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

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{ | Supreme Court, U.S.

FILED

No. 84-495 AUC 80 i985

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

—————_<j>—____

RICHARD THORNBURGH, ef a/.,

Appellants,

—Vvs.—

AMERICAN COLLEGE OF OBSTETRICIANS

AND GYNECOLUWGISTS, ef ai.,

Appellees.

ON APPEAL FROM THE UNITED STATES COURT

OF APPEALS FOR THE THIRD CIRCUIT

BRIEF AMICI CURIAE OF THE

AMERICAN CIVIL LIBERTIES UNION,

THE PENNSYLVANIA CIVIL LIBERTIES UNION

AND THE ANTI-DEFAMATION LEAGUE

NAN D. HUNTER

JANET BENSHOO!

SUZANNE M. LYNN

VERNA C. SANCHEZ

American Civil Liberties

Union Foundatior

132 West 43rd Street

New York, New York 10036

(212) 944-9800

Attorneys for Amici Curiae

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TABLE OF CONTENTS

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1 THE REQUIREMENTS IMPOSED BY SEC-

TION 3210(B) PERTAINING TO CHOICE OF

METHOD AND STANDARD OF CARE FOR

THE FETUS WILL JEOPARDIZE THE LIFE

AND HEALTH OF WOMEN WHOSE NEED

FOR POST-VIABILITY ABORTIONS IS UN-

PRR eCatecdecnduesisescdccceceess

Post-Viability Abortions Occur In Highly In-

dividualized Situations Involving Serious

ts ks eben ee ees

Preferring Fetal Life To The Life And Health

Of The Woman Violates The Core Principles

Of The Privacy Right Recognized In Roe vy.

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. Section 3210(b) Creates Unconstitutionally

Vague Standards For Measurement Of Risk

And Fetal Care Which Will Chill Doctors

Section 3210(b) Will Deprive Women Needing

Abortions Of The Medical Advice And Care

On Which They Can Rely To Protect Their

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PAGE

E. A Woman’s Right To Obtain An Abortion

Needed For Her Life Or Health Includes A

Right To Decide Which Risks She Is Prepared

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Il THE REQUIREMENTS OF SECTIONS 3205

AND 3208 ARE DESIGNED TO CONVINCE

WOMEN NOT TO HAVE ABORTIONS, TO IN-

TERFERE WITH THE INFORMED CONSENT

PROCESS, AND TO FORCE DOCTORS TO

PRESENT INFORMATION THAT MAY BE IN-

APPROPRIATE, HARMFUL OR BIASED.....

A. Section 3205(a)(1)(iii) Encourages Doctors To

Ignore The Informed Consent Process For

Women Needing Post-Viability Abortions. . . .

B. The Informed Consent Requirements Of The

Statute Depend Upon The Interplay Of Sec-

RS Fee Ge Sk 66 e danesccenseeaees

C. The Statute’s Rote Recitation Requirements

Undermine True Informed Consent For Many

D. The Prepared Speech Requirements Of Sec-

tions 3205 And 3208 Are Unconstitutional

Under The Standard Set Forth In Akron.....

E. The Statute Requires The Physician To Be The

Agent For The State’s Campaign To Influence

A Woman Against Abortion In Violation Of

The First Amendment. ....................

THE REPORTING REQUIREMENTS OF SEC-

TION 3214 HAVE A SIGNIFICANT IMPACT

ON A WOMAN’S ABORTION DECISION

WITHOUT FURTHERING ANY HEALTH IN-

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PAGE

A. The New Reporting Requirements Do Not

Further Any Maternal Health interests. .....

B. The Reporting Requirements Of Sectior 3214

Expose Women Receiving Abortions To

Harassment Because They Permit Disclosure

Ol Bendividdeeel Bemtties. . ccc cccccess

C. The Reporting Requirements Of Section 3214

Permit Identification Of Doctors Which Will

Result in Harassment And Chill Doctors.....

D. The Reporting Requirements Of Section 3214

Be TES 4.6 orc c a ckcecseccicces

THE SUPREME COURT’S DECISION IN

AKRON SETTLED THE LAW AS TO THE

CONSTITUTIONAL STANDARD GOVERN-

ING STATE STATUTES REGULATING ABOR-

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Letter from Dr. Warren Hern to

Janet Benshoof (June 28, 1985)

APPENDIX B_ Quarterly Report of Abortions

Performed (Commonwealth of

Penn., Dept. of Health).......

APPENDIX C_ State Statutes Which Have Re-

porting Requirements .........

APPENDIX D State Statutes Which Require

Confidentiality of Reports.....

APPENDIX E Letter from Katherine R. Welsh

to Janet Benshoof (August 2,

at aS RE

APPENDIX A

PAGE

TABLE OF AUTHORITIES

Cases: PAGE

American College of Obstetricians v. Thornburgh, 737

io fF F Le Bo rrr eee euwen ee id

American College of Obstetricians v. Thor.:burghi, No.

82-4336 (E.D. Pa. June 17, 1985) (Findings of Fact,

Discussion, Conclusion of Law, and Order)..... Sis Ge Oe

24, 25, 26

Bagley v. Wilkinson, No. C-81-603W (D. Utah, Dec. 2,

DL daa Ted Ch eehee ses ieee ben es oie ees cuhaeu 28

ee es Studs Ge CUT PBs cc ceccnecoeavesss 27

Bigelow v. Virginia, 421 U.S. 809 (1975) ............. 20

Brown v. Socialist Workers ’74 Camp. Comm., 459 U.S.

Sn ih iad eden newen be kbe wee kd<kdeeee earn 27

Carey v. Brown, 447 U.S. 455 (1980) ................ 20

Charles v. Carey, 579 F. Supp. 377; 579 F. Supp. 464

i Ci Meh 6s bie chen e cit wtnestbewabuet eke 28

Christensen v. Wisconsin Medical Examining Board, 551

F. Supp. 565 (W.D. Wisc. 1982) (August 1983, joint

a nb os ode ees cess cdeeriees chase encnn is 28

City of Akron v. Akron Center for Reproductive

Health, 462 U.S. 416 (1983).............. 5, 9, 11, 12, 14,

19, 20, 28, 29

Cobbs v. Grant, 502 P.2d 1 (Cal. 1972) .............. 12

Colautti v. Franklin, 439 U.S. 379 (1979) ........... 4, 6, 10

Curlender v. Bio-Science Laboratories, 106 Cal. App. 3d

ie fe & Fook) ee ee 13

Doe v. Bolton, 410 U.S. 179 (1973) ............... 5, 11, 27

PAGE

Dunham v. Wright, 423 F.2d 940 (3d Cir. 1970) ....... 12

Eubanks v. Collins, C-82-0360-L (A) (W.D. Ky. Sept. 11,

Disks cue eu easneneeeuadanseudaseaneiasnekeen 28

Glick v. Bryan, CY-R-81-150 (BRT) (D. Nev. 1981).... = 28

H.L. v. Matheson, 450 U.S. 398 (1981) .............. 27

Kovacs v. Cooper, 336 U.S. 77 (1949). ..........000 6) 21

McRae v. Caiifano, 419 F. Supp. 630 (E.D.N.Y.) rev'd

sub nom. on other grounds Harris v. McRae, 448 U.S.

Se As 6 abe Rahs Wee bebe dees bees eocnseueeses 3

Maher v. Roe, 432 U.L. 464 (1977) ......... 0. ce ee eee 27

Margaret S. v. Treen, 579 F. Supp. 636 (E.D. La. 1984) 28

Miks v. Olson, Civ. No. A3-82-78 (D.N.D. 1983)...... 28

Munson vy. Meiserhenry, No. 80-3043 (C.D.S.D. 1983) . 28

Planned Parenthood Association v. Fitzpatrick, 401 F.

Supp. 554 (E.D. Pa. i975) aff'd mem. sub nom.

Franklin v. Fitzpatrick, 428 U.S. 901 (1976) ........ 18

Planned Parenthood Ass’n of Kansas City v. Ashcroft,

Se Sk SE ob 06 66404-04064 4N os aR eeEEOO 5, 11, 28

Planned Parenthc 9d of Missouri v. Danforth, 428 U.S.

SP dccbsanseceeense deere ub ekeen ees oeeeees 19, 27

Poe v. Dep’t of Public Health, C.A. 78-C-4126 (N.D.

ER rer ry CP rryrTeTy TT Orr rrr rr 28

Poelker v. Doe, 432 U.S. 519 (1977). ..........00005- 27

Public Utilities Commission v. Pollak, 343 U.S. 451

Si vidsccesuc wdwk soakhen senensecewaiedeee nae 21

Roe v. Wade, 410 U.S. 113 (1973).............. 4, 5, i2, 20,

27, 28, 29

Virginia State Board of Pharmacy vy. Virginia Citizens

Consumer Council, Inc., 425 U.S. 748 (1976) ....... 20

West Virginia Board of Education v. Barnette, 319 U.S.

PAGE

ere Sc eedetenteees 20

Whalen v. Roe, 429 U.S. 589 (1977)... 0.00.0... cc eee 27

Women’s Community Health Center, Inc. v. «Tierney,

Nos. 79-162 P, 79-165 P (D. Me. Sept. 9, 1983) ..... 28

Wooley v. Maynard, 430 U.S. 705 (1977). ............ 20

Statutes:

Abortion Control Act, 18 Pa. Cons. Stat. Ann. §§ 3201-

3220 (Purdon 1982)

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EY 6x60 665 004000.6066406004 0 0caubuner 21, 26

PES SbNOLedR deen deedseceedeceneunebes 21, 24

Health Care Services Malpractice Act, 40 Pa. Stat. Ann.

§ 1301.101 ef seq. (Purdon 1982-83 Supp.).......... 15, 16

Idaho code 39-261(b) (Supp. 1984) .................. 22

Mo. Rev. Stat. 188.055(2) (Supp. 1982) .............. 22

Vii

Medical Authorities:

Alan Guttmacher Institute, 3 Public Policy Issue in Brief

5 BE er Te TTT LIT tT TE

Barber, Fetal and Neonatal Effects of Cytotoxic Agents,

58 Obstet. & Gynecol. 415 (1981). ......... 2.00086.

Binkin, Schulz, Grimes & Cates, Urea-Prostaglandin

Versus Hypertonic Saline For Instillation Abortion,

146 Am. J. Obstet. Gynecol. 947 (1983)............

Cates, Legal Abortions and Women’s Health Gains and

Losses in the 1970’s reprinted as Legal Abortion: The

Public Health Record, 215 Science 1586 (1982)......

Cates & Grimes, Morbidity and Mortality of Abortions

in the United States in Abortion and Sterilization:

Medical and Social Aspects (J. Hodgson, ed. 1981)..

Centers for Disease Control, U.S. Department of Health

and Human Services, Abortion Surveillance 1979-1980

PPPPPOPTTTTTITTT TTT TTI Tie

Chervenak, Farley, Walters, Hobbins & Mahoney, When

is Termination of Pregnancy During the Third Trimes-

ter Morally Justifiable? 310 New England J. Med. 501

PPT pidandédeadisesevenedtesen

Diggory, Hysterotomy and Hysterectomy in Abortion

and Sterilization: Medical and Social Aspects (J.

SE, Gs FEED oc ccwcccdcsccccacvccccvcsvess

Grimes, Second Trimester Abortions in the United

States, 16 Fam. Plan. Persp. 260 (1984)............

Grimes, Hulka & McCutchen, Midtrimester Abortion by

Dilatation and Evacuation Versus Intra-Amniotic In-

stillation of Prostaglandin F2a: A Randomized Ciini-

cal Trial, 137 Am. J. Obstet. Gynecol. 785 (1980) ...

PAGE

9, 19

2,4

Vill

Henshaw, Binkin, Blaine & Smith, A Portrait of Ameri-

can Women Who Obtain Abortions, 17 Fam. Plan.

Un et a

Henshaw, Forrest & Blaine, Abortion Services in the

United States 1981 and 1982, 16 Fam. Plan. Persp.

TS el OL eee ee

Hern, W., Abortion Practice (1984)..................

Hern, Serial Multiple Laminaria and Adjunctive Urea in

Late Outpatient Dilatation and Evacuation Abortion,

63 Obstet. & Gynecol. 543 (1984)..................

Kerenyi, Hypertoxia Saline Instillation in G.S. Berger, et

al., Second Trimester Abortions: Perspectives After a

Decade’s Experience (1981).................00005.

Kerenyi, /ntraaminiotic Techniques in Abortion and

Sterilization: Medical and Social Asnects (J.

I a i i

Lee, Neglia & Park, Cervical Carcinoma in Pregnancy,

58 Obstet. & Gynecol. 584 (1981).........0........

National Office of Vital Statistics DHEW, /nternational

Recommendations in Definitions of Live Birth and

Fetal Death, Washington, D.C. (1950) .............

Niswander, K.R., Manual of Obstetrics (1980) seaueeus

Peterson, Berry, Grace & Gulbranson, Second Trimester

Abortion by Dilatation and Evacuation: An Analysis

of 11,747 Cases, 62 Obstet. & Gynecol. 185 (1983)...

29 Physicians’ Desk Reference (1984) ...............

Pritchard, J.A.; MacDonald, PC. & Gant, N.F.. Wil-

liams Obstetrics (17th ed. 1985).................. 3,

Robins & Surrago, Alternatives in Midtrimester A bor-

tion Induction, 56 Obstet. & Gynecol. 716 (1980)... .

PAGE

7, 10

Romney, S.L.; Hay, N.J.; Little, A.B.; Merrill, J.A.;

Quillgan, E.J.; Standler, R.W., Gynecology & Obste-

SG, Sn ohéneshoncecéernneecngeeencens

Rooks & Cates, Emotional Impact of D&E Versus Instil-

lation, 9 Fam. Plan. Persp. 276 (1977).............

Schmidt, Sims, Strassner, Paul, Mueller & MeCart,

Effect of Aniepartum Glucocorticoid Administration

Upon Neonatal Respiratory Distress Syndrome and

Prenatal Infection, 148 Am. J. Obstet. & Gynecol.

Tt co. nce been pebaeens SeeRsneteue stants

Spitz, Lee, Grimes, Schoenbucker & Lavoie, Third-Tri-

mester Induced Abortion in Georgia, 1979 and 1980,

73 Am. J. Pub. Health 594 (1983).................

Stubblefield, “Some Medical Considerations,” in Rho-

den, Stubblefield, Benshoof & Callahan, Late Abor-

tion and Technological Advances in Fetal Viability, 17

. 8, 4 Pr eee

Tietze, The Public Health Effects of Legal Abortion in

the United States, 16 Fam. Plan. Persp. 26 (1984)...

Miscellaneous:

Alan Guttmacher Institute, Legislative Record, State

Legislatures—1984 Bills Enacted (1984) ............

Bush, Fertility-Related State Laws Enacted in 1982, 15

, SS, S, B..f.. BRAT eee

1980 Census of Population In Housing Users Guide,

PUI, TUR. on coc ccc cc cecibesescvens

DiGiorlamo, Second Hospital to Limit Abortions,

Philadelphia Inquirer, July 4, 1985 at BY...........

Donovan, Fertilitv-Related State Laws Enacted in 1981,

OS Fe, Fe. A, GP GD os weccccccccasscass

PAGE

Donovan, The Holy War, 17 Fam. Plan. Persp. 5 (1985)

General Population Characteristics, 1980 Bureau of

I re ia I es

Japanga, Abortion Suit Brought on by Privacy Issue,

The Los Angeles Times, April 10, 1984 at2 ........

Legislative Record, 8 Family Planning/Population Re-

A SN rae ee el ie. ee

Letter from Dr. Warren Hern to Janet Benshoof (June

ns ed kd ade daddeeas

Pennsylvania Department of Health News Release, Har-

risburgh, Pennsylvania (June 10, 1985).............

66 Pennsylvania Legislative J. House 2318 (July 21,

Dh Abidksddndeshanatekecutibsetisnbadédwei<

Solovitch, Hospital’s Abortion Ban Gratifies Protestors,

Philadelphia Inquirer, May 26, 1985 at IB..........

Summary of Clinic Violence as Reported to the National

Abortion Federation (1985)............00ccccceees

Scheidler, J.M., Closed: 99 Ways to Stop Abortion,

(Ignatius Press, San Francisco, Cal. 1985)..........

U.S. Department of Commerce, Bureau of the Census,

Current Population Reports, Special Studies, Series

Pay Ses GPS nob nedeceedsicasconeesceeude

PAGE

INTEREST OF AMICI

The American Civil Liberties Union (ACLU) is a nation-

wide, non-partisan organization with more than 200,000 mem-

bers dedicated to defending the Bill of Rights. The ACLU

established the Reproductive Freedom Project in 1974 to pro-

tect a woman’s fundamental right to privacy and reproductive

freedom. The ACLU believes that each woman has a funda-

mentai right to choose to terminate her pregnancy by abortion,

guaranteed by her constitutional rights of privacy, equal pro-

tection, and religious freedom, and has participated either as

amicus or party’s counsel in every abortion case before this

Court.

The Pennsylvania affiliate of the American Civil Liberties

Union has throughout the last decade worked to protect the

right of women to privacy and reproductive freedom. This

affiliate is presently challenging Pennsylvania’s Medicaid fund-

ing cut-off for abortions and has succeeded in securing a

governor’s veto of a bill which would have closed the courts to

any suit against a doctor for failing to inform the patient of the

likely consequence of carrying a pregnancy to term.

The Anti-Defamation League of B’nai B’rith was organized

as a section of B’nai B’rith, the oldest civic service organiza-

tion of American Jews, to advance good will and mutual

understanding among Americans of all creeds and races and to

secure justice and fair treatment for all. The Anti-Defamation

League is vitally interested in protecting the freedom of con-

science of all persons and all other freedoms consistent with an

open, democratic society. In this spirit, the Anti-Defamation

League has previously filed amicus briefs in such landmark

civil liberties cases as Brown v. Board of Education, 347 U.S.

483 (1953), Sherbert v. Verner, 374 U.S. 398 (1963), and Lemon

v. Kurtzman, 403 U.S. 602 (1971).

Ali parties have given their consent for the filing of this brief

in letters filed with the Clerk of this Court.

ARGUMENT

l. THE REQUIREMENTS IMPOSED BY SECTION

3210B) PERTAINING TO CHOICE OF METHOD

AND STANDARD OF CARE FOR THE FETUS WILL

JEOPARDIZE THE LIFE AND HEALTH OF WOMEN

WHOSE NEED FOR POST-VIABILITY ABORTIONS

IS UNQUESTIONED.

A. Post-Viability Abortions Occur In Highly Individualized

Situations Involving Serious Health Problems.

The statutory requirements of § 3210(b) of the Pennsylvania

Abortion Control Act, 18 Pa. Const. Stat. Ann. §§ 3201-3220

(Purdon 1983) apply only to post-viability abortions which a

physician has certified to be necessary for the preservation of

the pregnant woman’s life or health. As such, their impact is

limited in number but enormous in consequence.

Since abortion became legal nationwide in 1973, most

women have been able to make their abortion decisions earlier

and earlier in pregnancy.' Today, 99 percent of all abortions are

performed in the first 20 weeks of pregnancy; after 24 weeks,

in the realm in which viability becomes possible, only 0.01

percent are performed.’ There are no data which classify

abortions on the basis of viability.’

l Grimes, Second Trimester Abortions in the United States, 16 Fam.

Plan. Persp. 260, 261 (1°%4).

2 Henshaw, Binkin, Blaine, & Smith, A Portrait of American Women

Who Obtain Abortions, 17 Fam. Plan. Persp., 90, 91 (1985). Similar

Statistics are true in Pennsylvania: of $9,258 abortions reported in 1984, only

5 (less than 0.01 per cent) were performed at 27 or more weeks. Pennsylvania

Department of Health News Release (June 10, 1985).

3 The data cited, although the most reliable available, do not specify

the number of abortions covered by § 3210(b) and similar statutes for two

reasons. First, statistics on third-trimester aborti 1s may include fetuses

which are not yet viable, no longer viable (as wh the fetus has died in

utero) or which never were viable (as with anencepha.. fetuses). Spitz, Lee,

Grimes, Schoenbucher & Lavoie, Third-Trimester Induced Abortion in

Although few in number, post-viability abortions required

for life or health typically occur in situations of acute. particu-

larized need. The onset or worsening of such diseases as

pre-eclampsia, diabetes, cardiovascular disease, cervical can-

cer, ovarian cancer, breast cancer, high blood pressure, kidney

disease and certain respiratory, urinary and neuromuscular

disorders late in pregnancy may present a health risk sufficient

to require termination.’ Conditions of fetal abnormality also

account for some late abortions, in part because it is not

usually possible to obtain results from amniocentesis tests until

after the 20th week of pregnancy.” sychological distress may

also reach a level where treatment, which may include abor-

tion, is indicated."

Georgia, 1979 and 1980, 73 Am. J. of Pub. Health $94 (1983). Second, the

data may fail to include some terminations of wanted pregnancies, done past

the point of viability, which are necessitated by a threat to the woman's

health. Although § 3203 of the Pennsylvania statute defines abortion as any

termination performed when there is “a reasonable likelihood” (a phrase

which is undefined) that the procedure will cause fetal death, this definition

conflicts with standard medical definitions of the term abortion. If a fetus ts

in distress, there may be a reasonable likelihood of fetal death resulting from

a cesarean at thirty weeks. But because most physicians would not consider

this procedure to be an abortion unless there was also the intent to cause fetal

death, it probably would not be included in abortion statistics. See J.A.

Pritchard, PC. MacDonald, & N.F. Gant, Williams Obstetrics 467 (17th ed.

1985).

4 See generally, S.L. Romney, N.J. Hay, A.B. Little, J.A. Merill, E.J.

Quilligan, & R.W. Standler, Gynecology & Obstetrics, (2nd ed.1981) at 703,

705-708, 710, 712-714, 718, 722, 724, 726, 729, 732, 739, 756, 762, 764, 776,

778, 783-4, 793, 795. See also Williams Obstetrics at 477. One of the leading

causes of maternal mortality nationwide, hypertensive states of pregnancy

(toxemia) does not appea: “'ntil the late second trimester. Termination of the

pregnancy is recommended for severe cases and these are usually post-viabil-

ity. Id. at $28, $43.

5 Alan Guttmacher Institute, 3 Public Policy Issue In Brief 1, 4

(1983), Tietze, The Pubiw Health Effects of Legal Abortion in the United

States, 16 Fam. Plan. Persp. 26, 27 (1984).

6 See, e.g., McRae v. Califeno, 491 F. Supp. 630, 675-6 (E.D.N.Y.

1980) rev'd on other grounds sub nom. Harris v. McRue, 448 U.S. 297

(1980).

Such conditions as these were precisely the considerations on

which this Court based its decision articulating the centrality of

the abortion choice to a woman’s overall life and health. Roe

v. Wade, 410 U.S. 113, 153 (1973).

B. Preferring Fetal Life To The Life And Health Of The

Woman Violates The Core Principles Of The Privacy

Right Recognized In Roe v. Wade.

The primary issue before this Court with regard to § 3210(b)

centers on interpretation of the phrase “significantly greater.”

Appellants contend that the word “significantly” is essentially

meaningless, that it designates no measure of risk beyond what

is conveyed by the word “greater.” That argument, however,

fails to satisfy the elementary canon of construction that each

word in a statute is presumed to have a core of meaning.

Colautti v. Franklin, 439 U.S. 379, 392 (1979). In this context,

“significantly” must be construed to have its plain meaning,

which is fatal to the statute’s constitutionality.

Section 3210(b) impermissibly subordinates the woman’s life

or health to the attempt, however futile, to deliver a fetus

which will manifest signs of life, however briefly.’ No limit

germane to the woman’s well-being exists on this obligation

unless the physician can certify that a given method “would

present a significantly greater medical risk to the life or health

of the pregnant woman.”

The Court of Appeals correctly invalidated § 3210(b) on the

ground that state actions creating any greater risk to the

woman's life or health violate her right of privacy. Roe v.

Wade, 410 U.S. at 152-153. In the post-viability phase of

7 Live births do not mean that viable infants are being born. A live

birth is defined for official statistical purposes in 45 states as a “product of

conception, irrespective of the duration of the pregnancy which . . .

breathes or shows any other evidence of life such as beating of the heart. . .

or definite movement of voluntary muscle.” National Office of Vital Statis-

ins DHEW. International Recommendations in Definitions of Live Birth and

Fetal Death, Washington, D.C. (1950), cited in Grimes at 263. Most live

births are of fetuses which do not have the capacity for more t+ in momen-

tary survival. /d. at 263, 264.

pregnancy, when the state has a compelling interest in both the

woman’s health and the potential life of the fetus, this Court

repeatedly has made clear that any conflict between those two

interests must be resolved in favor of the woman’s health. In

Planned Parenthood Assn. of Kansas City v. Ashcroft, 462

U.S. 476 (1983), four Justices so stated explicitly. /d. at

501-502. Two additional Justices relied on an exemption for

any situation posing as much as “an increased risk” to the

woman’s life or health in order to uphold a second physician

requirement for post-viability abortions. 462 U.S. at 485 1.8.

No theme has been more central to this Court’s elucidation of

the abortion right than the primacy accorded the maintenance

of the woman’s life and health. Roe, 410 U.S. at 163-4.

The scope of what constitutes health is broadly defined to

include “all factors—physical, emotional, psychological, fami-

lial, and the woman’s age—relevant to the well-being of the

patient.” Doe v. Bolton, 410 U.S. 179, 192 (1973). This

principle, too, commands wide support Roe v. Wade, 410

U.S. at 207-8 (Burger, C.J., concurring City of Akron vy.

Akron Center for Reproductive Health, ‘62 U.S. 416, 467

(1983) (O'Connor, White and Rehnquist, J.J., dissenting).

Health considerations are particularly critical in the third

trimester, “when [many] abortions will be emergency opera-

tions,” Planned Parenthood Assn. of Kansas City v. Ashcroft,

462 U.S. at 485, and virtually all are done in circumstances of

extreme distress. The exclusion in § 3210(b) of adverse psycho-

logical sequelae of live birth from the physician’s evaluation of

the woman’s health needs illustrates the impermissible intent to

subvert the woman’s life or health which informs the phrase

“significatiiy greater.”

The principles of Roe v. Wade instruct that every woman

needing an abortion has a right to have it performed under

“circumstances that insure [her] maximum safety.” 410 U.S. at

150. Section 3210(b) deprives women of the maximum safety

to which they are entitled by reversing the order of priorities to

require use of the method least disadvantageous to the fetus

instead of the method least dangerous to the woman. It will

force women to incur risk of harms which they otherwise

would not incur because their health is at the bottom of a

statutorily-mandated list of priorities. In practice, § 3210(b)

will engage the state in turther endangering women who

already are in lite- or health-threatening situations.

Because only abortions which are needed for life or health

reasons are at issue in § 3210(b), affirmance of the Court of

Appeals’ invalidation of that section requires only that this

Court reaft'rm the principle that preservation of the woman's

life or heath outweighs any other interest related to abortion.

C. Section 3210(b) Creates Laconstitutionally Vague Stan-

dards For Measurement Of Risk And Fetal Care Which

Will Chill Doctors From t ~viding Safe Abortions.

In addition to undercutting woman's health, § 3210(b) also

tails to give physicians adequate notice of when selection of a

certain abortion method will be ~eemed criminal.

The term “significantly greater” gives no guidance to the

physician as to how much riskier a given abortion technique

must be for the woman before he or she can reject that

technique in tavor of one safer for her but which lessens the

chances of fetal viability. The physician must discount a certain

amount of risk to the woman if it falls below the level of

“significant,” but exactly what quantum of risk that is cannot

be discerned. The provision is thus unconstitutionally vague.

Colautti, 439 U.S. at 400.

Appellants defend § 3210(b) by arguing, with no support,

that the physician performing a post-viability abortion invari-

ably will be able to quantify the risks associated with the

possible methods as either obviously significant in their dif-

ferences or obviously marginal. Def. B. at 87-88. This argu-

ment is premised on an assumed ability to quantify increments

of risk which amounts te science fiction.

In fact, there is no way to measure on any objective scale the

degree of risk posed by various post-viability techniques

needed by women with different serious health problems. Not

only is the data concerning relative risks scarce, but each

determination is sui generis, depending upon a multiplicity of

individualized factors. No doctor performing these kinds of

post-viability abortions could be secure in the knowledge that

his or her measurement of risk would satisfy the statute.

Section 3210(b) forces the attending physician to consider

every method of abortion in order of its likelihood to produce

a live birth. The techniques that can be used for abortions after

24 weeks are the intra-amniotic instillation of solutions con-

taining saline, prostaglandin, urea, or some combination of

those substances, prostaglandin E, suppository, oxytocin or

dilatation and evacuation (D&E).* There are no data com-

paring the live birth rates from use of these techniques after 24

weeks.’ D&E allows no possibility of a living fetus.

Each woman receiving an abortion covered by § 3210(b)

presents at the outset some kind of health problem, for which

she already may be receiving treatment or medication. This

condition or its treatment may create a unique configuration of

risks and it may also already have adversely affected the fetus.

To the considerations resulting from her particular diagnosis

must be added the risks known to be associated with each

method. For prostaglandin instillations, for example, contrain-

dications include hypertension, asthma, glaucoma and epi-

& Chervenak, Farley, Walters, Hobbins & Mahoney, When is Termina-

tion of Pregnancy During the Third Trimester Morally Justifiable? 310 N.

Eng. J. Med. 501 (1984); Hern, Serial Multiple Laminaria and Adjunctive

Urea in Late Outpatient Dilatation and Evacuation Abortion, 63 Obstet. &

Gynecol. 543 (1984) (“Hern, Serial Multiple Laminaria”); Wi/liams Obste-

trics at $43. Because of the mag..ijied danger they pose of death and major

complication, hysterotomy and hysterectomy are no longer considered ac-

ceptable methods for abortion in the absence of additional health reasons for

their use, such as cervical cancer. Diggory, Hysterotomy and Hysterectomy in

Abortion and Sterilization: Medical and Social Aspects (J. Hodgson, ed.

1981) at 331; Gynecology & Obstetrics at 1222-3. One complicating factor in

assessing the risks of various techniques is that some doctors are beginning to

blend the possible techniques. For example, one physician uses laminaria for

dilation, injects urea and then removes the fetal material by surgical evacua-

tion. W. Hern, Abortion Practice 122-3 (1984).

9 See Robins & Surrago, Alternatives in Midtrimester Abortion Induc-

tion, 56 Obstet. & Gynecol. 716, 720 (1980) for a comparison of “live births”

(but not viable births) subsequent to saline and prostaglandin abortions at 24

weeks or less. During the late second trimester, only prostaglandin is reported

to result in live birth rates greater than a fraction of a percent.

lepsy.'° Gastro-intestinal side effects, sometimes severe and

prolonged, are common for prostaglandin abortions; almost 50

percent of the patients experience nausea, vomiting, and/or

diarrhea.'' Hypertension is also a contraindication for saline

injections, as is sickle cell disease, anemia, heart disease,

kidney disease, and blood coagulopathy.'* The most frequent

complications are hemorrage and infection. A disadvantage of

both prostaglandin and saline procedures is the length of time

patients are incapacitated.'* Actual labor, which carries its own

set of risks, may last four to 12 hours."

The literature contains no contraindications based on the

patient’s health condition for the use of D&E." In assessing

the advisability of using D&E, the primary factor is the

10 Hern, Abortion Praciice at 125.

11 Kerenyi, /ntraamniotic Techniques in Abortion and Sterilization at

368. Additionally, chills, fever, coughing, and shortness of breath, as well as

more severe respiratory and cardiovascular complications, have been ob-

served in patients receiving prostaglandins. /d. After a prostaglandin proce-

dure is completed, a dilatation and curettage may be “routinely” required

“since emptying of the uterus is so frequently incomplete.” K.R. Niswander,

Manual of Obstetrics (1980) at 22.

12 Kerenyi, Hypertoxic Saline Instillation in G.S. Berger, et al., Second

Trimester Abortions: Perspectives After a Decade’s Experience 179 (1981);

Niswander, at 22. Hypernatremia (excessive increase in serum/sodium levels)

occurs less often, but with results ranging from headaches and dizziness to

seizures and coma. Kerenyi, /ntraamniotic Techniques at 363.

13 The overall injection to abortion interval is approximately 24 hours

for saline (somewhat shorter if combined with oxytocin), and 16 hours for

prostaglandin. Binkin, Schulz, Grimes & Cates, Urea-Prostaglandin Versu.

Hypertonic Saline For Instillation Abortion, 146 Am. J. Obstet. Gynecol.

947, 949 (1983).

14 Rooks & Cates, Emotional Impact of D&E vs. Instillation, 9 Fam.

Plan. Persp. 276 (1977).

15 As a surgical procedure, however, it always carries the risk of

cervical laceration and even perforation. Other complications include exces-

sive blood loss. hemorrhage and pelvic infection. Peterson, et al., Second

Trimester Abortion by Dilatation and Evacuation: An Analysis of 11,747

Cases, 62 Obset. & Gynecol. 185 (1983).

individual physician’s level of skill and training.'° During the

second trimester of pregnancy, D&E is now recognized as the

safest method of abortion. City of Akron, 462 U.S. at 436.

Although it was once thought to be safe only early in the

second trimester, now physicians skilled in the technique can

successfully use it as the method of choice for both late

second-trimester and third-trimester abortions."

Conscientious physicians who must comply with § 3210(b)

will face impossible questions in trying to select a method

which will both insulate them from prosecution and protect the

health of their patients. For a physician who is skilled in D&E,

for example, that procedure might very well be considered the

safest, most comfortable, and least traumatic one for the

patient. But any such doctor would be in a quandary as to how

much less the risk to the woman must be before the D&E

would not be criminal. What if a hypertensive patient has

contraindications for both kinds of instillation? Are recognized

contraindications enough, or must the risk of mortality reach a

certain threshold? If so, what is that threshold? How severe

must the hypertension or asthma or epilepsy be before the

physician rules out the use of prostaglandin? What level of

anemia or kidney disease constitutes a “significantly greater”

risk for saline? Does the statute intend to compel the forcing of

human beings to spend up to 12 hours in labor and more hours

vomiting and with diarrhea? To these questions must be added

the considerations unique to each patient’s case.

The physician’s dilemma is compounded by the fact that,

because so few abortions after 24 weeks are performed, com-

parative morbidity data which segregate that time period are

virtually non-existent. So he or she is left with no reference

point to assist in the assessment of risk and no defense if a

16 Cates & Grimes, Morbidity and Mortality of Abortion in the United

States in Abortion and Sterilization at 156-58.

17 Hern, Serial Multiple Laminaria. Letter from Dr. Warren Hern to

Janet Benshoof (June 28, 1985) (see Appendix A to this brief at la-4a),

provides examples of three safe late D&E procedures, combined with

laminaria. One was performed at 30 weeks, the other two at 27 weeks.

local prosecutor !ater wants to second-quess whether a given

risk was “significantly greater.”

In addition to the method choice provision, Section 3210(b)

also requires the physician performing a post-viability abortion

to use the same overall standard of care toward the fetus that

would be used if the fetus were intended to be born rather than

aborted. This clause contains no exception for the woman’s

life or health, and thus is even more clouded in its ramifica-

tions for when treatment choices to insure the woman’s well-

being might result in criminal prosecution.'* Furthermore, the

standard of care provision is ambiguous on whether it imposes

a subjective or objective standard for determining liability.

As Third Circuit realized, these problems become all the

more serious in the intrusions they generate on the exercise of a

fundamental right because they often will occur at the bor-

derline of viability. American College of Obstetricians and

Gynecologists v. Thornburgh, 737 F.2d 283, 299-300 (3rd Cir.

1984). The uncertainty of determining viability, coupled with a

margin of error of about 11 days,’ will force physicians to

hedge their bets in ways detrimental to women’s health even

for abortions before viability.”

18 For example, any fetus manifesting signs of life or movement after a

post-viability procedure will be extremely premature. Premature infants

often suffer from Repiratory Distress Syndrome (RDS). See Williams Obste-

trics at 769; Schmidt, Sims, Strassner, Paul, Mueller, McCart, Effect of

Antepartum Glucocorticoid Administration Upon Neonatal Respiratory Dis-

tress Syndrome and Prenatal Infection, 148 Am. J. Obstet. & Gynecol. 178

(1984). Steroids are administered to the pregnant woman who threatens to

deliver prematurely because steriods enhance feta! lung capacity and increase

the chances of viability. See Williams Obstetrics at 755; Schmidt et al., at

178. Steroids, however, are contraindicated for pregnant women with hyper-

tension or diabetes. 29 Physician’s Desk Reference, 1764 (1984). Because the

degree of care provision requires the doctor to do whatever is necessary to

ensure fetal viability, he or she would be unsure under this section whether it

was required to administer the steroids, a treatment for the fetus that could

endanger the woman.

19 See Colautti, 439 U.S. at 395 and Grimes at 264.

20 __—‘ The reach of this health-subverting provision does not end there. As

Pennsylvania defines abortions, its scope will include any premature preg-

D. Section 3210(b) Will Deprive Women Needing Abortions

of The Medical Advice and Care On Which They Can

Rely Te Protect Their Health.

In making the decision whether to have an abortion, a

woman is ent’tled to receive the best medical advice which her

physician can provide. For that reascu, the physician must be

accorded “‘the room he needs to make his best medical

judgment.’ ” City of Akron, 416 U.S. at 427 quoting Doe y.

Bolton, 410 U.S. 179, 192 (1973). “The physician’s exercise of

this medical judgment encompasses both assisting the woman

in the decisionmaking process and implementing her decision

should she choose abortion.” City of Akron, 416 U.S. at 427

(citations omitted).

In no situation is the woman’s need for medical advice based

solely on her own health interests more compelling than prior

to an abortion necessary to preserve her life or health. The

later the pregnancy and the more dangerous the abortion, the

stronger her privacy-grounded right to the protection of her

own life and health.

Section 3210(b) violates the abortion right tor these women

by forcing the woman’s doctor to render medical care and

advice which weighs her health against the fetus’ in the shadow

of a threatened criminal prosecution. In many situations, it

will preclude consideration of methods which are safest for the

woman, and it inescapably skews the medical judgment upon

which women are entitled to rely.*' Furthermore, women may

nancy termination which carries “a reasonable likelihood” of causing fetal

death. See supra, n. 3. This will include any premature delivery procedure

when the fetus is seriously at risk. The impact of § 3210(b) in these situations

will be to distort appropriate medical judgments to compel use of the “best”

method for the fetus (even if a// the methods under consideration provide a

chance of fetal survival) by forcing the woman to assume some greater degree

of health or life endangerment.

21 Indeed, the rationale for allowing the state to require a second

physician to attend a post-viability abortion is that the woman's doctor will

be acting to carry out her best interests, which might be contrary to those of

the fetus. Ashcroft, 462 U.S. at 476. Section 3210(b) turns this principle on

its head, by depriving women of access to a physician upon whom they can

rely for advice and care solely in their interests.

not even be aware that the medical advice they receive is based

on any consideration other than the protection of their life and

health.

E. A Woman's Right To Obtain An Abortion Needed For

Her Life Or Health Includes A Right To Decide Which

Risks She Is Prepared To Accept.

The right to choose an abortion includes the right to effec-

tuate that decision. Akron, 462 U.S. at 430. Although the state

may entirely prohibit purely elective abortions after viability,

those women who need abortions for life or health reasons at

that stage of pregnancy retain the right to terminate their

pregnancies. Roe, 410 U.S. at 163-4. The State’s attempt,

through § 3210(b), to deprive women of the choice of the

method to be used, would eviscerate the decisional right itself.

A woman affected by § 3210(b) is one whose life or health

necessitates an abortion performed late in the pregnancy when

it is most dangerous. For her, more than for most abortion

patients,

“[t}he decision to have an abortion has ‘implications far

broader than those associated with most other kinds of

medical treatment’ and thus . . . it [should be] made ‘in

light of all attendant circumstances—psychological and

emotional as well as physical—that might be relevant to

the well-being of the patient.’ ” City of Akron, 462 U.S.

at 443 (citation omitted).”

22 This Court has also ruled that abortion must be treated by the states

in a manner consistent with the regulation of other medical procedures.

States may net-adopt “abortion regulations that depart from accepted

medical practice.” Akron, 462 U.S. at 431. As with other surgical proce-

dures, the final weighing and assuming of risks of an abortion necessary for

life or health must be left to the patient. After she has been fully advised of

the range and nature of the possible complications associated with the

various methods, the patient “is the one to decide which of the possible

consequences [s]he wants to risk.” Dunham v. Wright, 423 F. 2d 940, 945 (3d

Cir. 1970) (applying Pennsylvania law). “The weighing of these risks against

the individual subjective fears and hopes of the patient is not an expert skill.

Such evaluation and decision is a nonmedical judgment reserved to the

patient alone.” Cobbs v. Grant, 502 P.2d 1, 10 (Cal. 1972).

She, especially, is entitled to weigh and resolve the ramitica-

tions of selec ing one method rather than another—the likeli-

hood one might entail of undergoing prolonged labor versus

the possibility inherent in another of serious perforation, or

the risk of bringing to birth and short, painful life a seriously

impaired ‘nfant.*’

The possibility that the fetus will emerge manifesting signs

of life for moments before its death creates a serious, not

trivial, threat to the emotional well-being of a woman whose

own life or health requires the abortion.** A woman carrying a

fetus which has an abnormality prohibitive of normal life

expectancy could nonetheless be forced under § 3210(b) to

undergo labe ad delivery in order to maximize the chances

for the fetu e aborted alive. A woman who lawfully has

decided, perhaps with great anguish, not to bring into being a

fatally impaired child cannot be compelled to witness the death

of that child by any principle of law consistent with due

process.

Considerations of this magnitude will determine not just the

preference for a particular method but the underlying decision

itself. Section 3210(b) would prohibit the woman from exercis-

ing her own best judgment, in the context of a medical

procedure needed for her life or health, about which conse-

23 A child born with Tay-Sachs disease, for example, with a life

expectancy of four years, was found to suffer from

mental retardation, susceptibility to other diseases, convulsions, slugg-

ishness, apathy, failure to fix objects with her eyes, inability to take an

interest in her surroundings, loss of motor reactions, inability to sit up

or hold her head up, loss of weight, muscle atrophy, blindness,

pseudobulper palsy, inability to feed orally, deccrebrate rigidity and

gross physical deformity. Curlender v. Bio-Science Laboratories, 106

Cal. App. 3d 811, 816, 165 Cal. Rptr. 477, 480-481 (1980).

24 ~—s In. a clinical study to compare D&E with prostaglandin instillation

for second trimester abortions, three of the women who had been randomly

assigned to the prostaglandin group dropped out of the study because of

their fear of a long, painful labor culminated by abortion in bed. Grimes,

Hulka, & McCutchen, Midtrimester Abortion by Dilatation and Evacuation

Versus Intra-Amniotic Instillation of Prostaglandin F.: A Randomized

Clinical Trial, 137 Am. J. Obstet. Gynecol. 785, 789 (1980).

quences she could best endure. Such a barrier is forbidden by

the principles reaffirmed in City of Akron, which held that

even the state’s compelling interest in the woman’s health “will

not justify abortion regulations designed to influence the

woman’s informed choice between abortion or childbirth.” 462

U.S. at 444,

Hl. THE REQUIREMENTS OF SECTIONS 3205 AND 3208

ARE DESIGNED TO CONVINCE WOMEN NOT TO

HAVE ABOPTIONS, TO INTERFERE WITH THE IN-

FORMED CONSENT PROCESS, AND TO FORCE

DOCTORS TO PRESENT INFORMATION THAT MAY

BE INAPPROPRIATE, HARMFUL OR BIASED.

Sections 3205 and 3208 purport to ensure an “informed

consent” for the abortion decision. In reality, this section

subverts he general purposes of informed consent and serves

to conceal choices which have been taken out of the woman’s

hands by other sections of the statute.

A. Section 3205(a)(1)(iii) Encourages Doctors To Ignore The

Informed Consent Process For Women Needing Post-

Viability Abortions.

Section 3210(b) requires that the doctor performing a post-

viability abortion weigh the risks to the mother and the risks to

the fetus, and then unilaterally decide which abortion tech-

migue to use. Section 3205(a)1}{iii) requires a doctor only to

tell a woman “the particular medical risks associated with the

particular abortion procedure to be employed.” (emphasis

added) This informed consent section, therefore, permits doc-

tors to conceal the entire weighing process they have under-

taken as mandated by § 3210(b). Women in need of life or

nealth-saving post-viability abortions are never informed of the

availability or risks of alternative abortion procedures. The

woman may never be told that the fetus has been balanced

against her health in the choice of the particular technique or

that other doctors may weigh risks differently.** She may never

25 Although a doctor arguably could add information to explain this,

the protection against civil liability if § 3205 is followed -[see § 3205(d)]

would discourage doctors from deviating from this section.

be given the information which would give her the opportunity

to decide if this is the best doctor or choice for her.”

B. The Informed Consent Requirements Of The Statute

Depend Upon The Interplay Of Sections 3205 And 3208.

The state attempts to disguise the full impact of the in-

formed consent requirements by separating sections 3205 and

3208. (Def.B., p. 65.) Yet the statute plainly states that there is

no informed consent unless the physician or an agent not only

informs the patient of the availability of the material described

in § 3208, but also informs her that the materials describe the

unborn child and offer alternatives, and also answers questions

about the material itself. § 3205(a)(iii).

It is understandable that the State has chosen to downplay

the relationship of the § 3208 maierial to § 3205 in light of its

admission that merely offering this § 3208 information to

women could be detrimental to their health. (Stipulation 109,

J.A. p. 4$a.)

The state further claims that the § 3208 material is not

objectionable because its presentation is optional. This ignores

the fact that many women will believe that the doctor en-

courages and endorses the material, thereby making it not truly

“optional”.”’ Women who are likely to be “traumatized” by

26 In contrast, the Pennsylvania Legislature has comprehensively de-

fined informed consent as it applies to all procedures except abortion. The

“Hutchinson Amendment” to the Health Care Services Malpractice Act, 40

Pa. Stat. Ann. § 1301.10] et seq. (Purdon 1982-83 Supp.) was enacted

specifically to ensure “the patient's right to know the type of treatment that

he is to receive, the risks, the alternatives that are available to him with

respect to treatment as opposed to the problems that the medical profession

faces in connection with the therapeutic process.” Comments of Rep.

Hutchinson, 66 Pa. Legis. J. House, 2318-2319 (July 21, 1975). Thus the law

requires that all patients are informed of “those risks, possible consequences,

and alternatives to treatment that a reasonable patient would consider

material to his decision whether or not to undergo treatment.” 40 Pa. Stat.

Ann. § 1301.103

27 It is unrealistic to assume that a woman in such a stressful situation

will readily distinguish between information she has a “right to review,”

information the doctor “orally” describes to her upon her request or upon

such disclosure will suffer harmful effects whether the mate-

rials presented are mandatory or not. (Stipulation 98, 109,

J.A. pp. 4la, 45a) Only the doctor or trained counselors, in

conjunction with the woman, can know exactly which informa-

tion will contribute to a particular woman’s informed consent.

C. The Statute’s Rote Recitation Requirements Undermine

True Informed Consent for Many Women.

The informed consent provisions of the Abortion Control

Act, §§ 3205 and 3208, are not merely a departure from the

Pennsylvania informed consent law which governs al! other

medical practices.” Sections 3205 and 3208, include several

statements designed to convey to the woman that abortion is

not the best decision.”” The state suggests that any detrimental

the doctor’s own judgment, and information which the state requires. The

§ 3208 material is the only material singled out for special mention, and the

patient will not know if it is “optional” because the state made it so or

because the doctor is holding back necessary information.

28 Compare Sections 3205 and 3208, requiring that the doctor or his

agent recite eight categories of information to each and every abortion

patient with the Pennsylvania “Health Care Services Malpractice Act,” 40

Pa. Stat. Ann. § 1301.101 et seq., which gives physicians great leeway to

provide the patient with information that “a reasonable patient would

consider material to the decision,” and allows the doctor to omit any

information that “would have resulted in a seriously adverse effect on the

patient or on the therapeutic process. . .” 40 Pa. Stat. Ann. § 1301.103

29 ~=—s For examp! =}: 3205(a)(1 (iii) requires that the woman be informed

“that there may be ‘imental physical and psychological effects which are

not accurately forse. ”" § 320S(aX(2Mii) requires that the woman be

informed “that the fath<. Sle to assist in the support of her child, even in

instances where the fain -*fered to pay for the abortion;” and

§ 3205(aX(2)iii) requires that van be informed that she has “the right

to review the printed materia. des.ribed in § 3208.” Section 3208(a)(2)

requires that printed materials d. ibe “the probable anatomical and physio-

logical characteristics of the unbo... child at two week gestational increments

from fertilization to full term”. In addition, § 3208(a)(1) includes a statement

that “[t}he Commonwealth of Pennsylvania strongly urges you to contact

{childbirth and adoption agencies] before making a final decision about

abortion.”

affects can be mitigated suggesting physicians or counselors

“should give additional information which tailors the explana-

tion to each woman’s personal circumstances.” (Def.B., pp.

69-70, n. 24) (emphasis added)

A patient’s confidence and trust in her doctor or counselor,

is an underlying component of informed consent. It is difficuh

to conceive this trust being built when the woman must

differentiate between the doctor’s advice to her, state-required

pronouncements, and “additional information” intended to

supplement or disclaim the government information.

Doctors are required to orally inform the woman that she

has the right to review materials which describe the “unborn

child.” The State does not attempt to suggest what “additional

information” (Def.B., pp. 69-70, n.24) could mitigate the

effects of this on women who are choosing abortion because

the fetus is severely deformed or because their life is in danger. .

The state blithely assumes that graphic descriptions of “the

unborn child” through all stages of pregnancy are relevant to

all women, regardless of their individual circumstances. The

state also assumes that for a pregnant woman, informed

consent invoives only a choice between full-term childbirth or

immediate abortion. (Def.Br., pp. 70-71.) This is not always

true. For some women needing medical treatment of diseases

such as cancer, abortion is one of several options in an

informed consent discussion. If for example, a woman who is

24 weeks pregnant presents with metastatic breast cancer, she

will require chemotherapy to arrest the cancer. Such chemo-

therapy endangers the fetus. The options, therefore, include:

(1) delaying maternal treatment until full term delivery—an

unacceptable maternal risk for most women; (2) performing

immediate abortion and providing immediate treatment to the

woman; or (3) (an in-b..ween choice) delaying 4-6 weeks and

delivering the fetus by cesarean section after maternal treat-

ment with steroids, in an effort to improve fetal survival. The

pregnant woman and her family, depending upon their desire

for an infant and willingness to accept the various risks, should

be informed of these options and be permitted to decide on the

treatment to be given.”

There are other ways in which this statute precludes doctors

from exercising their best medical judgment. Section

3205(a)iii) requires doctors to warn all women of “unforesee-

able” medical risks of abortion, despite the fact that abortion,

particularly early abortion, has been the most studied medical

procedure in the United States. After 15 million abortions,

some risks may be remote but none are “unforseeable.”*'

Even if a woman has already made her decision to abort,

either on her own, in consultation with her personal doctor,

family, clergy, or friends, the doctor is required to make

available information which urges her to further delay her

abortion decision until she has contacted childbirth and adop-

tion agencies. Patients wili be confused and possibly harmed

by a message from the state which urges them to delay the

30 =©Stubblefield, “Some Medical Considerations,” in Rhoden, Stubble-

field, Benshoof & Callahan, Late Abortion and Technological Advances in

Fetal Viability, 17 Fam. Plan. Persp. 160, 162 (1984). Similar options apply

in the choice of treatment for cervical carcinoma. See, Lee, Neglia & Park,

Cervical Carcinoma in Pregnancy, 58 Obstet. & Gynecol. 584, 586-587

(1981). The effects of certain drugs on the fetus constitute a major considera-

tion in pregnancy-associated therapeutics. Barber, Fetal and Neonatal Effects

of Cytotoxic Agents, 58 Obstet. & Gynecol. 415, 425 (1981).

31 Consent does not become “informed” as a result of outdated or

inaccurate information. While once it may have been desirable and accurate

for Pennsylvania to require a warning about “unforseeable risks” due to

abortion, Planned Parenthood Association v. Fitzpatrick, 401 F. Supp. 554

(E.D. Pa. 1975), aff'd mem. sub. nom. Franklin v. Fitzpatrick, 428 U.S. 901

(1976), this is no longer the case. “A clandestine procedure before ‘970,

abortion has been thrust into the medical arena—where procedures can be

performed more safely, techniques improved, and costs reduced. We now

know more about induced abortion than any other surgical procedure.”

Cates, Legal Abortions and Women's Health Gains and Losses in the 1970's

reprinted as Legal Abortion: The Public Health Record, 215 Science 1586

(1982). How can a doctor answer a woman's questions about what these

supposed risks are if he or she doesn't know of any that are “unforseeable”?

abortion when any competent doctor will give the opposite

advice.”

The nonmedical pronouncements required by § 3205 (a)(2)

(i-ii) are likely to raise questions for the woman which medical

personnel are ill suited to answer and which may give some

wome’. false expectations.”

D. The Prepared Speech Requirements Of Sections 3205 And

3208 Are Unconstitutional Under The Standard Set Forth

In Akron.

The Third Circuit was correct in holding the informed

consent requirements imposed by 3205 and 3208 to be squarely

governed by this Court’s decision in Akron, 462 U.S. 416

(1983).

Akron reaffirmed that physicians must be given room to

make medical judgments, not only in the provision of abortion

services but also in “assisting the woman in the decisionmaking

process.” 462 U.S. at 427. Although certain state regulations

may be enacted that impose on the first trimester of pregnancy;

such as the reporting and informed consent requirements

upheld in Planned Parenthood of Central Missouri v. Dan-

forth, 428 U.S. 52 (1976); such regulations are constitutional in

the first trimester only if there is no significant impact on the

woman's exercise of the abortion right and such regulations

are justified by “important state health objectives.” Akron,

462 U.S. at 430. The blanket imposition of §§ 3205 and 3208

violates both these standards. The information is designed to

skew a choice to childbirth, and to interfere with the physi-

32 ~=©Delaying abortion adds directly to the risks of complication and

death. Cates & Grimes, Morbidity and Mortality of Abortion in the United

States, in Abortion and Sterility at 158; Centers for Disease Control, Dept.

of Health and Human Services, Abortion Surveillance 1979-1980 (1983) at

10.

33 National statistics show that as of 1982, 41% of women living with a

child under 21 years of age whose father was not in the household were not

awarded child support, and that less than 50% of the women awarded child

support received the full amount. U.S. Dep't of Commerce, Bureau of the

Census, Current Population Reports, Special Studies, Series P-23, No. 124

(1982).

cian’s best medical judgment; both factors having a significant

impact on the woman. There is no health justification for these

requirements and the state has admitted they may be detrumen-

tal to health. These sections, therefore, constitute an unconsti-

tutional interference with a woman's privacy right. Akron 462

U.S. at 427-431.

E. The Statute Requires The Physician To Be The Agent For

The State’s Campaign To Influence A Woman Against

Abortion In Violation Of The First Amendment.

In the definition section of the statute, 3203, the legislature

defines “unborn child” as “a human being from fertilization

until birth. . . .” The expressed legislative policy of trying to

stop abortion is implemented by forcing doctors to make

pronouncements designed to cast doubt on an abortion deci-

sion and to encourage childbirth. The physician is compelled

to make certain pronouncements for the state with which he or

she might profoundly disagree. As this Court has observed,

“where the State’s interest is to disseminate an ideology, no

matter how acceptable to some, such interest cannot outweigh

an indivicual’s First Amendment right to avoid becoming the

courier for such message.” Wooley v. Maynard, 430 U.S. 705,

717 (1977). See alsu, West Virginia Board of Education v.

Barnette, 319 U.S. 624, 642 (1943).

The dictated counseling requirements would replace the

neutral information now provided, and place “pro-childbirth”

speech in a preferred position. Content-based regulation of

speech requires the strictest scrutiny. See Carey v. Brown, 447

U.S. 455, 461-62 (1980). The impermissibility of this particular

forced speech is underscored by this Court's admonition that

the state cannot adopt one “theory of life” that overrides a

woman’s privacy right. Roe v. Wade, 410 U.S. at 162.”

34 =—s- See brief for the United States as Amicus Curiae in Support of

Appellants at 18.

35 The First Amendment also protects a right to listen and receive

information, see Virginia State Board of Pharmacy v. Virginia Citizens

Consumer Council, Inc., 425 U.S. 748, 756-57 (1976), and it is undisputed

that this includes information about abortion. Bigelow v. Virginia, 421 U.S.

809, 821-22 (1975). The woman listening to the required litany is im every

it THE REPORTING REQUIREMENTS OF SECTION

3214 HAVE A SIGNIFICANT IMPACT ON A WO-

MAN’S ABORTION DECISION WITHOUT FUR-

THERING ANY HEALTH INTERESTS.

The Pennsylvania Abortion Control Act contains two

sections regarding reporting requirements [§§ 3207(b) and

3214(a)-(i)]. Three subparts § 3214(a), (b) and (h) are before

this Court. On June 17, 1985 the district court in this case held

a hearing and enjoined §§ 3207(b) and 3214(f) requiring public

disclosure of the required reports on facilities because they

violated privacy rights. That court made numerous findings of

fact which are applicable to the subsections of the reporting

section that are before this Court.”

A. The New Reporting Requirements Do Not Further Any

Maternal Health Interests.

Abortion providers in Pennsylvania have been reporting

composite data on abortions to the State Health Department

since 1974.°” In turn, the state has routinely submitted the data

to the federal government’s Centers for Disease Control for its

national abortion surveillance work. The new reporting forms

prescribe a separate form and detailed information on each

abortion.** Moreover, the new reporting statute requires each

individual abortion form, as well as separate facility or doc-

tors’ reports, to be disclosed to the public.

sense a captive audience. If she does not go through the required counseling,

she will be unable to obtain an abortion. Because she has no choice but to

listen, her right not to receive information must be especially protected. See

Kovacs v. Cooper, 336 U.S. 77, 86-87 (1949); Public Utilities Commission v.

Po. ak, 343 U.S. 451, 4¢8 (1952), (Douglas, J., dissenting).

36 ~=—- See Findings of Fact, Discussion, Conclusions of Law, and Order,

No. 82-4336 (E.D. Pa. June 17, 1985), (hereafter “Findings of Fact”), a copy

of which is appended to plaintiffs’ brief.

37 ~=See “Quarterly Report of Abortions Performed,” App. B to this

brief at 4a-7a.

38 = See Def. B., p. 55a and § 3214(a).

The appeliants have never justified the many details required

by the reporting section of the Act. Instead, they simply assert

that the information required “in many respects” (Def. B. p.

61) corresponds to national abortion data collected by the

Centers for Disease Control (CDC). However, Pennsylvania,

under its present reporting system, has supplied CDC with all

the data necessary for the abortion surveillance reports.”

Appellants have not given any reason to this Court why public

disclosure of each individual report furthers health interests,

although hey admitted in the district court that the state

interest in the public disclosure sections was not to further

health but to “facilitate the First Amendment rights of those

opposed to abortion.” Findings of Fact, Slip Op. at 37.

The inadequacy of any maternal health interests is further

evidenced by a comparison to the reporting statutes of the

twenty-six other states that have such requirements.’ No other

state requires public disclosure of the reports,*' while twenty-

three states explicitly require confidentiality of the reports.”

39 The specific data reported by CDC for each state includes: 1)

residence status (state versus out of state); 2) age; 3) race; 4) marital status; 5)

number of live births; 6) type of procedure; 7) weeks of gestation; 8) previous

induced abortions; 9) weeks of gestation and procedure; 10) weeks of

gestation and age group; 11) weeks of gestation and race: 12) age group and

race; 13) marital status by race; and 14) death-to-case rate for legal abortions

by type cf procedure, and by weeks of gestation. Preface to Centers for

Disease Control, U.S. Dept. of Health and Human Services, Abortion

Surveillance: Annual Summary 1979-1980 (1983).

40 See List of State Statutes App. C to this brief at 13a.

41 Idaho allows public access to statistical compilations only, based on

the reports. Idaho Code § 39-261(b) (Supp. 1984). Missouri only allows the

statistical data to be inspected and acquired by local state or national public

health officers. Mo. Rev. Stat. § 188.055(2) (Supp. 1982). While these states

allow limited access to the statistical data based on the reports, only

Pennsylvania permits the general public to have access to the actual report

forms.

42 See List of State Statutes on confidentiality, App. D to this brief

at I4a.

B. The Reporting Requirements Of Section 3214 Expose

Women Receiving Abortions To Harassment Because

They Permit Disclosure Of Individual Identities.

Individual women visiting abortion providers or women who

have sought and received abortions have increasingly become

targets of anti-abortion harassmeut.*’ Public disclosure of a

woman’s identity is one form of harrassment.“ The specificity

of the report forms required by § 3214(a)(2)-(14) permit identi-

fication of some of the women by anyone. The statute requires

that the political subdivision in which the woman resides be

reported, (§ 3214(a)(2)); as well as her age, race and marital

status (§ 3214(a)(6)). In Pennsylvania, political subdivision can

include county, town, city, ward, census track, or precinct.

Thus, a political subdivision within the meaning of § 3214

could include an area as large as a thirty mile county (Sullivan)

or as small as a city ward. That fact, combined with details

such as race, age, and marital status could be used to easily

identify a woman who had had an abortio. and who lived, for

example, in a sparsely populated area.”

43 See Findings of Fact and Donovan, The Holy War, 17 Fam. Plan.

Persp. 5 (1985).

44 In a recently published book, J. M. Scheidler, Closed: 99 Ways To

Stop Abortion (lgnatius Press, San Francisco, Cal. 1985), the author, who is

the director of the Pro-Life Action League, goes so far as to recomend the

use of private detectives. The repercussions of being identified can be

devastating. One young woman was thrown out of her home and forced to

drop out of college after an anonymous caller told her parents that she had

been to the Women’s Health Center in Duluth, Minnesota, a facility which

performs abortions. See “Letter from Katherine R. Welsh to Janet Benshoof

(August 2, 1985), App. E to this brief. A lawsuit was brought by another

young woman against an anti-abortion organization and the hospital where

she obtained an abortion after anti-abortion activists informed her parents

by telephone and mail about her recent abortion. The woman's close

relationship with her mother was ruined because of these communications.

Japanga, “Abortion Suit Brought on by Privacy Issue”, The Los Angeles

Times, April 10, 1984 at p. 2.

45 In 1980, there were only six black women of childbearing age living

in Sullivan County. General Population Characteristics, 1980 Bureau of

Census, Pennsylvania, p. 66. Of these women, one was 17 years old, two

were 18, one was nineteen, two were twenty. Thus, the one nineteen-year-old

For women who have had late abortions because of medical

problems or fetal anomalies the loss of anonymity is particu-

larly traumatic because of the additional information the

forms disclose.”

C. The Reporting Requirements Of Section 3214 Permit

Identification Of Doctors Which Will Result In Harass-

ment And Chill Doctors.

A facility, as defined in the § 3203, includes a physician’s

office. The proposed reporting forms require the name and

county of the facility where the reported abortion is per-

formed,” and section 3214(h)(4), relating to abortion compli-

cations, requires the name and address of the facility where the

abortion is performed.“ Any doctor who performs abortions

in his or her office can easily be traced through the informa-

tion supplied on these report forms. This is true despite the

fact 3214(e)(2) allows the physician’s name to be substituted by

an identifying number.

Many doctors, particularly in nonmetropolitan areas, faced

with the prospect of public disclosure of reports by which they

black woman residing in Sullivan County who had an abortion is easily

identified by anyone examining the required report form. A woman living in

a large city such as Pittsburgh could also be identified. For example, in

census tract number 2503 of Pittsburgh, there were only ten white females

aged 20-24. Table P-2, General Characteristics of White Persons: 1980

Census of Population In Housing User’s Guide, Pittsburgh, PA.

46 Section 3211(a) for example requires that the physician indicate the

basis for the medical judgment that abortion is mandated. A woman who

undergoes a late trimester abortion because the fetus has severe congenital

defects, for example, not only loses her anonymity but has no protection

from other intimate details being made available to the general public.

47 Section 3214(a)(1). See also Def. B., p. 55(a) for copies of the

proposed forms. .

48 See Def. B., pp. 56(a)-57(a). Additionally, Section 3207(b), enjoined

by the district court on June 17, 1985, requires additional data on any facility

where an abortion is performed. See Findings of Fact.

may be identified as referring for or performing abortion

procedure, will stop providing this services to women.”

For many women in this country, abortion is not readily

accessible.’ In the last three years, incidents of harassment and

intimidation against doctors and clinic siaff who provide

abortion counselling and procedures have risen in number and

intensity.°' These incidents of harassment have taken place at

clinics, hospitals, and at the homes of doctors and clinic

staff.°* The fear of such incidents will have a chilling effect on

49 See Findings of Fact Nos. 3 and 24. Tracing the identity of a doctor

is facilitated by public access to a great deal of information. For example, a

physician in Mercer County would have to list the name of his or her office

where the abortion was performed, the referring doctor (§ 3214(a)(1)) and/or

the name and address of any parent, subsidiary, or affiliated organization,

corporations, or associations (§ 3207(b)) (currently under a preliminary

injunction, Findings of Fact). Public access to such information negates the

“protection” offered by the statute by its requiring a number in lieu of the

physician’s name. The loss of doctors in nonmetropolitan areas who are

identified and harassed to the point of ceasing to provide abortion services

will greatly burden accessibility to abortion services for many women who

would then have to travel to a city to obtain an abortion. Those that cannot

do that will be precluded from access to abortions. Henshaw, Forrest &

Blaine, Abortion Services in the United States, 1981 and 1982, 16 Fam. Plan.

Persp. 119, 123 (1984).

50 As of 1982, 78 percent of all United States counties have no

identified abortion service providers, while 28 percent of all women of

reproductive age live in such counties. Henshaw, Forrest & Blaine at 123.

51 For example, between }77-1980, there were four reported bombings

and no bomb threats, 35 invasions, one death threat, and five reported

incidents of assaults/batteries. In the period between 1982 and 1985 (as of

July 3rd) these activities had steadily increased. There were a total of 27

reported bombings; 111 bomb threats to clinics; 86 invasions; 13 death

threats; and 18 reported incidents of assaults/batteries. Between 1977-1980

the total number of specific incidents of clinic violence (as reported to the

National Abortion Federation) was 61; between 1981-1985, the total number

of such incidents was 411. Summary of Clinic Violence as Reported to the

National Abortion Federation, a copy of which is being lodged with the

Clerk of the Court by Amicus Curiae National Abortion Federation. See also

Findings of Fact, Nos. 9, 13, 18, 23, 29, 33, 35, 40, 41, 46, 50, 58, 60 and 68

and Stip. J.A. No. 192, pp. 50a-Sla.

$2 Id. Hospitals have proven to be very susceptible to the pressure

exerted by anti-abortion activists. Recent Philadelphia Inquirer articles have

the number of doctors willing to continue to provide abortion

services. Prior to the 1982 Pennsylvania Abortion Control Act,

the Department separated the abortion records submitted by

facilities from the cover sheet which identified the facility.*’

The policy recognized that “certain facilities and physicians

could be pressured and possibly harassed by members of the

public objecting to the medical abortion practice and that such

harassmen could be detrimetal to women’s health” .** Because

appellants have stated that the purpose of public disclosure is

to aid the First Amendment rights of anti-abortionists,”* it is

clear that identification of doctors and patients is a foreseen

The facts clearly indicate that violations of the anonymity of

women and doctors, as well as subsequent harassment is a

reported that two hospitals, Delaware County Memorial and Metropoiitan

Hospital, Springfield Division, have decided to stop performing abortions.

One article noted that Delaware County Hospital took such action after

anti-abortionists picketed “with signs of names of hospital doctors printed

beside the words ‘Baby Killers’.” Solovitch, “Hospital's abortion ban grati-

fies protestors”, Philadelphia Inquirer, May 26, 1985 at pp. 1B, 8B; DiGiro-

lamo, “2nd Hospital to Limit Abortions”, Philadelphia Inquirer, July 4,

1985 at BY. Hospitals are important abortion providers (48 percent nationally

of facilities where abortions are performed.) Henshaw, Forrest & Blaine,

1981-1982 at 123.

53 Findings of Fact, No. 4.

54 Id. The policy also noted that “patient care may suffer if physicians

or abortion clinics are under harassment.” Findings of Fact No. 4.

55 See Findings of Fact, slip op. at 20 and 37. Defendants’ Brief in this

Court omits any reference whatsoever to the district court hearing on the

public disclosure issue, their arguments made therein, as well as that court's

findings and order enjoining §§ 3207(b) and 3214(f) despite the fact the

district court found: “Defendants devote[d] the lion’s share of their initial

memorandum [to the trial court on these sections] to arguing that disclosure

. . « iS justified by the state’s compelling interest in facilitating the First

Amendment rights of those opposed to abortion.” /d. at 37.

56 § 3214(e)4) makes it a misdemeanor of the third degree to disclose

this type of reported information. The fact that the Commonwealth sought

to take some steps (albeit inadequate ones) to protect doctors’ identities by

§ 3214(e) must also be seen as an acknowledgement by defendants of the

dangers inherent in such disclosure.

reality, and will serve to be an effective tactic in deterring

doctors from continuing to perform abortions and women

from obtaining them.”

D. The Reporting Requirements Of Section 3214 Are Uncon-

stitutional.

The reporting requirements significantly burden a pregnant

woman's abortion decision by threatening removal of anonym-

ity—an essential component of her right to privacy. Planned

Parenthood v. Danforth, 428 U.S. at 76. Because they burden

the abortion right and are unjustified by any compelling state

interest they are unconstitutional.

The reporting statute exceeds the strictures imposed by this

Court on recordkeeping requirements. Planned Parenthood of

Missouri v. Danforth, 428 U.S. at 81. Reporting requirements

must “properly respect a patient’s confidentiality and privacy

. . .” Id. at 80. In other instances where personal data is

required to be reported to the state, the legitimacy of such

requirements turns on whether there exist sufficient safeguards

for the protection of the individual’s privacy right.“ No such

$7 See Findings of Fact Nos. 3 and 24.

58 Thus pseudonyms are permitted in cases where women (adult and

minor) have challenged abortion laws, as in Roe v. Wade, 410 U.S. 113, 120,

fn.4 (1973); Doe v. Bolton, 410 U.S. 179, 186 (1973); Beal v. Doe, 432 U.S.

438 (1977); Maher v. Roe, 432 U.S. 464 (1977); Poelker v. Doe, 432 U.S. 519

(1977); and H.L. v. Matheson, 450 U.S. 398 (1981).

59 For example, in Whaien v. Roe, 429 U.S. 589 (1977), where a New

York statute required reporting to the state of those patients who were

prescribed particular drugs this Court noted that such reporting statutes must

“evidence a proper concern with, and protection of, the individual’s interest

in privacy.” Whalen at 605. See also Brown ». Socialist Workers °74 Camp.

Comm. 459 U.S. 87 (1982) regarding campaign disclosure requirements, and

their applicability to minor political parties. Those requirements were held to

be inapplicable to plaintiffs because a showing was made of reasonable

probability of threats, harassment and reprisals based on disclosure. Brown

at 100. As the facts make clear here, (supra at 22-27), public disclosure of the

abortion reports will inevitably lead to the identification of individual women

and doctors and subject them to acts of harassment and intimidation, as well

as possible violence.

safeguards exist under this Statute and it is therefore unconsti-

tutional.

IV. THE SUPREME COURT'S DECISION IN AKRON

SETTLED THE LAW AS TO THE CONSTITUTIONAL

STANDARD GOVERNING STATE STATUTES REGU-

LATING ABORTION.

This Court most recently reaffirmed the constitutional prin-

ciples established in Roe v. Wade, 410 U.S. 113 (1973) in the

case of City of Akron v. Akron Center for Reproductive

Health, 462 U.S. 416 (1983), in which the Court held unconsti-

tutional various provisions of the City of Akron’s abortion

ordinance. The Akron Court's clear rearticulation of the ana-

lytical framework set forth in Roe has provided strong guid-

ance to the courts and a clear message to the state legislatures

that laws that substantially burden access to abortion absent a

compelling state interest will not withstand judicial scrutiny.

A number of cases involving state anti-abortion laws similar

to those at issue in Akron and Ashcroft, were pending at the

time of this Court’s decisions in those cases. This Court’s

decisions provided clear guidance on these statutes and those

cases were expeditiously resolved.”

60 In the aftermath of the Akron and Ashcroft decisions, a significant

number of those cases still pending were resolved through consent decrees

and stipulations by the parties. Bagley v. Wilkinson, No. C-81-603W (D.

Utah Dec. 2, 1983) (stipulation); Christensen v. Wisconsin Medical Examin-

ing Board, S5\ F.Supp. 565 (W.D. Wisc. 1982), (August 1983) (joint motion);

Miks v. Olson, Civ. No. A3-82-78 (D.N.D. Aug. 25, 1983) (stipulation); Poe

v. Dep't of Public Health, C.A. 78-C-4126 (N.D. Ill. 1983); Glick v. Bryan,

CV-R-81-150 (BRT) (D. Nev. Aug. 29, 1984) (consent decree). In the

remainder of the cases, the courts held a variety of these laws unconstitu-

tional (Charles v. Carey, 579 F.Supp. 377, 579 F.Supp. 464 (N.D. Ill. 1983);

Margaret S. v. Treen, 597 F.Supp. 636 (E.D. La. 1984); Eubanks v. Collins,

No. C 82-0360 L(A) (W.D. Ky. Sept. 11, 184); Munson v. Meierhenry, No.

80-3043 (C.D.S.D. Sept. 29, 1983); Women’s Communit» Health Center, Inc.

v. Tierney, Nos. 79-162 P, 79-165-P (D.Me. Sept. 9, 1983)) while upholding

requirements that do “not interfere with physician-patient consultation or

with the woman's choice between abortion and childbirth.” Akron, 462 U.S.

at 430.

ie.

The Court’s strong reaffirmance in Akron of Roe has

apparently been a major force in curtailing the enactment of

state laws which uaconstitutionally infringe on a woman’s

right to abortion. In 1979, the year following the passage of

the Akron Ordinance, the highest number of abortion-related

laws since Roe v. Wade—41—were enacted. Legislation pat-

terned after the Akron Ordinance was enacted in 10 states that

year.*' Subsequent to 1979, apparently in response to the

repeated failure of these statutes to withstand constitutional

challenges, the number of laws designed to limit access to

abortion began to decline. By 1982, only 15 abortion-related

state laws were enacted.” In 1984, only one state enacted a

comprehensive anti-abortion statute.*’ The Court’s refusal to

retreat from the principles established in Roe v. Wade and

consistently applied in its subsequent decisions has clarified the

law for courts and legislatures.

61 Donovan, Fertility-Related State Laws Enacted in 1981, 14 Fam.

Plan. Pers. 63, 66 (1982); 8 Family Planning/Population Reporter 77 , 92-98

(1979).

62 Bush, Fertility-Related State Laws Enacted in 1982, 15 Fam. Plan.

Persp. 111 (May/June 1983).

63 The Alan Guttmacher Institute, Lec: arive Recorp, State Legisla-

tures— 1984 Bills Enacted (1984).

CONCLUSION

For the foregoing reasons, this Court should affirm the

judgment of the court of appeals from which the appeal is

taken. In the alternative, this Court should dismiss the appeal

for want of finality, consider the appeal papers as a petition for

writ of certiorari and deny that petition.

Respectfully submitted,

NAN D. HUNTER

JANET BENSHOOF

SUZANNE M. LYNN

VERNA C. SANCHEZ

American Civil Liberties

Union Foundation

132 West 43rd Street

New York, New York 10036

(212) 944-9800

Attorneys for Amici Curiae

August 27, 1985

APPENDIX A

BOULDER ABORTION CLINIC PC.

1130 Alpine Avenue

Boulder, Colorado 80302

(303) 447-1361

Warren M. Hern M.D., M.PH.

Diplomat, American Board of Preventive Medicine

Fellow, American College of Preventive Medicine

28 June 1985

132 West 43rd Street

New York, New York 10036

Dear Ms. Benshoof:

In response to your request for information concerning the use

of the dilatation and evacuation (D & E) procedure for abor-

tions past the time of fetal “viability”, | can give you three

examples in my recent experience.

Before describing these examples, however, | would like to

point out that the definition of fetal “viability” is subject to

various interpretations and is constantly changing. One defini-

tion utilizes a length of gestation counting from the beginning

of the last normal menstrual period (LNMP); another way of

estimating “viability” is according to birth weight. The classi-

cal definition of the first is 26-28 menstrual weeks’ gestation. It

would be difficult to find anyone, even physicians opposed to

abortion, who would contend that a fetus is viable at 24 weeks

or earlier, principally because fetal lung development is so

inadequate at that stage. It would similarly be difficult to find

evidence of fetal viability for individuals with birth weights of

500 grams or less. Above these points, however, there are

numerous instances of survival, albeit with severe handicaps. It

is questionable whether 500-1000 grams or 26-28 weeks consti-

tutes a lower limit of “viability” because the survival rate is so

There being a recognizable percentage of survival of individ-

uals born with weights between S00-1000 grams, however, it is

possible to say that abortions by D & E are routinely done at

the lower limits of this range. For example, in my paper,

“Serial multiple laminaria and adjunctive urea in late outpa-

tient dilatation and evacuation abortion” (Obstet Gynecol

63:543, 1984), | described a series of 1000 patients from 17

through 25 menstrual weeks whose abortions were performed

by the D & E method. Twenty of these patients, through

preoperative diagnostic error, were at 25 weeks’ gestation, with

fetal weight: r? ging up to 906 grams. There were no major

complications in this group, and the overall major complica-

tion rate for the entire series was 0.3%, demonstrating the

safety of the method.

In another paper, “Correlation of fetal age and measurements

between 10 and 26 weeks of gestation” (Obstet Gynecol 63:26,

1984), I established recommended values for determining fetal

age during that portion of pregnancy. Recommended values for

fetal weights for weeks 23-26 were all above 500 grams.

Without searching for extreme examples, therefore, it can be

demonstrated that the D & E method can be used for the

termination of pregnancies beyond the early stage of viability,

at least, with superior safety, aside from the medical indica-

tions for abortion in a particular case. The method is fully

— in my textbook, Abortion Practice (JB Lippincott,

As for extrem> cxamples, three cases illustrate the utility and

safety of the D & E method when abortion is indicated well

past the most conservative lower limit of fetal viability.

CASE 1

The patient is a 28 year old woman, a health professional in

excellent health, who was found to be carrying a fetus with a

lethal defect, thanatophoric dwarfism, at 26 weeks’ pregnancy.

The pregnancy was desired. The diagnosis was made during a

routine ultrasound evaluation. By the time the diagnosis was

made and a decision to terminate the pregnancy was made, the

patient was past the limit for performance of abortion in her

state. She contemplated travel to Japan for abortion. She also

contemplated suicide. She was, in fact, severely depressed and

suicidal at one point. Thanatophoric dwa’ fism is a rare condi-

tion in which the fetal lungs cannot develop and function

normally, principally due to restriction of the thoracic cavity.

When the patient was referred to me, she was approximately 30

weeks pregnant. I performed a D & E abortion by the method

described in the first paper (63:543, 1984), without serious

difficulty. Blood loss was 250cc. Fetal weight was 1247 grams.

The patient recovered without incident. The diagnosis of

thanatophoric dysplasia was confirmed by histopathologic

study of fetal tissues.

CASE 2

The patient is a 24 year old woman, an X-ray technician in

excellent health, whose pregnancy was planned and desired.

The presence of spina bifida was discovered during a routine

ultrasound examination, and a decision was made soon after to

terminate the pregnancy. The patient was distraught about the

diagnosis but determined with her husband that it would be

wnwise to carry the pregnancy to term. At the time of her

referral, she was approximately 27 weeks from LNMP. Abor-

tion was performed using the D & E method as described in the

first paper (63:543, 1984) without difficulty. Blood loss was

2Sec. Fetal weight was 1049 grams. A severe neural tube defect

was present in the fetus. The patient recovered uneventfully

and experienced no complications.

CASE 3

The patient is a 28 year old Native American woman with a

history of alcoholism and peritoneal adhesions due to previous

complicated abdominal surgery. She was found to be carrying a

fetus with severe hydrocephalus at 27 weeks from LNMP

Abortion was performed without difficulty using the D & E

method described in the first paper (63:543, 1984). Blood loss

was 350cc. Fetal weight was 686 grams. The patient recovered

uneventfully and experienced no complications.

While I have not included them here, I have seen numerous

other cases of severe fetal deformity in which the method of

choice for abortion was the D & E method, but most patients

presented themselves for treatment before 24 menstrual weeks’

gestation. In one case, a woman was referred from Florida

with a a diagnosis of conjoined twins. Aside from the fact that

the defect was clearly fatal for the fetus(es), carrying the

pregnancy to term would have presented a severe hazard to the

woman’s life. Any other method of abortion would have

resulted in severe risks te her life and, in the case of hystero-

tomy, a 100% risk of major complication. The abortion was

performed by D & E without difficulty and with no complica-

tions.

Thank you for inviting be to comment on this issue.

Sincerely,

/s/ WARREN M. HERN, M.D.

Warren M. Hern, M.D., M.PH.

APPENDIX B

Commonwealth of Pennsylvania

Department of Health

QUARTERLY REPORT OF ABORTIONS PERFORMED

Under Act 209, September 10, 1974 of the General Assembly

of the Commonwealth of Pennsylvania, the Abortion Control

Act, Chapter 35 PS. § 6606(e), every facility in the Common-

wealth of Pennsylvania in which an abortion is performed is

required to file with the Department of Health a Teport

showing the total number of abortions performed within that

hospital or facility during that quarter year.

The reporting quarters are:

First — January | through March 31

Second — April | through June 30

Third — July 1 through September 30

Fourth — October | through December 31

A report must be filed, even though no abortions were per-

formed.

Please note the five tables included in this report have been

revised to give more complete information and to comply with

the requirements of the Abortion Control Act. All tables must

be completed.

For your convenience, two copies of this form are being sent to

you. The original, when completed, is to be returned to the

Department of Health, the second is for the facility’s records.

Reports are due in the Department within 30 days of the end of

the quarter.

Send to:

State Health Data Center

Division of Health Statistics and Research

Pennsylvania Department of Health

Room 126, Health and Welfare Building

P.O. Box 90

Harrisburg, Pennsylvania 17108

QUARTERLY REPORT OF ABORTIONS PERFORMED

Facility Reporting

Quarterly Report for the ist, 2nd, 3rd or 4th Quarter (circle

one).

Person to contact for any questions regarding data

TABLE 1

INDUCED ABORTIONS BY TIME

Number Of

Time Pe iod Abortions

Weens Elapsed oy

From 181 Dey of

Weeks of OR Lest Mensrve!

Gerretion Period

0 - 8 o_- 10

=) - 10 ° 171 - 12

11 = 12 13 = 14

13 - 15 § = 17

116 — 20 ee = 22

1 = 24 23 = 26

25 + 27+

Ur ‘hk OwnN

cova,

TABLE 2

INDUCED ABORTIONS BY TYPE OF PROCEDURE

Numoe Of

owe Procedure Abortions

Sictior Qret: age

[ esoee

intra-uterine

Sa'ine ingtifiation

invre-wter ine

Proragendin

Instiilatron

Hyrectomy

Mysterectomy

Othe:

Unknown

vane

TABLE 3

INDUCED ABORTIONS BY AGE OF WOVEN

Wunbe CO

Age Abo-bors

= 1.

SUB TOTAL

20 - 26

2& - 29

10a

TABLE 4

NUMBER OF CONDITIONS AND COMPLICATIONS

OF INDUCED ABORTIONS

WO CONDITIONS OR COMPLICATIONS |

COMPLICATIONS

Memo--hage

infex on

Ure ore Peforasion

Ce. ca’ Laces" or

Revs “ec Products

—_ .

CONDITIONS DISCOVERED

Rupes > sease

Hyoe'c Moe

E-doce.-ca Po'yc

Me grences

Orne

TOTAL

= ae

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APPENDIX C

STATE STATUTES WHICH HAVE

REPORTING REQUIREMENTS

Fla. Stat. Ann. § 390.002 (Supp. 1985); Ga. Code Ann. § 16-

12-141(d) (1984 & Supp. 1985); Hawaii Rev. Stat. § 338-9

(Supp. 1984); Idaho Code § 39-261 (Supp. 1984); Ill. Ann.

Stat. ch. 81-30, § 10 (Supp. Smith-Hurd 1985); Ind. Code

Ann. § 35-1-58.5-5 (Burns 1979 & Supp. 1984); La. Rev. Stat.

Ann. § 40:1299.35.10 (Supp. West 1985); Me. Rev. Stat. Ann.

Tithe 22, § 1596(2) (1980 & Supp. 1984-1985); Mich. Comp.

Laws Ann. § 333.2835 (1980 & Supp. 1985); Minn. Stat. Ann.

§ 145.413 (West Supp. 1985); Mo. Rev. Stat. § 188.052 (Supp.

1982); Mont. Code Ann. § 50-20-110 (1983); Neb. Rev. Stat.

§ 28-343 (1979); Nev. Rev. Stat. § 442.260(2) (1979); N_M.

Stat. Ann. § 24-14-18 (1978 & Supp. 1984); N.Y. Pub. Health

Law § 4160(2) (McKinney 1977 & Supp. 1984-1985); N.C.

Gen. Stat. § 14-45.1(c) (1981); N.D. Cent. Code § 14-02.1-07

(1981 & Supp. 1983); Okla. Stat. Ann. tit. 63, § 1-739 (West

1984 & Supp. 1984-1985); Or. Rev. Stat. Tit. 36, Chap. 435

(1983); S.C. Code Ann. § 44-41-60 (Law. Co-op. 1985); S.D.

Codified Laws Ann. § 34-23A4-19 (1977 & Supp. 1984); Tenn.

Code Ann. § 39-4-203 (1982 & Supp. 1984); Utah Code Ann.

§ 76-7-313 (Supp. 1983); Va. Code § 32.1-264 (1985); and Wyo.

Stat. § 35-6-108 (1977 & Supp. 1985). States without reporting

Statutes voluntarily report to CDC.

i4a

APPENDIX D

STATE STATUTES WHICH REQUIRE

CONFIDENTIALITY OF REPORTS

Fla. Stat. Ann. § 390.002(3) (Supp. 1985); Ga. Code Ann.

§ 16-12-141(d) (1984 & Supp. 1985); Idaho Code § 39-261

(Supp. 1984); Ill. Ann. Stat. ch. 81-30, § 1012) (Supp. Smith-

Hurd 1985); La. Rev. Stat. Ann. § 40:1299.35.10 (Supp. West

1985); Me. Rev. Stat. Ann. tit. 22, § 1996(2) (1980 & Supp.

1984-1985); Mich. Comp. Laws Ann. § 333.2835(4) (1980 &

Supp. 1985); Minn. Stat. Ann. § 145.413 (West Supp. 1985);

Mo. Rev. Stat. § 188.055(2) (Supp. 1982); Mont. Code Ann.

§ 50-20-110¢5) (1983); Neb. Rev. Stat. § 28-3410) (1979);

Nev. Rev. Stat. § 442.260(2) (1979); N.M. Stat. Ann. § 24-14-

18 (1978 & Supp. 1984); N.C. Gen. Stat. § 14-45. lic) (1981);

N.D. Cent. Code § 14-02.1-07(1 Mb) (1981 & Supp. 1983);

Okla. Stat. Ann. tit. 63, § 1-738(c) (West 1984 & Supp.

1984-1985); Or. Rev. Stat. Tit. 36, Chap. 435 (1983); S.C.

Code Ann. § 44-41-60 (Law. Co-op. 1985); S.D. Codified

Laws Ann. § s4-234-19 (1977 & Supp. 1984); Tenn. Code Ann.

§ 39-4-203 (1982 & Supp. 1984); Utah Code Ann. § 76-7-313

(Supp. 1983); and Va. Code § 32.1-264(b) (1985).

1Sa

APPENDIX E

WOMEN’S HEALTH CENTER

610 Medical Arts Building, 324 West Superior Street

Deluth, Minnesota 55802 (218) 727-3352

A non-profit clinic for birth control and reproductive choice

August 2, 1985

Janet Benshoof

American Civil Liberties Union

132 West 43rd Street

New York, New York 10036

Dear Janet:

The Women’s Health Center of Duluth is one of the many

medical facilities providing abortion services throughout the

country were staff and patients have come under increasing

harassment from anti-abortion activists. Not only have I re-

ceived disturbing phone calls at my home from these activists,

but several incidents in which anti-abortion activists have

identified our patients and contacted their homes have been

brought to my attention.

One of the most disturbing of these incidents involved a

situation in which an anti-abortion activist called the parents

of am ecighteen-year-old patient several times and told the

parents that she (the young woman) had been to our facility

and that our facility performs abortions. It appears that the

anti-abortion activist identified the patient by her high school

sweater through the school yearbook. Because of this disclo-

sure the young woman was thrown out of her parents home

and had to drop out of college.

| recently received an angry phone call from the older sister

of a young woman who had just had an abortion performed at

our clinic. The woman complained that a letter bearing our

l6a

address had been sent to the patient’s parents’ home pleading

that she not have an abortion. The letter was signed by a

woman known to me as an anti-abortion activist. | explained

that the letter was not sent by anyone from the Women’s

Health Center and a check of the patient’s file showed that her

parents address was not in the file. Somehow, the anti-abor-

tion activist had been able to identify the young woman and

obtain her address.

The patients gave me permission to sent the attached letters.

Sincerely,

/s/ KATHERINE WELSH

Katherine R. Welsh

Executive Director

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.