Amicus Curiae Brief — Thornburgh v. American College of Obstetricians and Gynecologists

——-— [ee con 0

FIL D

No. 84-495 ~ JUL 13 1985

ALEXANDER | STEVAG.

IN THE QUERK

ee

Supreme Court of the United States

OCTOBER TERM, 1984

RICHARD THORNBURGH, H. ARNOLD MULLER, HELLEN B.

O’BANNON, MICHAEL J. BROWNE, WILLIAM R. Davis, LeRoy S.

ZIMMERMAN, personally and in their official capacities, and

JOSEPH A. SMYTH, JR., personally and in his official capacity,

together with all others similarly situated,

Appellants

vs.

AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS,

PENNSYLVANIA SECTION; HENRY H. FETTERMAN, M.D.,

THOMAS ALLEN, M.D., and FRANCIS L. HUTCHINS, JR., M.D. on

behalf of themselves and all others similarly situated; ALLEN

J. KLINE, D.O., on behalf of himself and all others similarly

situated; BRooKS R. SUSMAN; PAUL WASHINGTON; MORGAN P.

PLANT, on behalf of herself and all others similarly situated;

ELIZABETH BLACKWELL HEALTH CENTER FOR WOMEN;

PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA:

REPRODUCTIVE HEALTH AND COUNSELING CENTER; and

WOMEN’S HEALTH SERVICES, INC.,

Appellees.

ON APPEAL FROM THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF AMICUS CURIAE OF THE

NATIONAL RIGHT TO LIFE COMMITTEE,

INC. FOR APPELLANTS RICHARD

THORNBURGH, ET AL.

Steven R. Valentine James Bopp, Jr.

of the Bar of the Brames, Bopp, Haynes & Abe!

Supreme Court of 191 Harding Avenue

Illinois P.O. Box 1583

8029 Edinburgh Drive Terre Haute, IN 47808-1583

Springfield, VA 22153 (812) 238-2421

(703) 455-6125 '

Attorneys for Amicus Curiae QALY

TABLE OF CONTENTS

BRIEF AMICUS CURIAE NOTE ................

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

ARGUMENT

I.

Il.

IN REGULATING THE ABORTION OF A

VIABLE FETUS, THE STATE MAY

REQUIRE THAT THE PHYSICIAN

EXCLUDE FROM CONSIDERATION

INSIGNIFICANT PHYSICAL HEALTH

RISKS TO THE WOMAN AND MATERNAL

FEAR OF A LIVE BIRTH IN SELECTING

THE METHOD OF ABORTION...........

A. The Woman's Right of Privacy Does Not

Include the Right to Ensure the Destruction

EE EE ee

B. The State’s Interest in Protecting the Life

of a Viable Fetus is Compelling.........

C. The State’s Compelling Interest in Pro-

tecting the Viable Fetus Supports the

Requirements of Section 3210(b) ........

ROE V. WADE DOES NOT REQUIRE THE

STATES TO ALLOW POST-VIABILITY

ABORTIONS UNDER THE BROAD

DEFINITION OF HEALTH FOUND IN

Se PNY bkccncecduscedectececsecs

A. The Doe vr. Bolton Definition of Health

Applies Only in Early Pregnancy .......

|

B. When Analyzed in Tandem with Roe +.

Wade, the Doe v. Bolton Definition of

Health Does Not Apply to Post-Viability

PER cvne vous cdvesadakeanunusetes 14

C. The Progeny of Roe v. Wade Also Demon-

strates That the Doe v. Bolton Definition of

Health Does Not Apply to Post-Viability

Pukcecuhéntsecddecidantaeesl 20

D. This Court Need Not Define the Post-

Viability Health Exception In Order to

Hold Section 3210(b) Constitutional ..... 21

oe | REITER Ra PEM ta BB Bert ee Regt 2 23

ie oii ie cee eee eee aaa eee A-l

PE Mins cncececesdknwedsnuswdlns eee A-3

)

ii

TABLE OF AUTHORITIES 3

Cases: Pages:

American College of Obstetricians and Gynecologists,

Pennsylvania Section v. Thornburgh, 737 F.2d 283

Gee Sit, SE ec ccddcevedcneesuesacauseen ed 4, 5, 12

Bellotti v. Baird I, 428 U.S. 182 (1976) ............. 6

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

PED étbédadcdnckca dnb ddbae bias naohenAs 6

Colautti v. Franklin, 439 U.S. 379 (1979) .......... 5, 20

Doe v. Bolton, 410 U.S. 179 (1973) ............06- passim

Maher v. Roe, 482 U.S. 464 (1977) ............... 6, 8, 11

McRae v. Califano, No. 76-C-1804 (E.D.N-Y.,

Transcript, August 3, 1977) ..................- 16

Planned Parenthood v. Ashcroft, 462 U.S. 476

Gs pakke vad ives easeeebed vencshentwens 20, 21

Planned Parenthood of Central Missouri v. Danforth,

BE eee See ree y ee 20

Roe v. Wade, 410 U.S. 113 (1978)...........0005- passim

United States v. Vuitch, 402 U.S. 62 (1971) ......... 13

Whalen v. Roe, 429 U.S. 589 (1977). ............265- 6

Wynn v. Scott, 449 F.Supp. 1302 (1978), aff'd sub nom.

Wynn v. Carey, 599 F.2d 193 (7th Cir. 1979) ... 7

Statute:

18 Pa. Cons. STAT. ANN. §3210(b)....... 3, 4, 8, 9, 11, 21

Other Authorities:

Binkin, et al., Urea-prostaglandin Versus Hypertonic

Saline for Instillation Abortion, 146 Am. J. OB.

Es ST suas Gak tkedinasndchdeccedesdes 10

1 Constitutional Amendments Relating to Abortion,

1981: Hearings on Bills Preposing a Constitutional

Amendment With Respect to Abortion Before the

Subcommittee on the Constitution of the Senate

Committee on the Judiciary, 97th Cong., Ist Sess.

158-59 (1981) (testimony of Irwin M. Cushner).. 16

Grimes, Second-f'rimester Abortions in the United

States, 16 FAM. PLAN. PERSPEC. 260 (1984)..... 9, 10

Grimes and Cates, The Comparative Efficacy and

Safety of Intraamniotic Prostaglandin F’2a and

Hypertonic Saline for Second-Trimester Abortion,

22 J. REPRO. MED. 248 (1979) .................. i)

Haning & Peckham, Evaluation of Intra-Amniotic

Administration of 120 gm of Urea with 5 mg o-

Prostaglandin F2a for Midtrimester Termination

of Pregnancy Between 20 and 24 Weeks Gestation,

151 Am. J. OB. GYN. 92 (1985) ........ 0c eeeees 10

Hausknecht, Free Standing Abortion Clinies: A New

Phenomenon, 49 BULL. N.J. ACADEMY MED. 985

DEES Abies penal el tee eee rok so 17

Henshaw, A Portrait of American Women Who Obtain

Abortions, 17 FAM. PLAN. PERSPECT. 90 (1985)... 10

Rhoden, The New Neonatal Dilemma: Live Births

From Late Abortions, 72 GEORGETOWN LAW J.

EE aie ok Nad ss 00 aa Gi dba aA Ks oheedins 6

Rosen, The Patient's View of the Roie of the Primary

Care Physician in Abortion, 67 Am. J. Pus.

PETER iinstwsisinGdeesseddnabanne ee 17

Tribe, Forward: Toward a Model of Roles in the Due

Process of Life and Law, 87 HARVARD L. REV. 1

SE 4b a cdbav deca cusvascnncucdbnencnnaneenées 7

WARDLE, L., THE ABORTION PRIVACY DocTRINE: A

COMPENDIUM AND CRITIQUE OF FEDERAL COURT

ABORTION CASES (1980) ................20000- i8, 19

iv

Zbaraz, Abortion and the Supreme Court: A Physician's

Fight for Medical Equalitu, 4 SEXUAL MED.

PT IE eden cb0ds be ska avosseesienssces

No. 84-495

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

RICHARD THORNBURGH, H. ARNOLD MULLER, HELLEN B.

O’BANNON, MICHAEL J. BF WNE, WILLIAM R. Davis, LERoy S.

ZIMMERMAN, personally and in their official capacities, and

JOSEPH A. SMYTH, JR., personally and in his official capacity,

together with all others similarly situated,

Appellants

vs.

AMERICAN COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS,

PENNSYLVANIA SECTION; HENRY H. FETTERMAN, M.D.,

THOMAS ALLEN, M.D., and FRANCIS L. HUTCHINS, JR., M.D. on

behalf of themselves and all others similarly situated; ALLEN

J. KLINE, D.O., on behalf of himself and all others similarly

situated; Brooks R. SUSMAN; PAUL WASHINGTON; MORGAN P.

PLANT, on behalf of herself and all others similarly situated;

ELIZABETH BLACKWELL HEALTH CENTER FOR WOMEN;

PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA;

REPRODUCTIVE HEALTH AND COUNSELING CENTER; and

WOMEN’S HEALTH SERVICES, INC.,

Appellees.

ON APPEAL FROM THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

NOTE

This Brief Amicus Curiae is filed with the consent of all

parties to this appeal. A letter from each attorney stating

this consent has been filed herewith with the Clerk of this

Court.

1

2

STATEMENT OF INTEREST OF AMICUS

CURIAE NATIONAL RIGHT TO LIFE

COMMITTEE, INC.

The National Right to Life Committee, Inc. is a non-

profit organization whose purpose is to promote respect for

the worth and dignity of all human life, including the life of

the unborn child from the moment of conception. The Na-

tional Right to Life Committee, Inc. is comprised of a Board

of Directors representing 51 state affiliate organizations

and more than 2,000 local chapters made up of individuals

. from every race, denomination, ethnic background and

political belief. It engages in various political, legislative,

legal and educational activities to protect and promote the

concept of the sanctity of human life.

The members of the National Right to Life Committee,

Inc. have been the prime supporters of laws restricting

abortion on demand to only those instances in which the

mother’s life is in danger. Since Roe r. Wade, 410 U.S. 118

(1973) and Doe +. Bolton, 410 U.S. 179 (1973), the members

of the National Right to Life Committee have supported

legislation to protect unborn human life within these guide-

lines. The Pennsylvania Abortion Control Act is the result

of lobbying, in great part, by the members of the National

Right to Life Committee, Inc. and its affiliate, the

Pennsylvania Pro-Life Federation. By means of this brief,

the National Right to Life Commitee, Inc. seeks to advance

these interests by supporting the Pennsylvania post-

viability abortion regulations herein.

BRIEF AMICUS CURIAE

NOTE

The Questions Presented and The Statement of the Case

are omitted from this Amicus Curiae Brief since they are

amply stated .n the Appellants’ Brief of Richard Thorn-

burgh, et al.

3

SUMMARY OF ARGUMENT

The right of a woman to choose to terminate her

pregnancy, while constitutionally guaranteed, is not

absolute, and does not include the right to ensure that an

abortion performed after the point of viability of the fetus

results in delivery of a dead fetus rather than a live child. In

the face of the compelling state interest in protecting

unborn viable human life recognized in Roe v. Wade, 410

U.S. 113 (1973), regulation of abortion practices such as

that enacted in 18 Pa. Cons. STAT. §3210(b) is justified.

Section 3210(b) mandates, in the post-viability abortion

context, that the attending physician use the abortion

procedure most likely to result in a live birth unless that

procedure entails a significantly greater risk to the life or

health of the pregnant woman. In assessing the medical

risk, the physician may not consider the psychological or

emotional effect on the woman if her child is delivered alive

rather than dead. It is a reasonable exercise of

Pennsylvania’s power, pursuant to its compelling interest

in viable unborn life, to require at least a significant

increase in the risk to maternal life or health before allow-

ing the life of the viable fetus to be terminated.

Pennsylvania’s exclusion from the physician’s

consideration of the psychological or emotional impact of

live birth in assessing medical risk is justified by principles

previously articulated by this Court concerning the defini-

tion of maternal “health” in the abortion decision context.

The broad definition of maternal health set forth in Doe v.

Bolton, 410 U.S. 179 (1973), has only been applied by this

Court to first-trimester abortion situations. This Court

made it clear in Roe v. Wade and its progeny that the

maternal! health considerations during the first trimester

of pregnancy, which justify abortions for a broad range of

reasons, are not the same as those at the point of viability.

To reason otherwise would negate the state’s compelling

interest in potential life recognized by this Court at

viability. The employment of the phrase “significantly

greater medical risk” in Section 3210(b) is an appropriate

4

way for Pennsylvania to differentiate between the broad

definition of maternal health in the first trimester and the

markedly different and more grave nature of the post-

viability health exception.

ARGUMENT

I

IN REGULATING THE ABORTION OF A

VIABLE FETUS, THE STATE MAY REQUIRE

THAT THE PHYSICIAN EXCLUDE FROM

CONSIDERATION INSIGNIFICANT PHYSICAL

HEALTH RISKS TO THE WOMAN AND

MATERNAL FEAR OF A LIVE BIRTH IN

SELECTING THE METHOD OF ABORTION.

This amicus curiae brief will address the sole issue of

whether the Court of Appeals for the Third Circuit erred in

its determination that 18 Pa. Cons. STAT. ANN. §3210(b)

(hereinafter “Section 3210(b)’) is unconstitutional under

the precedents of this Court. American College of

Obstetricians and Gynecologists, Pennsylvania Section vr.

Thornburgh, 737 F.2d 283, 300 (1984). In its entirety,

Section 3210(b) provides as follows:

Degree of care. — Every person who performs or

induces an abortion after an unborn child has been

determined to be viable shall exercise that degree of

professional skill, care and diligence which such per-

son would be required to exercise in order to preserve

the life and health of any unborn child intended to be

born and not abortea and the abortion technique

employed shall be that which would provide the best

opportunity for the unborn child to be aborted alive

unless, in the good faith judgment of the physician, that

method or technique would present a significantly

greater medical risk to the life or health of the pregnant

woman than would another available method or

technique and the physician reports the basis for this

5

judgment. The potential psychological or emotional

impact on the mother of the unborn child's survival shall

not be deemed a medical risk to the mother. Any person

who intentionally, knowingly or recklessly violates the

provisions of this subsection commits a felony of the

third degree (emphasis added).

Addressing itself to the constitutionality of Section

3210(b), the court below cited Colautti v. Franklin, 439

U.S. 379 (1979), and asserted that in it this “Court held that

the earlier Pennsylvania statute impermissibly required

the doctor to make a ‘trade-off’ between the woman's health

and ... fetal survival.” Thornburgh, 737 F.2d at 300, citing

Colautti, 439 U.S. at 400. Arguing that the “new

Pennsylvania statute, like the old, fails to require that

maternal health be the paramount consideration,” the

court below focused on the legislature’s use of the word

“significantly” and found that the challenged statute “is not

susceptible to a construction that does not require the

mother to bear an increased medical risk in order to save

her viable fetus, and therefore ... (is) unconstitutional.”

Thornburgh, 737 F.2d at 300.

A. The Woman's Right of Privacy Does Not Include

the Right to Ensure the Destruction of a Viable

Fetus

In Roe v. Wade, 410 U.S. 113 (1973), this Court held that

the right of personal privacy included the right of a

pregnant woman to decide whether or not to have an abor-

tion. Therefore, this Court invalidated a Texas statute

which prohibited all abortions except those procured for

the purpose of saving the life of a mother. 410 U.S. at 164. In

the companion case of Doe v. Bolton, 410 U.S. 179 (1973),

this Court, among other things, struck down Georgia's

abortion statute which required that the abortion must be

performed in a hospital accredited by the Joint Committee

on Accreditation of Hospitals. 410 U.S. at 194. After noting

that such a requirement is not imposed on the performance

6

of nonabortion surgery, id. at 193, the Court found that it

violated the equal protection of laws because it was not

“based on differences that are reasonably related to the

purposes of the act in which it is found.” /d. at 194.

However, in establishing that there are compelling state

interests in potential life and maternal health which allow

the state to regulate abortion, this Court has emphatically

declared that, while there is a constitutionally protected

interest in making certain kinds of important decisions

“free from governmental compulsion,” Whalen v. Roe, 429

U.S. 589 (1977), these protected rights are “not absolute.”

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

(1977). “As Whalen makes clear, the right in Roe v. Wade,

supra, can be understood only by considering both the

woman’s interest and the nature of the state’s interference

with it. Roe did not declare an unqualified ‘constitutional

right to an abortion....’ Rather, the right protects the

woman from unduly burdensome interferences with her

freedom to decide whether to terminate her pregnancy.”

Maher v. Roe, 432 U.S. 464, 473-74 (1977). In addition, “not

all distinction between abortion and other procedures is

forbidden.” Bellotti v. Baird 1,428 U.S. 132, 145(1976). The

constitutionality of such distinction will depend upon the

degree and the justification for it. /¢d. Abortion, unlike

other medical procedures, involves the termination of po-

tential human life. Maher v. Roe, 432 U.S. at 48u.

The woman’s right recognized in Roe was the right to an

abortion in the sense of a right toempty the womb of the un-

wanted fetus and not in the sense of a right to ensure that

the fetus will die in the process. Professor Rhoden has

recognized this vital distinction. She observes, “Writers on

abortion have generally assumed, reasonably enough, that

removing the fetus from the womb (‘womb-emptying’)

would necessarily result in its destruction (‘feticide’). In the

live birth situation, however, womb-emptying and feticide

have diverged; removing the fetus has unexpectedly failed

to destroy it.” Rhoden, The New Neonatal Dilemma: Live

7

Births From Late Abortions, 72 GEORGETOWN LAW J. 1451,

1453 (1984) (footnote omitted). The same point is made by

Laurence Tribe. “Once the fetus can be severed from the

womb by a process which enables it to survive,” wrote

Professor Tribe, “leaving the abortion decision to private

choice would confer not only a right to remove an unwanted

fetus from one’s body but also an entirely separate right to

ensure its death. Apart from the problematic nature of any

claim in behalf of the latter right, its recognition and

enforcement would be indistinguishable from recognizing

and enforcing a right to commit infanticide....” Tribe,

Forward: Toward a Model of Roles in the Due Process of Life

and Law, 87 HARVARD LAW REV. 1, 27 (1973) (footnote

omitted).

No court has held that the abortion privacy right is a

right to commit feticide. On the contrary, such a notion has

been specifically rejected. In Wynn +. Scott, a state statute

was under consideration which mandated, in the court’s

construction, that “[i}f...there are instances where a physi-

cian has a choice of procedures, both of equal risk to the

woman, the physician must choose the procedure that is

least likely to kill the fetus.” 449 F.Supp. 1302, 1321 (1978),

affd. sub nom. Wynn v. Carey, 599 F.2d 198 (7th Cir. 1979).

“This choice,” Prentice Marshal! wrote for a unanimous

court, “would not interfere with the woman's right to

terminate her pregnancy. /t never could be argued that she

has a constitutionally protected right to kill the fetus. She

does not.” Id. (emphasis added).

B. The State’s Interest in Protecting the Life of a

Viable Fetus is Compelling

This Court has found that the State has a legitimate

interest in potential life. This interest “grows in sub-

stantiality as the woman approaches term and, at a point

during pregnancy ... becomes compelling.” Roe ». Wade,

410 U.S. at 163. “At viability, usually in the third trimester,

the state’s interest in potential life of the fetus justifies

8

prohibition with criminal penalties, except where the life

or health of the mother is threatened.” Maher v. Roe, 432

U.S. at 472.

At viability, the unborn child can live independently out-

side the mother’s womb. Thus, this Court has recognized

that the state interest in protecting the unborn child, at

viability, becomes dominant and the state may go so far as

to proscribe the abortion procedure. Roe vr. Wade, 410 U.S.

at 155. As stated by this Court in Roe vr. Wade, “(tlhe

pregnant woman cannot be isolated in her privacy. She

carries an embryo, and later, a fetus, if one accepts the

medical definitions of the developing young in the human

uterus. The situation therefore is inherently different from

marital intimacy, or bedroom possession of obscene

material, or marriage, or procreation, or education, with

which Fisenstadt and Griswold, Stanley, Loving, Skinner,

and Pierce and Meyer were respectively concerned. As we

have intimated above, it is reasonable and appropriate for a

state to decide that at some point in time another interest,

that of health of the mother or that of potential human life,

becomes significantly involved. The woman’s privacy is no

longer sole and any right of privacy she possesses must be

measured accordingly.” Roe v. Wade, 410 U.S. at 159

(citation omitted).

C. The State’s Compelling Interest in Protecting the

Viable Fetus Supports the Requirements of Sec-

tion 3210(b)

Section 3210(b) mandates, in the post-viability abortion

context, that the attending physician use the abortion

procedure most likely to result in a live birth unless that

procedure entails a significantly greater medical risk to

the life or health of the pregnant woman. In assessing the

medical risk, the physician may not consider the

psychological or emotional effect on the woman if her child

9

is delivered alive rather than dead.'

Section 3210(b) is not unconstitutional in light of Roe v.

Wade. Pennsylvania's interest in protecting viable unborn

life is compelling. It is a reasonable exercise of the state’s

power pursuant to that interest to require at least a

significant increase in the risk to maternal life or health

before allowing the life of the viable fetus to be terminated.

Significant means “having meaning.” WEBSTER’s NEW

COLLEGIATE DICTIONARY 1071 (1981). Its antonym is

“unimportant.” ROGET’s COLLEGE THESAURUS 326 (1962).

Thus, the State of Pennsylvania rejects only an

“unin: portant” or meaningless increase in the health risk to

a woman as a basis for nullifying its compelling interest in

the life of a fetus with a reasonable likelihood of survival.

After viability, the unborn child could survive outside

the mother’s womb and the state has a compelling interest

in protecting that povential life. If the “compelling interest”

has any meaning, it must support a requirement increasing

the likelihood of fetal survival when there is only an

insignificant and unimportant increase in the health risk to

the mother. Some post-viability abortion methods virtually

always result in fetal death while the live birth rate for

other methods may vary by five to forty times. Grimes,

Second-Trimester Abortions in the United States, 16 FAM.

PLAN. PERSPECT. 260, 264 (1984); Grimes and Cates, The

Comparative Efficacy and Safety of Intraamniotic

Prostaglandin F2a and Hypertonic Saline for Second-

Trimester Abortion, 22 J. REPRO. MED. 248, 252 (1979). In

contrast, the risk of mortality to the woman varies from

' Section 3210(b) could reasonably be construed to mandate only that the

physician may not base his decision to use an abortion procedure other

than the procedure most likely to result in a live birth se/e/y on the

possibility of psychological or emotional harm to the woman if her child

is delivered alive rather than dead. Such a construction would avoid the

claim that the section imposes increased medical risks on the woman.

For the purpose of this brief, however, the construction adopted by the

Third Circuit is used.

10

12.0/100,000 to 14.2/ 100,000 for some of the most common

post-viability abortion methods. Second-Trimester

Abortions, supra, at 263. There is, therefore, a tremendous

increase in the likelihood of fetal survival by use of certain

abortion methods rather than others while the risks to the

mother vary only thousandths of a percent.

The state’s interest in post-viability unborn life is not

theoretical. In 1981, for instance, there were 13,790 abor-

tions after 21 weeks of pregnancy and 49,600 between 16

and 20 weeks. Henshaw, A Portrait of American Women

Who Obtain Abortions, 17 FAM. PLAN. PERSPECT. 90, 92

(1985). In addition, the neonatal survival! rates are steadily

pushing the age of viability well into the second trimester.

See Appendix A. Recently, a modification of a pre-existing

abortion method has been developed purposely to ensure

fetal death and is being used even though it increases the

risk to the health of the mother. See Haning & Peckham,

KRrolwation of lutva-Amniotic Administration of 120 qm of

Ured with 5 mag of Prostaglandin Fo. for Midtrimester

Termination ef Prequancy Between 20 and 24 Weeks

Gestation, 151 Am. J. On. GYN. 92 (1985): Binkin, et al..

U'rea-prostaglandin Versus Hypertonic Saline for

lustllation Abortion, 146 AM. J. OB. GYN, 947, 951 C1983).

There are, therefore, a substantial number of viable un-

born children whose lives are at stake and whom the state

has a compelling interest to protect.

If the state may not protect viable unborn life in the face

of an insignificant and unimportant increase in the health

risk to the woman, its so-called “compelling” interest in

post-viable fetal life is in practice devoid of force and mean-

ing. This view cannot be squared with this Court's careful

search for a compelling interest in Roe which would have

supported a severe criminal sanction for any abortion not

performed to protect the life of the pregnant woman. Roe r.

Weede, 410 U.S. at 156-164. If such a compelling interest

could have been found by this Court in the first trimester,

the Texas statute making abortion a criminal offense

1]

would have been upheld. Maher v. Roe, 432 U.S. at 472. The

existence of such a compelling interest after viability is

suff’ cient to protect the life of the fetus when there is only a

meaningless increase in risk to the woman’s health.

In addition, Section 3210(b) provides that, in assessing

the significance of the increase in the risk to the life or

health of the pregnant woman, the physician may not

consider any alleged psychological or emotional harm to

the woman if her child is delivered alive rather than dead.

As outlined above, Roe does not recognize a constitutional

privacy right to commit feticide. Rather, the pregnant

woman has a privacy right to terminate her pregnancy in

the post-viability period by emptying her womb. Fear of a

live birth, if considered sufficient to allow abortion

procedures which result only in fetal death, would have the

effect of radically altering the Roe right and thereby

vitiating the state’s compelling interest in unborn life.

Roe gave the woman the right to terminate her

pregnancy, not to kill her child. Indeed, Roe gave the states

the right to protect the lives of unborn children beginning

at the very time when live births are possible. It is thus

appropriate that the Commonwealth of Pennsylvania

exclude fear of live births as a factor in seeking to favor live

births.

II

ROE V. WADE DOES NOT REQUIRE THE

STATES TO ALLOW POST-VIABILITY

ABORTIONS UNDER THE BROAD DEFINITION

OF HEALTH FOUND IN DOE V. BOLTON.

In selecting the procedures most likely to result in the

live birth of a post-viable fetus, Section 3210(b) excludes

consideration of “the potential psychological or emotional

impact on the mother of the unborn child’s survival.” Thus,

in the exercise of its compelling interest in preserving

viable fetal life, Pennsylvania has excluded consideration

12

of the fear of a live birth in the assessment of the “medical

risk to the life or health of the pregnant woman.”

In recognizing a compelling interest in fetal life, this

Court provided that a state may prohibit abortion after

viability except when an abortion “is necessary to preserve

the life or health of the mother.” Roe v. Wade, 410 U.S. at

164. In Doe v. Bolton, this Court defined health to include

factors that are “physical, emotional, psychological,

familial, |as well as| the woman’s age.” 410 U.S. at 192. The

court below, however, in a fundamentally erroneous

manner, held that this broad definition of health applied

after viability and thus required the state to allow abortion

for any of these factors. Thornburgh, 737 F.2d at 299. The

court claimed that “the Pennsylvania legislature was hos-

tile to this definition” in its adoption of the limiting

definition in Section 3210(b). /d. The court below relied

“with confidence on the Supreme Court of Pennsylvania to

construe ‘health’ as does the Supreme Court of the United

States [in Doe v. Bolton |.” Id.

A. The Doe v. Bolton Definition of Health Applies

Only in Early Pregnancy

In Dov +. Bolton, appellants argued that the Georgia

statute, as it had been left in the wake of the District Court’s

decision in the case, was unconstitutionally vague. Their

argument was that, even though the specific legal justifica-

tions for abortion in the Georgia statute had been stricken

by the District Court, the state law stil! made it a crime for

a physician vw perform an abortion except when it was

“based upon his best clinical judgment that an abortion is

necessary.” 410 U.S. at 191. The appellants contended that

the word “necessary” did not warn the physician of the

conduct proscribed, that the statute lacked objective

standards and was susceptibie of several constructions, and

that the conduct of doctors would be arbitrary because they

would err on the side of caution. Jd.

This Court upheld the determination of the District

13

Court in Doe rv. Bolton in light of its precedent in United

States vo Vuitch, 402 U.S. 62 (1971). In Vuiteh, the

vagueness issue was raised in relation to a District of

Columbia statute that made abortions criminal unless they

“were done as necessary. for the preservation of the

mother’s life or health.” Since that statute had been

construed to bear upon psychological as well as physical

well-being, the Court concluded that the term “health”

presented no problem of vagueness. 402 U.S. at 72. This

conciusion from Vuitch, according to the Bolton court, was

equally applicable to the Georgia statute. 410 U.S. at 192.

Continued the Court:

We agree with the District Court that the medical

judgment may be exercised in the light of all factors —

physical, emotional, psychological, familial, 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. And it is room that

operates for the benefit, not the disadvantage, of the

pregnant woman.

Id.

The Bolton court did not address the issue of whether the

same liberal definition of health would apply in the context

of abortions done throughout pregnancy. Indeed it did not

need to do so, because plaintiff Mary Doe was denied abor-

tion under the Georgia law at issue when she was eight

weeks pregnant, or well within her first trimester of

pregnancy. /d., at 185-186. Thus, the Bolton definition of

health applied only to early or first trimester abortions and

it is far too expansive a reading of the definition to apply it

to post-viability abortions, when the state has a compelling

interest in the protection of fetal life.

14

B. When Analyzed in Tandem with Roe v. Wade, the

Doe v. Bolton Definition of Health Does Not Apply

to Post-Viability Abortion

Doe v. Bolton should not, indeed must not, be read in isola-

tion. As Justice Blackmun wrote for the Court in Roe +.

Wade, “[t]hat opinion and this one, of course, are to be read

together.” 410 U.S. at 165. When read in tandem with Roe v.

Wade, it is abundantly clear that the Bolton definition of

health does not apply in the context of post-viability abor-

tions.

The Court in Roe v. Wade explicitly rejectvd the notion

that the woman’s right to privacy with respect to her deci-

sion on whether to terminate her pregnancy is unlimited.

“(A ]ppellant and some amic/ argue that the woman’s right

is absolute and that she is entitled to terminate her

pregnancy at whatever time, in whatever way, and for

whatever reason she alone chooses. With this we do not

agree.” 410 U.S. at 153. Instead, the privacy right of the

woman “must be considered against important state

interests in regulation.” /d. at 154. Thus, “a State may

properly assert important interests. in safeguarding health,

in maintaining medical standards, and in protecting poten-

tial life.” Jd. “At some point in pregnancy,” continued the

Court, “these respective interests become sufficiently

compelling to sustain regulation of the factors that govern

the abortion decision.” Jd. “With respect to the State’s

important and legitimate interest in the health of the

mother,” noted the Court, “the compelling point, in light of

present medical knowledge, is at approximately the end of

the first trimester.” /d. at 163. And “with respect to the

State’s important and legitimate interest in potential life,

the ‘compelling’ point is viability.” Jd.

In a passage of Rov that emphasizes the point that at no

time in pregnancy is the woman’s abortion privacy right

absolute or completely personal in nature, the Court noted

that, during the first trimester of pregnancy, “the attending

15

physician, in cousultation with his patient, is free to

determine, without regulation by the state, that, in his

medical judgment, the patient’s pregnancy should be

terminated (emphasis added).” /d. at 163. Thus, it is clear

that in all three stages of the abortion regulatory frame-

work announced in Roc, health considerations, in some

fashion, <.e important.

Lut this emphatically is not to say that the health

considerations recognized by the Court in Roe +. Wade are

the same, or that they must be given equal constitutional

weight, throughout the full nine month term of pregnancy.

In the first trimester, the abortion decision “must be left to

the medical judgment of the pregnant woman’s attending

physician.” /d. at 164. Indeseribing the factors which could

be considered legitimately in exercising this “medical

judgment,” the Court noted:

Specific and direet harm medically diaquosable even

in early pregnancy may be involved. Maternity, or

additional offspring, may force upon the woman a

distressful life and future. Psychological harm may be

imminent. Mental and physical health may be taxed by

child care. There is also the distress, for all concerned,

associated with the unwanted child, and there is the

problem of bringing a child into a family already

nwnable, psychologically and otherwise, to care for it. In

other cases as in this one, the additional difficulties

and continuing stigma of unwed motherhood may be

involved. All these are factors the woman and her

responsible physician necessarily will consider in

consultation.

Id. at 153 (emphasis added).

Thus, under this broad definition of health, very few

abortions are performed for any medical reason. Of the

women seeking abortion, only 4.5% of those seeking second

trimester abortions and 10% of those seeking first trimester

abortions claimed any medical indications. Most seek abor-

tion for social and economic reasons. See Appendix B.

16

Despite the fact that few women have any clinical grounds

for abortion, those who perform abortions are willing to

find medical indications simply because the pregnancy is

early or the patient wants one.” Other physicians feel that

there is a medical indication to abortion in pregnancy if the

woman says, “I can’t cope with this pregnancy.” Zbaraz,

Abortion and the Supreme Court: A Physician's Fight for

Medical Equality, 4 SEXUAL MED. ToDay 43 (1980). In fact,

no more than 2 percent of induced abortions are performed

“for clinically identifiable reasons,” and no more than 1

percent are performed to save the life of the mother — or for

any other purpose related to physical heaith. /

Constitutional Amendments Relating to Abortion, 1981:

Hearings on Bills Proposing a Constitutional Amendment

With Respect to Abortion Before the Subcommittee on the

Constitution of the Senate Committee on the Judiciary, 97th

Cong., Ist Sess. 158-59 (1981) (testimony of Irwin M.

Cushner).

This situation is exacerbated by the fact that it is usually

not a physician who is sought out for advice when

pregnancy is suspected. Indeed, in one survey, less than

18% sought the advice of any physician when deciding

* See Testimony of Dr. Hodgson in MeRae rv. Califano, No. 76-C-1804

(E.D.N.Y.), Transcript, August 3, 1977, at pp. 99-101):

A. In my medical judgment every (pregnancy) that is not wanted

by the patient, | feel there is a medical indication to abort a pregnancy

where it is not wanted.

In good faith, I would recommend on a medical basis, you

understand, that, and it would be 100% ... 1 think they are all

medically necessary ...

Occasionally we will advise these women to carry their pregnancy to

term. But most of these are medically necessary because | am consider-

ing the women’s physical, mental, emotional and social and welfare and

family and environment and all that ... I am concerned with the

quality of life not physical existence ... If the words medically

necessary came in | think | could live with it. If | could interpret it in

my own way, however.

Q. It would be a good faith interpretation?

A. I could live with it.

17

whether or not to have an abortion and over 87% reported

that the physician had absolutely no influence on their

decision. Rosen, The Patient's View of the Role of the

Primary Care Physician in Abortion, 67 Am. J. Pus.

HEALTH 863 (1977). Part of the reason for the low influence

rate of physicians is the fact that in abortion clinics the

physician generally does not even see the patient until she is

on the operating table, prepared for the abortion.

Hausknecht, F ee Standing Abortion Clinies: A New

Phenomenon, 49 BULL. N.Y. ACADEMY OF MED. 985 (1973).

The physician does not even diagnose the woman’s condi-

tion before the procedure.

In the second trimester under the Roe v. Wade standard,

the State’s compelling interest in the health of the mother

justifies regulations that “are reasonably related to

maternal health.” 410 U.S. at 164. But the Court suggested

that such regulations must be narrowly confined to such

matters as qualifications and licensing of medical per-

sonnel and facilities involved in the performing of abor-

tions. /d. at 16° d, in the third (post-viability) stage, the

state’s compelliiy interest in protecting “the potentiality of

human life” constitutionally justifies the state in

prohibiting abortion “except where it is necessary, in

appropriate medical judgment, for the preservation of the

life or health of the mother.” /d. at 164, 165.

Thus, the Roe +. Wade model focuses on different “health”

considerations in each of its three stages. The distinctions

between these differing “health” concerns associated with

the three stages of the Roe +. Wade model must be accorded

special importance because they are of constitutional

significance. The mandatory “life or health” exception,

which must be applied by the states to allow legal abortions

even after the fetus has reached the time of viability and the

state has acquired a compelling reason to proscribe abor-

tions, must not be confused with the “health” condition

which may justify a “medical judgment” authorizing abor-

tion in the first trimester.

18

This proposition finds further support in the climactic

conclusion about the Texas abortion statute that this Court

drew in Roe v. Wade:

Measured against these standards, Article 1196 of the

Texas Penal Code, in restricting legal abortions to

those “procured or attempted by medical advice for

the purpose of saving the life or health of the mother,”

sweeps too broadly. The statute ~vwakes no distinction

between abortions performed early in pregnancy and

those performed later, and it limits to a single reasor.,

“saving” the mother’s life, the legai justification for the

procedure. The statute, therefore, cannot survive the

constitutional attack made upon it here.

Id. at 164 (emphasis added).

To apply the first trimester “health” definition to the

mandatory health exception in the post-viability context

also would “sweep too broadly” and would make “no distine-

tion between abortions performed early in pregnancy and

those performed later.” /d. Morever, as this Court noted in

Roe v. Wade, “[s}tate regulation protective of fetal life after

viability thus has both logical and biological justifications.

If the state is interested in protecting fetal life, (f may go so

fav as to proscribe abortion during that period, except when

it is necessary to preserve the life or health of the mother.”

Id. at 163-164 (emphasis added). Thus, it is not logical to

conclude, as the Third Circuit below did, that this Court

would have recognized a state's constitutional power to

prohibit post-viability abortions on the one hand only to

take it away by means of a broad, all-encompassing

“health” exception on the other. As a perceptive analysis of

this aspect of the Roe r. Wade decision by Professor Wardle

has suggested:

The analytical soundness of reading Roe and Doe as

requiring a post-viability “life or health” exception

with an expansive interpretation of “health” is highly

questionable. A broad interpretation of this exception

would be inconsistent with the deliberate balancing of

19

interests that is at the heart of the Roe analysis, and

would disregard the fundamental distinctions

between the “health” concepts associated with the

three stages of the Roe model. The “health” conditions

which constitutionally justify ... [broad, unregulated

access to] abortion during the first trimester are un-

questionably much broader than the “health”

conditions which constitute the mandatory post-

viability “life or health” exception. The fact that Roe

acknowledged that a “compelling” state interest is

thwarted when the post-viability exception is applied

mandates a conservative interpretation of this excep-

tion. Also, the reason for the imposition, as a constitu-

tional requirement, of the mandatory “life or health”

exception to post-viability abortion restrictions has

never been stated by the Court, and this, certainly,

suggests that it was not intended to be a major

exception.

Moreover, if the post-viability “life or health”

exception were read in terms of the Doe or Roe descrip-

tion of the first trimester “health” considerations .. . it

would create a classic “Catch-22” situation.... It

would mean that the Court in Roe laboriously created a

three-part framework for regulating abortion,

emphasized that a woman's right to an abortion is not

absolute, declared that after viability the state has a

“compelling interest” which generally could justify

the prohibition of abortion, and then, sub silentio,

negated it all with an innocuously-appended excep-

tion. In short, an expansive reading of the post-

viability “life or health” exception is logically

indefensible and is analytically inconsistent with the

Roe model of abortion regulation.

L. WARDLE, THE ABORTION Privacy DocTRINE: A

COMPENDIUM AND CRITIQUE OF FEDERAL COURT ABORTION

CASES 14-15 (1980).

20

C. The Progeny of Roe v. Wade also Demonstrate that

the Doe v. Bolton Definition of Health Does Not

Apply to Post-Viability Abortion

The majority opinion in Colautti demonstrates further

that the Doe v. Bolton health definition does not apply tothe

mandatory health exception for post-viability abortion

prohibitions by the states. “Roe stressed repeatedly the

central role of the physician, both in consulting with the

woman about whether or not to have an abortion, and in

determining how any abortion was to be carried out....

We indicated that up to the points where important state

interests provide compelling justifications for intervention,

‘the abortion decision in all its aspects is inherently, and

primarily, a medical decision.’ Roe v. Wade, 410 U.S. at

166.” Colautti v. Franklin, 439 U.S. at 387 (emphasis

added). Thus, this Court once again drew a clear line

between the first trimester regulation-free physician-

patient abortion privacy right and a drastically more

limited concept of serious physiological health endanger-

ment after the compelling state interest in the protection of

fetal life arises after viability.

The Court returns to this point slightly later in Co/autt:.

“In these three cases |Roe v. Wade, Doe v. Bolton, and

Planned Parenthood of Central Missouri v. Danforth), then,

this Court has stressed viability, has declared its

determination to be a matter for medical judgment, and

has recognized that differing legal consequences ensue upon

the near and far sides of that point in the human gestation

period.” Colautti v ‘ranklin, 439 U.S. at 388 (emphasis

added). “Viability i. ~° critical point.” Jd. at 389.

After Colautti v. + ‘Yin, this Court again made

implicit reference to ti that the Doe v. Bolton

definition of health does . yply to the post-viability

period of pregnancy as re ‘tnized in Roe v. Wade. In

Justice Powell's plurality opin. »n in Planned Parenthood v.

Ashcroft, 462 U.S. 476 (1983), the Court stated that “[m Jany

21

third-trimester abortions in Missouri will be emergency

operations, as the State permits these later abortions only

when they are necessary to preserve the life or health of the

woman.” /d. at 485 (emphasis added). The Court also noted

“those unusual circumstances,” id., and “rare situations

where there are compelling medical reasons for performing

abortions after viability.” /d. at 484 n. 7. Obviously, if this

Court in Planned Parenthood v. Ashcroft understood the

very broad, nearly unlimited first trimester health

standard enunciated in Doe v. Bolton to define the

mandatory post-viability health exception as well, the

Court would not have used the emphasized phrases.

D. This Court Need Not Define the Post-Viability

Health Exception In Order to Hold Section

3210(b) Constitutional

If the court below were correct in applying the Doe +.

Bolton definition of health to the mandatory health excep-

tion for post-viability abortions, then that health exception

would consume, or negate, Pennsylvania’s general rule

against post-viability abortions, as justified by its

compelling interest in the protection of fetal life. What the

court below gives with one hand by upholding

Pennsylvania’s proscription of post-viability abortions, it

takes away with the other hand by misapplying Doe +.

Bolton so as to rob that prohibition of any force or effect.

In order to reverse the erroneous holding of the court

below that Section 3210(b) is unconstitutional, it is not

necessary for this Court to define the precise limited

parameters of the post-viability health exception. Rather it

only is necessary for this Court to determine that the

employment of the phrase “significantly greater medical

risk” in Section 3210(b) is an appropriate way for

Pennsylvania to differentiate between the Doe v. Bolton

definition of maternal health in the first trimester and the

markedly different and more grave nature of the post-

viability health exception. That determination will ensure

that the post-viability health exception does not operate to

deprive Pennsylvania of the power, pursuant to its

compelling interest in the protection of fetal life, to

mandate that the physician use an abortion procedure that

is most likely to produce a live birth, absent a significantly

greater medical risk to the pregnant woman.

23

CONCLUSION

The Pennsylvania statute requiring a physician to

employ a post-viability abortion technique most likely to

result in a live birth, uniess it also entails a significantly

greater medical risk to the pregnant woman, is justified as

a reasonable exercise of state power pursuant to the

compelling interest in viable unborn life. The exclusion

from consideration of the psychological or emotional effect

of a live birth in assessing medical risk appropriately limits

the definition of post-viability maternal health in accord

with this Court's previous decisions. Thus, the Amicus

Curiae respectfully urges this Honorable Court to reverse

the decision below and declare section 3210(b)

constitutional.

Respectfully submitted,

Steven R. Valentine James Bopp, Jr.

of the Bar of the BramMes, Bopp, HAYNES &

Supreme Court of ABEL

Illinois 191 Harding Avenue

8029 Edinburgh Drive P.O. Box 1583

Springfield, VA 22153 Terre Haute, IN 47808-1583

(703) 455-6125 (812) 238-2421

Attorneys for Amicus Curiae,

National Right to Life Committee, Inc.

Appendices

APPENDIX A

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A-2

APPENDIX A

1. Philip etal, Neonatal Mortality Risk for the Bighties:

The Importance of Birth Weight/Gestational Age Grou ps, 68

PEDIATRICS 122 (1981).

2. Dillon et al., Aggressive Obstetric Management in

Late Second Trimester Deliveries, 58 OBST. GYN. 685 (1981).

3. Herschel et al., Survival of Infants Born at 24 to 28

Weeks’ Gestation, 60 OBST. GYN. 154 (1982).

4. Koops etal., Neonatal Mortality Risk in Relation to

Birth Weight and Gestational Age: Update, 101 J. PEDIAT.

969 (1982).

5. Worthington et al., Factors Influencing Survival and

Morbidity with Very Low Birth Weight Delivery, 62 OBST.

GYN. 550 (1983).

6. Milner et al., Limit of Fetal Viability, [Letter] 1

(8385) LANCET 1079 (May 1984).

7. Goldenberg et al., Survival of Infants with Low Birth

Weight and Early Gestational Age, 1979 to 1981, 149 AM. J.

OpsT. GYN. 508 (1984).

8. Gilstrap et al., Survival and Short-Term Morbidity of

the Premature Neonate, 65 OBST. GYN. 37 (1985).

A-3

APPENDIX B

MAJOR REASON FOR SEEKING ABORTION

GIVEN BY 400 PATIENTS

Saline Curretage

(%) (%)

School 17.5 7.0

Career, personal freedom 11.5 7.5

Medical complications 4.5 10.0

Financial strain 19.5 15.0

Unmarried 9.0 8.5

Too young 6.0 11.0

Fear of social disgrace 5.0 1.5

Family already completed 3.5 13.5

Shakey relationship with man involved — 8.0 9.0

Children too close in age 2.0 4.0

Possession of own children jeopardized 1.0 1.0

Parental advice 2.0 0.5

Never wants children 0.5 1.0

Not fit to be a mother 1.5 3.0

Unwilling intercourse — 0.5

Plans to marry abandoned 0.5 —

Too early in marriage _ 2.0

Too old _ 1.5

Didn't want to hurt family 4.5 0.5

Other 3.5 3.0

Source: Kerenyi, et al., Reason for Delayed Abortion:

Results of 400 Interviews, 117 AM. J. OBST. GYN. 299, 307

(1973).