II.

EVEN UNDER STRICT SCRUTINY ANALYSIS, THE

PROVISIONS ARE CONSTITUTIONAL.

Even were this Court to apply strict scrutiny and re-

quire a ‘‘compelling state interest,’’ these provisions

should be upheld. In its general form, the ‘‘compelling

* Roe indicated that a hospitalization requirements might be ac-

ceptable after the first trimester. 410 U.S. at 163. This implies that

such a requirement could reasonably relate to the state’s compelling

interest in maternal health. This does not necessarily imply that a

hospitalization requirement must always be subjected to strict

scrutiny.

14

interest standard states that the legislative enactments

must be narrowly drawn to express only the legitimate

state interests at stake.’’ See Roe v. Wade, 410 U.S. 113,

155 (1973), and cases there cited.

The specific context of abortion rights pr es a speci-

fic interpretation of the ‘‘narrowly drawn’’ requirement.

With respect to the state’s interest in potential human

life, the statute is ‘‘narrowly drawn’’ even if the state

goes so far as to proscribe all abortions except those per-

formed to preserve the life or health of the mother. Id. at

163-164. With respect to the state’s interest in maternal

health, a regulation is narrowly drawn if it ‘‘reasonably

relates to the preservation and protection of maternal

health.“ Id. at 163 (emphasis added).

A. The State’s Compelling Interest in the Life of Infant

Persons Justifies the Second Physician Requirement.

1. The State Has a Compelling Interest in Actual

Human Life.

The state possesses a legitimate interest in protect-

ing the potentiality of human life.“ Roe v. Wade, 410 US.

113, 162 (1973). Throughout pregnancy, abortion ‘‘is in-

herently different“ from other medical procedures „be-

cause no other procedure involves the purposeful termina-

tion of a potential life.“ Harris v. McRae, 448 US. 297,

325 (1980). After viability the state’s interest becomes

‘‘compelling,’’ and, because of the unique importance of

this interest, the state may go so far as to proscribe

abortion . . . except when necessary to preserve the life

or health of the mother.’’ Roe v. Wade, 410 U.S. at 163-

164.

But when an infant is born or aborted alive, the state’s

interest becomes complete. At birth, the child becomes a

15

citizen and a full person under the Constitution. The child

receives the full protection of the civil and criminal laws

of the states.

The child protected by the second physician requirement

possesses actual, not just potential human life. The rights

under the Constitution of infants who survive abortion

are equal to those of their mothers. Certainly, any ‘‘right

to abortion’’ in this context cannot be deemed superior to

the right of children to continued life. It is even more

certain that whatever indirect effect a state law to protect

the life of such infants might have on an abortion practice

is outweighed by the ultimate state interest in protecting

the lives of its citizens.

2. The Second Physician Requirement Is Narrowly

Drawn.

Even if this Court finds that the second physician

requirement substantially burdens the right to ab-

ortion, this regulation withstands strict serutiny. A

requirement that a second physician attend the ab-

ortion procedure is a far less significant burden on

the abortion right than the total prohibition of

post-viability abortions (except to preserve life or

health) permitted by this Court. Moreover, the health of

the women is not impaired in the slightest, and may even

be enhanced by the presence of a second doctor. If an

emergency situation should arise, this second physician

will be available to provide instant assistance in treating

the woman. The presence of the second physician also

frees the first physician to concentrate all his efforts on

the woman—efforts that might otherwise be divided were

a live birth to ensue. Finally, were the women to enter

a near-hopeless condition, the first doctor need not face

the agonizing dilemma of choosing between devoting his

16

energies to preserving the mother’s life, despite a poor

prognosis, and working to save the child so that at least

one of the two would survive.

The court of appeals held this provision to an unneces-

sarily high standard of precision by holding that it is over-

broad for failing to account for circumstances where it is

improbable that any child will survive an abortion. 655

F.2d at 865. Hoe clearly indicates that in the context

of post-viability abortions, the ‘‘narrowly drawn’’ re-

quirement is satisfied if a ‘‘life or health’’ exception to an

otherwise absolute prohibition is included. 410 U.S. at

163-164. Under the proper standard of review, which

respects the vital state interest in the actual life of infant

persons, the second doctor requirement is clearly con-

stitutional.

3. The Requirement of a Second Physician Is Not

Overbroad: An Abandoned D & E Procedure

Might Produce a Live Birth.

Even under a stricter version of the ‘‘narrowly drawn’

requirement, the second physician requirement is con-

stitutional. The Eighth Circuit held the second physician

provision to be impermissibly overbroad. 655 F.2d at

865. The court reasoned that since some doctors would

employ the dilatation and evacuation (D & E) technique

after the point of viability, and since a D & Eis always“

fatal to a viable unborn child, the state had ‘‘no possible

justification for a second physician during a D & E pro-

cedurc. Id. at 865.

This reasoning is faulty because it is based on the un-

articulated, false assumption that a D & E procedure, when

attempted, always continues at least te the point of fetal

destruction. Uncontradicted expert testimony indicated

that ‘‘when a D & E is performed on a viable fetus there is

17

no chance of survival.“ Id. at 865 (emphasis added).

Challengers of the statute did not assert, however, be-

cause they could not assert truthfully, that whenever a

D & E is attempted, it is completed without complications

that might require abandonment of the D & E procedure

before the death of the fetus. Such complications allow

for the possibility of infant survival and justify the at-

tendance of a second physician.

This situation would arise, for example, when cervical

dilatation (a procedure preliminary to extraction of the

child from the womb) results in laceration of the ascending

branch of either uterine artery. Lowensohn & Hibbard,

Lacerction of the ascending branch of the uterine artery:

A complication of therapeutic abortion, 118 Am. J. Obstet.

Gynecol. 36 (1974). This is a major complication often

necessitating hysterectomy (removal of the uterus). A

study of this complication noted that laceration and sub-

sequent bleeding can preclude the anticipated abortion

procedure and lead instead to a hysterectomy. Jd. at 37-38.

Were such a complication to arise in a post-viability D & E,

the result would be effectively a Caesarian section delivery

of a live child. The authors noted that such a catastrophie

injury is aiways possible, even in the hands of skilled and

experienced surgeons.’’ Jd. at 36. Another study, noting

the laceration complication, reported an incidence of

cervical injury ranging as high as 7.1/100 abortions.’’

Cates, Jr., Schulz, Gold & Tyler, Jr., Complications of

Surgical Evacuation Procedures for Abortions A;jter 12

Weeks’ Gestation, in Pregnancy Termination 206, 211

(1979). Thus, the possibility cf such a situation arising is

very real.

Other instances in which a D & E procedure might be

abandoned before destruction of the child include those

cases in which the mother dies or enters a life-threatening

18

condition subsequent to initiation of the procedure. Dis-

seminated intravascular coagulation (DIC) ‘‘is one of the

most serious of the acquired coagulation disorders,

Merck Manual 319 (13th ed. 1977), and is a rare, though

serious, complication associated with D & E.“ Cates, Jr.,

Schulz, Gold & Tyler, Jr., supra, at 211. Moreover, a

greater likelihood of DIC syndrome may be associated with

both increased gestational age and the particular abor-

tion method, such as D & E. Id. at 213. Hence, post-

viability D & E should have a significantly higher incidence

of this complication. Onset of DIC requires immediate

treatment of the mother and, hence, cessation of the D & E

procedure. Since the syndrome may result from the in-

troduction of amniotic fluid into the woman’s bloodstream

via a uterine perforation, hysterectomy (and live birth)

may follow. If the woman dies, an emergency Caesarian

section offers a chance for infant survival. Similarly, if

the woman dies from hypovolemic shock (severe loss 91

blood), toxic reaction to anesthesia, or other lethal com-

plication following initiation of the D & E procedure, the

D & E will be abandoned, again allowing the possibility

of infant survival. Since the ‘‘risk of death from D & LE

increases as the gestational age increases,’’ id. at 215,

these occurrences would be especially likely during a post-

viability D & E.

In light of these very real medical possibilities in which

an attempted D & I could lead to a live birth, it becomes

clear that the Missouri statute is not overbroad. The

possibility of an abandoned D & E procedure and conse-

quent live birth provides sufficient justification for the re-

quirement of a second doctor, just as the possibility of live

birth provides ample justification for the second physician

requirement for other post-viability abortions. Since the

state cannot know in advance which post-viability abor-

19

tions will produce a live birth, a requirement that a second

physician attend every such abortion is narrowly drawn

to suit the compelling state interest in the lives of infants

who survive abortion.

B. The State’s Compelling Interest in Maternal Health

Justifies the Pathology Report and Hospitalization

Requirements.

The state also has ‘‘an important and legitimate interest

in preserving and protecting the health of the pregnant

woman, Roe v. Wade, 410 U.S. at 162. This interest

arguably ‘‘lies at the core of the personal constitutional

freedom recognized in Wade.’’ Harris v. McRae, 448 U.S.

297, 315 (1980). See also Connecticut v. Menilio, 423 U.S.

9 (1975). The state’s interest in maternal health becomes

compelling at the end of the first trimester of pregnancy,

Roe v. Wade, 410 U.S. at 163, and even justifies health

regulations in the first trimester, Connecticut v. Menillo,

423 U.S. 9 (1975) (requirement of licensed physician) ;

Planned Parenthood of Central Missouri v. Danforth, 428

U.S. 52, 79-81 (1976) (recordkeeping requirements). Given

the centrality of the maternal health concern, it follows

that the state ‘‘may regulate the abortion procedure to

the extent that the regulation reasonably relates to the pres-

ervation and protection of maternal health. Roe v. Wade,

410 U.S. at 163 (emphasis added).

This principle, which the Court employed to justify post-

first trimester hospitalization requirements in Roe, applies

equally to the pathological reporting requirement at issue

here. That it applies in the first trimester of pregnancy

is irrelevant. The state ordinarily has a compelling in-

terest in maternal health after the first trimester. Roe v.

Wade, 410 U.S. at 163. This state interest becomes com-

pelling even during the first trimester if the regulation

helps to maximize maternal health:

20

Roe [v. Wade, 410 U.S. 113 (1973)] teaches that a

State cannot restrict a decision by a woman, with the

advice of her physician, to terminate her pregnancy

during the first trimester because neither its interest

in maternal health nor its interest in the potential life

of the fetus is sufficiently great at that stage. But the

insufficiency of the State’s interest in maternal health

is predicated upon the first trimester abortion being

as safe for the women as normal childbirth at term,

and that predicate holds true only if the abortion is

performed by medically competent personnel under

conditions insuring maximum safety for the woman.

See 410 U.S. at 149-150, 163.

Connecticut v. Menillo, 423 U.S. at 10-11.

Thus, any regulation which provides for basic ‘‘condi-

tions insuring maximum safety for the woman’’ finds sup-

port in a compelling state interest, and this analysis pro-

ceeds in identical fashion, whether the regulation applies

only after the first trimester or throughout pregnancy.“

In both instances, the regulation will be upheld if it con-

tributes to maternal safety and overturned if it comes

into focus, instead, as an unreasonable or arbitrary regu-

lation designed to inhibit, and having the effect of in-

hibiting’’ the abortion right—-i.e., if the legislation is not

‘‘narrowly drawn.“ Planned Parenthood v. Danforth, 428

U.S. at 79; see also Doe v. Bolton, 410 U.S. 179, 194 (1973).

1. Pathology Reports.

Were this Court to strictly scrutinize the pathology re-

port requirement, the statute would find sufficient justifica-

tion in the state’s interest in maternal health. Regular

pathology reports constitute ‘‘conditions insuring maxi-

* Of course, not every health regulation falls into this category.

Only those regulations that would provide for essential care which

serve to decrease the mortality rate of abortion procedures find jus-

tification in a compelling state interest in all three trimesters.

21

mum safety for the woman’’, as illustrated in the Appen-

dix. Pathology reports can identify, for example, such seri-

ous and possibly fatal complications as uterine perforation

(puncture of the womb), and can warn of otherwise un-

diagnosed and subsequently lethal conditions such as

ectopic (tubal) pregnancy. See Appendix. Thus, this

safety measure forms a part of the predicate without

which the state’s interest is no longer insufficient. Con-

necticut v. Menillo, 423 U.S. at 10-11.

In Roe v. Wade, this Court held that a woman might be

hospitalized after the first trimester of pregnancy because

of the excess maternal mortality arising from abortion

after that time. 410 U.S. at 163. Similarly, the state might

properly require pathology reporting because of the excess

maternal mortality that would occur absent such reports.

Moreover, a pathology reporting requirement is especial-

ly desirable for abortions, simply because of the special

problems that accompany this procedure. Abortion has been

a medical procedure associated with an unusually high in-

cidence of abusive practices. See, e.g., The Abortion

Profiteers, Chicago Sun-Times, 1978 (special reprint). The

Sun-Times series revealed widespread shoddy practices, in-

cluding failure to obtain proper pathology reports. One

clinic neglected to preserve tissue samples for analysis. Id.

at 25, col. 4. Other clinics sought pathology reports, but

handled the specimens ‘‘so carelesly that the reports it gets

back may be meaningless. Id. at 26, col. 2. In an article

exposing 12 maternal deaths following Chicago clinic abor-

tions between 1973 and 1978, the Sun-Times consulted

abortion experts:

& microscopic exam is essential, said Dr. Paul

Szanto, Chicago’s dean of pathology and director of

Cook County Hospital’s pathology division. Even

with a microscope, it happens over and over again that

we cannot see [the true signs of pregnancy}.’’

Dr. Willard Cates r., who oversees abortion surveil-

lance for the National Center for Disease Control in

Atlanta, believes pathological reports are so important

that no clinic should allow a patient to leave the prem-

ises without one.

Lou can’t let a woman walk out of an abortion

clinic without an immediate review of the specimen,

Cates said.

Without that lab analysis, he said, ‘‘You can’t be

certain that the woman was pregnant, or that you got

all the fetal remains, or whether she had an ectopic

pregnancy.

Id. at 26, col. 3.

This Court has referred to improper abortion practices

on several occasions. See, e.g., Planned Parenthood of

Central Missouri v. Danforth, 428 U.S. 52, 91 n.2 (1976)

(Stewart, J., concurring); Bellotti v. Baird, 443 U.S. 622,

641 n.21 (1979) (Bellotti 1/) (minors may resort to in-

competent or unethical’’ abortion clinies). These problems

reinforce the need for legislative control over elinie prac-

tices, and supplement the medical grounds for pathology

reports (see Appendix) already acknowledged by the

court of appeals. 655 F.2d at 670. Clearly, this health

measure directly furthers and is reasonably related to the

state’s compelling interest in the pregnant woman’s life

and health, and it thus survives strict scrutiny.

2. Hospitalization Requirement

Roe specified that a hospitalization requirement would

be a permissible state regulation of post-first trimester

abortions. 4: U.S. at 163. The court of appeals none-

theless overturned this requirement merely because one

of the several procedures used for second and third

23

trimester abortions, dilatation and evacuation (D &

E), was not found to be widely available within hospitals

and was not found to be ‘‘safer’’ when performed in a

hospital than when performed outside a hospital. 664 F. 2d

at 687, 689. But this holding is tantamount to requiring

that a statute must be ‘‘perfectly drawn“ in order to ‘‘rea-

sonably relate’’ to maternal health. Such a standard would

permit no regulation of abortions at all, except on a case-

by-case basis. Even a physician requirement would be

unreasonable, since, for example, fourth-year medical

students at a high caliber urban medical school might well

be more competent to perform abortions than rural podia-

trists would be.

Moreover, since the state cannot know in advance when

complications will arise which require a hospital environ-

ment, the state can only weigh the competing interests of

safety and convenience. If the resultant legislation so

balances these interests as to be reasonably related to

maternal health, then the legislation withstands strict

scrutiny.

The Constitution does not require that abortion health

regulations correspoud perfectly to state interests in every

instance. Rather, the legislative enactment must be evalu-

ated as a whole, to see if it will serve“ or ‘‘enhance’’ the

state interest offered as a justification. Planned Parent-

hood of Central Missouri v. Danforth, 428 U.S. 52, 75

(1976). Regulations that serve the state’s interest in

maternal health need only be ‘‘reasonably related to that

interest to survive constitutional attack. Roe v. Wade,

410 U.S. at 163. Hence, the lower court in this case should

have compared generally the safety of hospitalized abor-

tion after the first trimester with non-hospitalized second

and third trimester abortion, rather than singling out D &

E abortion for special treatment. Such a comparison, if

24

carefully conducted to control for biases,* would have pro-

vided a proper basis for determining whether the post-first

trimester hospitalization requirement is reasonably related

to maternal health.

The Court of Appeals for the Eighth Circuit also based

its holding that the post-first trimester hospitalization re-

quirement was unconstitutional on a finding by the district

court that ‘‘second trimester D & E procedures performed

at out-patient facilities are just as safe as those procedures

performed in hospitals.’’ No. 79-4142-CV-C-H, slip op.

at 14 (W.D. Mo. Oct. 2, 1981). From this factual deter-

mination the court of appeals concluded that ‘‘section

188.025 is not reasonably related to maternal health and,

therefore, . . is unconstitutional.’’ 664 F.2d at 690.

The court’s conclusion, however, rests upon an incom-

plete understanding of the hospitalization requirement.

This requirement seeks not only to reduce the risks of

second trimester abortions, but also to facilitate the treat-

ment of complications when they arise. Even if the risks

of complications occurring during a second trimester D & E

are identical for procedures performed within hospital or

non-hospital facilities, the statutory requirement is none-

theless reasonably related to maternal health because

hospitals possess superior facilities for treatment when

complications do arise.

According to the Centers for Disease Control, Annual

Summary 1978 (1980), roughly 50% of all abortions per-

* For example, if a woman has a late term abortion, and hence

one entailing higher risks, or if a woman has medical indications

for attendant complications, she will more likely have her abortion

in a hospital. Thus the unanalyzed data will tend to make hospi-

talized abortions appear to be more dangerous than non-hospitalized

abortions. In fact, it is because hospitals are safer that the woman

expecting difficulties will enter hospital facilities in the first place.

25

formed at 13 or more weeks of gestation employ methods

other than D & E. Id. at 43, Table 14. Of these, hysterotomy

and hysterectomy procedures, being major surgery, will

necessarily take place in hospitals. Intraamniotic abortifaci-

ent instillation procedures constitute the remainder of the

post-first trimester abortions. With regard to these one ex-

pert, Charles A. Ballard, M.D., commented as follows: I

feel it is necessary that all amnio-infusions be performed in

a hospital with a staff present at all times and with an

adequate laboratory facility available (e.g., a blood bank).’’

Second Trimester Abortion: A Symposium by Corres-

pondence, 16 J. Reprod. Med. 47, 55-56 (1976). Dr. Ballard

went so far as to urge that at least for saline abortion,

these procedures should be performed by competent

physicians, under a strict antiseptic regimen, only in cer-

tain designated hospitals with staff available 24 hours

and adequate laboratory facilities.“ Id. at 56 (emphasis

added).

Dr. Ballard based his opinion on the existence of ‘‘the

potential complications of infection, hemorrhage, consump-

tive coagulopathy, ete.“ Jd. at 56. His study did not

discuss the D & E procedure, but another report noted

that the ‘‘most common complications associated with

D & E are infection and hemorrhage,’’ Cates, Jr., Schulz,

Gold & Tyler, Jr., Complications of Surgical Evacuatio:

Procedures for Abortions After 12 Weeks’ Gestation, in

Pregnancy Termination 206, 210 (1979), and that consump-

tive coalgulopathy is ‘‘a rare, though serious, complication

associated with D & E.’’ Id. at 211. Since the same com-

plications which make hospitalization imperative for other

post- first trimester procedures occur with D & E pro-

cedures, it follows that hospitalization is appropriate for

D & E abortions as well.

26

Dr. Willard Cates reports that the misestimation of

gestational age contributes to the complication rate for

D & E, and that routine sonography might aid in redue-

ing complications and deaths from D & E.“ Id. at 215.

In another study Cates explains that if routine sono-

graphy is to be performed on every woman, an ultrasound

scanner“ is necessary; therefore, one should keep in mind

that ‘‘many hospitals already have this equipment avail-

able for managing other obstetric and nonobstretrie con-

ditions.’’ Cates, Jr., Schulz & Grimes, Dilatation and

Evacuation for Induced Abortion in Developing Coun-

tries: Advantages and Disadvantages, 11 Stud. Fam. Plan.

128, 130 (1980). Dr. Cates continues:

Because D & E is riskier than curettage at earlier

gestations, it should be performed in settings with

proper supervision and backup facilities. However,

the currently available alternatives—instillation pro-

cedures and abdominal hysterotomy—should also be

performed under similar circumstances.

Id. at 130.

Clearly a legislature might reasonably conclude that a

hospitalization requirement for all abortion after the first

trimester is a proper safety regulation. ‘‘Since all methods

of terminating pregnancies after 12 weeks should be per-

formed under equivalent circumstances,’’ as Dr. Cates

indicates, id. at 132, it is reasonable if not imperative

that the state impose a hospitalization requirement.

The hospitalization requirement is certainly a regula-

tion reasonably related to the state’s compelling interest

in maternal health. As such, it is narrowly drawn and

should be upheld.

27

III. CONCLUSION

The Missouri regulations at issue before this Court do

not substantially burden a woman’s right to decide to

terminate her pregnancy. Moreover, these provisions are

justified by compelling state interests in the heaith of the

mother and the actual life of infant citizens.

Wherefore, your amicus prays this Court to reverse the

Court of Appeals for the Eighth Circuit, and uphold these

provisions.

Respectfully submitted,

Dennis J. Horan

Victor G. RosensLumM

Patrick A. TrRvEMAN

Tomas J. Marzen

Maura K. Quintan

230 N. Michigan, Suite 915

Chicago, IL 60601

312/263-5029

Attorneys for

Americans United for Life

Law Students Who Assisted in the Preparation of this Brief:

Daniel Avila, Thomas J. Balch, Elizabeth Bower. Michael R. Carey,

Richard Cohen, Walter M. Weber.

Medical Consultant for this Brief: Steven R. Zielinski, M.D.