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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0056%3A20

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1986
- **Citation:** 476 U.S. 747

## Text

{ | Supreme Court, U.S.
FILED
No. 84-495 AUC 80 i985

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985
—————_—____
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

~ BEST AVAILABLE COPY

TABLE OF CONTENTS

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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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15

16

19

21

IV

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
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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
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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

21

23

24

27

28

30

iV

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 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.

3a

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.

4a

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.

Sa

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:

6a

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

7a
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+
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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
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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0056%3A20. Public record. Not legal advice.